Opinion
Court of Appeals No. A-9295.
May 2, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-04-2011 CR.
Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. MÁrquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
Tommie E. Smith was convicted, in a bench trial before Superior Court Judge Philip R. Volland, of one count of burglary in the first degree. Smith was also convicted of two counts of assault in the fourth degree, one count of criminal mischief in the fourth degree, and one count of cruelty to animals. Smith appeals, arguing that the State presented insufficient evidence to support his conviction for burglary in the first degree. Smith contends that the evidence was insufficient to show that he intended to commit a crime inside the victim's residence when he entered the residence. We conclude that the evidence was sufficient to establish this element. We therefore affirm Smith's conviction.
AS 11.46.300(a)(1).
AS 11.41.230(a)(1) (a)(3).
AS 11.46.484(a)(1).
AS 11.61.140(a)(1).
Factual and procedural background
Around 11:00 a.m. on February 27, 2004, Smith knocked on the front door of Gale Keppler's home in the Spenard area of Anchorage. Keppler was working in another room of the house and did not immediately respond. The knocking continued and Keppler went to a window to see who was at the door. The person who was knocking had begun to walk away down her driveway; she did not know who it was at that time. She later identified this person as Smith.
A few hours later, around 2:00 p.m., Smith entered the administrative portion of the First United Methodist Church in downtown Anchorage. Smith asked an employee, Corrine Osborn, if he could use the phone to call the police. Smith stated that he wanted to use the phone because people were following him. Osborn directed Smith to a phone in the hallway. Instead of using the phone, Smith asked where the restroom was located. Osborn directed Smith to a restroom down the hall and returned to work.
Osborn could hear that Smith had not entered the restroom but had continued down the hall toward a room where a meeting was in progress. When Osborn went down the hall to check on Smith, Smith again asked her again where the phone was. Osborn pointed to the phone and watched Smith randomly punch numbers without actually making a call. Osborn returned to her office while Smith put the phone down and began to walk back toward the meeting room. Osborn called out to Smith and he entered her office.
Smith spoke to Osborn in a low voice, saying he knew who she was and what she was doing. He began to move around the desk toward her. Smith then pulled something from his pocket and raised his hand as if he was going to strike Osborn. Osborn shielded her face with her arms and yelled for help. Smith lowered his arm and began to walk away, but when no one came to Osborn's aid, he started to come back at her. Osborn then noticed a man walking in the hallway and she screamed for him to help. The man immediately started toward Osborn, and Smith fled the church.
Just before 3:00 p.m., Smith arrived at the Aurora Village Carrs grocery store where his grandmother, Wendelin Smith, was working as a checker. Wendelin Smith noted that her grandson was acting odd and had caused concern among the customers in her check-out line. She asked him to wait for her in the employee break room until she got off work. When she arrived in the break room a few minutes later, Smith was gone.
Smith returned to the doorstep of Keppler's home around 4:00 p.m. Keppler stepped into the home's arctic entryway to answer the door; she closed the inner door behind her in order to prevent her dog, a German Shepard-mix named Teresa, from coming to the exterior door. Keppler opened the exterior door. Smith did not say anything but stared directly at Keppler without blinking. Smith then moved toward the door as if he was going to enter Keppler's home. She blocked his entry with her arm, told Smith he could not enter her house, and began to close the door. Smith pushed forward and grabbed her wrist, apparently trying to push Keppler back into the house. Keppler stepped to the side in order to throw Smith off-balance, and escaped out the exterior door.
Smith, now inside the house, closed the exterior door, leaving Keppler outside. Keppler tried unsuccessfully to open the door. She eventually backed away from the house, toward her car in the driveway. Smith came outside and began to walk toward Keppler. Keppler asked Smith what he wanted and suggested that they talk. Smith suggested that she return to the house with him so that they could talk, but Keppler refused. Smith again began to approach Keppler and she fled down the driveway to a neighbor's house where she called the police.
The police surrounded the house and, over the next two hours, attempted to persuade Smith to come outside. During the standoff the police heard Keppler's dog, Teresa — who was trapped inside the house with Smith — yelp several times and run toward the windows.
The police finally convinced Smith to come outside the house. Smith was covered in blood, to the extent that it had soaked through to his underwear. Once outside, Smith refused to comply with police commands. The police finally took Smith into custody after subduing him with a taser gun. When Keppler was allowed to go back inside her home, after 6:00 p.m., she found blood in nearly every room of the house, including on the floor, walls, and ceiling. There were bloody paw prints on the windows. Teresa was found dead in a back closet having suffered multiple stab wounds. Four kitchen knives and a serving fork were covered in blood and dog hair; each utensil was bent or broken from the force of the blows.
Smith was indicted on one count of burglary in the first degree for unlawfully entering Keppler's home with the intent to commit an assault. Smith was also charged by information with two counts of fourth-degree assault (separate counts for conduct toward Osborn and Keppler), one count of fourth-degree criminal mischief, and one count of cruelty to animals. A two-day bench trial was held in January 2005, before Judge Volland. On January 13, Judge Volland found Smith guilty on all counts. Judge Volland sentenced Smith to a composite term of 30 months to serve, 2 years of suspended time, and 6 years of probation following Smith's release from incarceration.
Why we uphold Judge Volland's verdict finding Smith guilty of burglary
A person commits first-degree burglary if the person enters a dwelling with intent to commit a crime in the dwelling. First-degree burglary is a class B felony.
AS 11.46.300(a)(1).
AS 11.46.300(b).
In the indictment, the State charged that Smith entered Keppler's dwelling with the intent to commit an assault upon her. He argues that the evidence at trial showed only that he assaulted Keppler in order to unlawfully enter her home.
Therefore, it is uncontested that Smith unlawfully entered Keppler's home and that Smith assaulted Keppler. It also appears uncontested that Keppler was inside her home, in the arctic entry, when Smith assaulted her. The question before this court is whether Judge Volland erred when he found that, at the time Smith entered Keppler's residence, Smith did so with the intent to assault Keppler.
In his findings, Judge Volland recognized that to convict Smith of burglary he had to find that Smith intended to assault Keppler at the time he made the unlawful entry into her home. In making this determination, Judge Volland reviewed Keppler's testimony and listened to the 911 call which she made immediately after the assault. In particular, Judge Volland relied on Keppler's description of the assault. He emphasized the fact that Smith stared at her and grabbed her with what she perceived as an obvious attempt to hurt her. Judge Volland also considered Smith's conduct during the day prior to the assault and the fact that he made a second visit to Keppler's house. He concluded that Smith's conduct was purposeful and supported the inference that he intended to assault Keppler. He also considered Smith's action in attempting to coax Keppler back into the house after she was able to escape his grasp as evidence that, when he entered the house, Smith's intent was to assault Keppler.
The record supports the inference that, before Smith approached Keppler's residence the second time, he was in an unstable and assaultive state of mind. He then entered Keppler's residence and assaulted her. After she escaped his grasp, he attempted to get her to return to the residence. He then engaged in a two-hour stand-off with the police. During this period of time, Smith killed Keppler's dog. Judge Volland could find that these actions supported the inference that, when Smith entered Keppler's residence, he did so with the intent to assault Keppler.
The conviction is AFFIRMED.
I write separately to clarify Smith's argument on appeal, and to explain why I reject that argument.
As described in the majority opinion, Smith forced his way through the outer door of Keppler's house and then grabbed her wrist, apparently intending to push her back into the residence with him. Keppler had the presence of mind to perform a martial arts maneuver (stepping to the side to break Smith's grip) so that she could escape past Smith through the outer door. Smith attempted to entice Keppler to re-enter the house, but she refused. Smith remained in the house for the next two hours; during this time, he viciously attacked and killed Keppler's dog.
The question presented in this appeal is whether this evidence, and the reasonable inferences to be drawn from it, establish the offense of first-degree burglary as defined in AS 11.46.300(a)(1): unlawful entry of a dwelling with the intent to commit a crime in the dwelling.
Smith concedes that he unlawfully entered Keppler's dwelling and that he assaulted Keppler in the process of making this entry. However, Smith argues that, as a matter of law, a trespasser who uses force to enter a building does not commit burglary if the trespasser's assaultive conduct is limited to an attack on the homeowner or other occupant for the sole purpose of completing the unlawful entry. Smith argues that such conduct is a burglary only if the trespasser intends to commit some further assault (or some other crime) after the trespasser has overcome the opposing efforts of the homeowner or other occupant and has completed the unlawful entry of the building.
In other words, Smith contends that a person who gains entry to a home by assaulting and subduing the homeowner (inside the house) nevertheless commits no burglary if the person's sole remaining intention is to watch television, or to take a nap, or to engage in some other non-criminal behavior.
Smith fails to offer any relevant legal authority to support his proposed construction of the law of burglary, and the burglary statute is seemingly at odds with his position.
Under AS 11.46.310(a), a person commits burglary if they enter or remain unlawfully in a building with the intent to commit a crime in the building. But as explained in AS 11.81.900(a)(1), when a criminal statute requires proof that a defendant acted with a particular intent, "that [specified] intent need not be the [defendant's] only objective".
Thus, a defendant who assaults and subdues the night watchman at a museum so that the defendant can view the art collection in peace would be guilty of burglary. Even though the defendant's ultimate goal might have been to view the art, the defendant had an accompanying intent to assault the person who would have hampered the attainment of this goal. The defendant's unlawful entry into the museum with this assaultive intention constitutes burglary.
The same is true in Smith's case. Even if Smith's ultimate goal had merely been to spend time relaxing in Keppler's living room, his accompanying intent to assault Keppler so that he could gain control of the house was sufficient to satisfy the burglary statute's requirement of an intent to commit a crime inside the building.
Moreover, as Judge Volland pointed out when he rendered his verdict, and as the majority opinion also points out, there was plenty of evidence that Smith entered Keppler's home with the intention of continuing his assault on Keppler if he had managed to keep her inside the house. In other words, even under Smith's interpretation of the burglary statute, the evidence presented at Smith's trial was sufficient to support his conviction.
For these reasons, I agree with my colleagues that the superior court's judgement should be affirmed.