Wallace v. State

Citation63 Md.App. 399,492 A.2d 970
Decision Date01 September 1984
Docket NumberNo. 1334,1334
PartiesLorenzo J. WALLACE v. STATE of Maryland. ,
CourtCourt of Special Appeals of Maryland

Jose Felipe Anderson, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Valerie W. Loftin, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. and Perry Lericos, Asst. State's Atty. for Baltimore City, Baltimore, on the brief), for appellee.

Argued before MOYLAN, BISHOP and ROBERT M. BELL, JJ.

BISHOP, Judge.

In a court trial in the Circuit Court for Baltimore City appellant, Lorenzo Wallace was convicted of daytime housebreaking, 1 breaking and entering a dwelling house 2 and theft of goods valued in excess of $300.00. 3 He was sentenced to three years incarceration and five years probation upon release and ordered to pay $1,288.00 restitution to the victim within five years after his release from prison.

Appellant asserts that:

I. The evidence was insufficient to convict him of daytime housebreaking or breaking and entering a dwelling house.

II. The trial court erred in allowing the State to adduce irrelevant evidence.

III. The court erred in admitting evidence as to the value of the property stolen.

IV. The court erred in ordering appellant to make restitution without first inquiring into his ability to do so.

FACTS

Irving Greenberg testified that he was the owner of a two story building known as 4703 Homer Avenue, in Baltimore City. In March of 1982 he leased the three bedroom home to the Johnson family under an agreement which provided for a week to week tenancy. When, on Friday, August 6, 1983, the weekly rent was several days overdue, Mr. Greenberg telephoned Mrs. Johnson who informed him that she and her family had moved out of the apartment "during the week," but that she had secured the apartment before vacating.

Immediately, Mr. Greenberg went to 4703 Homer Avenue. He discovered that the front door was ajar and the rear "trap door" was "forced open." He described the premises as being in a "Helter Skelter" condition. The light fixtures and wall switches had been removed as well as a 54 inch cabinet sink and all its plumbing. He also discovered that the toilet seat, wash basin and medicine cabinet had been removed from the bathroom. Mr. Greenberg prepared a list of these and additional miscellaneous missing items, which was admitted into evidence. He testified that he had not given appellant permission to enter the premises.

The State also presented testimony that on two separate occasions during the first week of August, 1983, appellant was seen walking in the alleyway in between 4701 and 4703 Homer Avenue. On the first occasion, he was seen carrying a toilet seat top which he later placed in a green "Cougar" automobile. On the second, he was seen carrying three 18' metal pipes. According to the first witness, the Johnson family had moved out of 4703 Homer Avenue several days prior to the day he observed appellant.

Appellant testified that he was generally at home during the first week of August because his car, a lime green Cougar, was inoperable. This was corroborated in testimony from appellant's mother. Appellant further testified that up until early August he had been working full time for a real estate company, helping to renovate apartments in preparation for sale. According to appellant, the company provided brand new materials for each job.

One of appellant's co-workers was Calvin Johnson, who was also one of the former tenants of 4703 Homer Avenue. In addition to his job with the real estate company appellant occasionally helped Mr. Johnson complete the latter's independent home improvement jobs, usually by painting. Appellant stated that he also did home improvement jobs on his own, without Johnson, but that he did not work independently while he was working for the real estate company.

I. Sufficiency of the Evidence

In reviewing the sufficiency of the evidence, the test is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt" Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830 (1980). Where, as here, the trial was before the court, we will review both the law and the facts, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous. Md.Rule 1086.

Appellant argues that the evidence failed to show that the structure he broke was a "dwelling house" within the meaning of Art. 27 §§ 30(b) and 31A. Since by the time of the breaking the Johnsons had permanently vacated their apartment and no new tenants had yet moved in, appellant contends that the lower court's finding that 4703 Homer Avenue was a dwelling house was incorrect as a matter of law. We agree.

Art. 27, § 30(a) "creates the offense of statutory burglary. Its material difference from the daytime housebreaking provision [ § 30(b) ] lies in the designation of the time of day of the two offenses." Kanaras v. State, 54 Md.App. 568, 580, n. 4, 460 A.2d 61, cert. denied, 297 Md. 109 (1983). Moreover, breaking and entering a dwelling house, under § 31A, is a lesser included offense of burglary. Johnson v. State, 38 Md.App. 100, 108, 379 A.2d 436 (1977), cert. denied, 252 Md. 734 (1978). Therefore, "[d]ecisions interpreting 'dwelling house' under the burglary law are fully applicable in our analysis of what constitutes a dwelling house" under the daytime housebreaking and breaking and entering statutes. See Kanaras, 54 Md.App. at 580, 460 A.2d 61.

In the course of interpreting the term "dwelling house," this Court observed that statutory burglary must be construed "in light of the common law ... [and that] we must examine the purpose at common law of imposing punishment for ... burglary." Kanaras, 54 Md.App. at 581, 460 A.2d 61.

[T]he law of burglary was developed for the purpose of protecting the habitation of an individual. See Arnold v. State, 7 Md.App. 1 ... (1969).

That every man's house is "his castle" is a concept that has been echoed down through the ages and the social interest in the security of the "castle" has its origin in antiquity; for just as an animal or a bird resents any instrusion into its place of abode, so no doubt did primitive man. The terms commonly used to indicate the place are "dwelling" or "dwelling house," but the "word 'dwelling' imports a human habitation," and as a matter of common law, burglary is strictly an offense against the habitation.

Kanaras, 54 Md.App. at 581-82, 460 A.2d 61. (quoting R. Perkins, Criminal Law (3d ed. 1982) at 255-56).

The test for determining if building is a "dwelling house" is whether "it is used regularly as a place to sleep." Poff v. State, 4 Md.App. 186, 189, 241 A.2d 898, cert. denied, 251 Md. 751 (1968); however,

[t]he mere fact that a house was built for the purpose of serving as a place of human habitation, and that it is entirely suitable therefor, will not be sufficient to qualify it as a dwelling so far as the law is concerned. It is not such before the first dweller has moved in nor after the last dweller has moved out with no intention of returning, except that if an owner who has left with the intention of returning has rented the place in the meantime it might well be held that it is re-established as his dwelling after the tenant has left permanently even before the owner has actually moved back. But, after a man has established a house as his dwelling it retains this character so long as he intends it to be his place of habitation even though he and his entire household are away.

Perkins, supra, (2d ed. 1969) at 202-3 (footnotes omitted). See also, Wharton's Criminal Law, (Torcia, 14th Ed.1980) § 335, at p. 207 (If a person leaves his dwelling house intending never to return, it ceases to be a dwelling house and does not become a dwelling house again until another person begins to live in it and to use it regularly for sleeping); Clark & Marshall, Law of Crimes, (7th Ed.1967) § 13.02, p. 989. (If the occupant of a house locks it up and leaves it, without intending to return, it ceases to have the character of a dwelling house.)

It is undisputed that a short time before the breaking, Mr. Greenberg's tenants, the Johnson family, moved out of 4703 Homer Avenue without any intention of returning. Also, there was no evidence that Greenberg had ever lived, or intended to live, in the apartment. Under such circumstances, because the structure does not qualify as a "dwelling house" it is generally held that a conviction for burglary cannot stand, although the accused may be guilty of a related offense not involving the element of a "dwelling house." See, e.g., People v. Valdez, 203 Cal.App.2d 559, 21 Cal.Rptr. 764 (1962) (Tenant had moved one week prior to breaking and new tenant was not scheduled to move in until 4 days after breaking); Santistevan v. People, 177 Colo. 329, 494 P.2d 75 (1972) (Breaking occurred in between rentals); Johnson v. State, 190 So.2d 601 (Fla.Dist.Ct.App.1966) (Vacant dwelling although put up for rent, was not being used or occupied as dwelling at time of breaking); Haynes v. State, 180 Miss. 291, 177 So. 360 (1937) (Residents of house moved out permanently on day before burglary); State v. Ferebee, 273 S.C. 403, 257 S.E.2d 154 (1979) (Tenant had vacated premises and owner never occupied or intended to occupy premises); Moss v. State, 574 S.W.2d 542 (Tex.Crim.App.1978) (Breaking occurred in between rentals and apartment was empty but for fixtures, appliances and mattress with boxspring.)

We set out the rule in Maryland in Marston v. State, 9 Md.App. 360, 264 A.2d 127 (1970) in which appellant, John Marston, and his brother Donald were convicted of burglarizing Donald's former residence. The...

To continue reading

Request your trial
32 cases
  • In re Levon A.
    • United States
    • Court of Special Appeals of Maryland
    • 3 Diciembre 1998
    .......         Mary Ann Ince, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, and Patricia Jessamy, State's Attorney for Baltimore City on the brief), Baltimore, for appellee. .         Argued before HARRELL and HOLLANDER, JJ., and ALBERT J. ...Moreover, it is well settled that proof of market value "may be indirect as well as direct." Wallace v. State, 63 Md.App. 399, 410, 492 A.2d 970 (quoting Vucci v. State, 13 Md.App. 694, 701, 284 A.2d 646 (1971)), cert. denied, 304 Md. 301, ......
  • Pitt v. State, 1264
    • United States
    • Court of Special Appeals of Maryland
    • 23 Septiembre 2003
    ......         An owner of goods is presumptively qualified to provide testimony regarding the value of his goods. Cofflin v. State, 230 Md. 139, 142, 186 A.2d 216 (1962) ; Christian v. State, 65 Md.App. 303, 308, 500 A.2d 341 (1985) ; Wallace v. State, 63 Md.App. 399, 410-11, 492 A.2d 970 (1985) . Although the test for the value of stolen goods is market value, "proof of market value `may be indirect as well as direct.'" Wallace, 63 Md.App. at 410, 492 A.2d 970 (quoting Vucci v. State, 13 Md. App. 694, 701, 284 A.2d 646 (1971) ......
  • Hudson v. State
    • United States
    • Court of Special Appeals of Maryland
    • 2 Octubre 2003
    ......335, 753 A.2d 1032 (2000), Judge Moylan pointed out that "[w]hen evidence is received without objection, a defendant may not complain about the same evidence coming in on another occasion even over a then timely objection." Id. at 26-28, 748 A.2d 1 (citing cases). See also Wallace v. State, 63 Md.App. 399, 409, 492 A.2d 970, cert. denied, 304 Md. 301, 498 A.2d 1186 (1985). .          13. While we have indulged appellant on the preservation issue by entertaining his challenge generally to the recitation of Detective Jones's interview with Eva Coleman, we note ......
  • Hobby v. State, 33
    • United States
    • Court of Appeals of Maryland
    • 24 Enero 2014
    ...... The former is a proper subject of burglary; the latter is not. Id. at 133, 962 A.2d at 1005 (emphasis in original) (internal quotation marks omitted) (quoting Wallace v. State, 63 Md.App. 399, 407, 492 A.2d 970, 975, cert. denied, 304 Md. 301, 498 A.2d 1186 (1985)). And, in McKenzie, id. at 133, 962 A.2d at 1007, we stated: “To the extent that any of the case law developed in the Court of Special Appeals intimates to the contrary, [ i.e., that a unit ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT