Appeal
from Lee Circuit Court (CC-18-84)
COLE,
JUDGE.
Marcus
Terrell Tate appeals his convictions for first-degree
burglary, a violation of § 13A-7-5, Ala. Code 1975, and
fourth-degree theft of property, a violation of §
13A-8-5, Ala. Code 1975, and his resulting concurrent
sentences of 14 years and 1 year, respectively.
Facts
and Procedural History
The
evidence at trial showed that Tate broke into an apartment
occupied by Theresa Monk and her family and stole a
television. (R. 125-26.) Before Monk began living in the
apartment, Monk's friend, Kevia Staples, had lived in
that apartment. (R. 128.) Tate had previously been
Staples's boyfriend, and he had often stayed at the
apartment overnight, but apparently had never lived there.
(R. 191.) When Staples moved out of the apartment, she
subleased the apartment to Monk's boyfriend. (R. 154.)
Staples also told Monk that she could have the furniture and
other items remaining in the apartment after Staples moved
out. (R. 130.)
On
December 3, 2016, Monk, her teenaged daughter, and others
were entering the apartment when Tate entered the apartment
without an invitation and went into the bedroom. (R. 127.)
Tate removed a television from the bedroom dresser and left
the apartment with the television. (R. 131-33.) After Tate
left, Monk locked the front door. Immediately thereafter,
Tate kicked the door open, came inside, and removed another
television from the living room, together with a game system
and cords. (R. 133-36.)
One of
the persons with Monk told Tate that the television was not
his. Tate lifted his shirt to show them his pistol, and said
"it's mine now." (R. 135-36.) Tate left the
apartment with both televisions, and Monk telephoned the
police. Monk and her daughter identified Tate from a lineup
and identified Tate again at trial. (R. 128, 143, 175, 181,
231-32.)[1]
Staples
testified that she used to date Tate and that Tate had no
belongings at the apartment. (R. 191-92.) Staples also
testified that she never told Tate that he could take the
television in the bedroom. (R. 194.)
Tate
did not testify at trial, but the State presented evidence of
Tate's interview with police investigators several months
after the burglary. Tate's written statement read as
follows:
"My name is Marcus Terrell Tate. On December 3rd of
2016, I went over to my old apartment in Woodbend Apartments.
I was going to get my T.V.s and had been talking to my
ex-girlfriend, Kavia Ellington [Staples], about doing so.
When I got there, her friend, Theresa, was there and had been
living there. I walked in behind her and got two T.V.s. One
was mine and one was--and the other was one I had given to
Kavia. I did not bust in the door. It was damaged from a
prior incident where I kicked the door in two years prior. I
did have a pistol on me in my pocket and it was sticking out,
but I never pulled it out. Theresa just let--let me get my
stuff and everything was cool. The kids asked who I was and
Theresa said she knew me. I then left in my silver Grand
Marquis. This statement has been read by me and is true and
correct."
(R. 239-40.)
Standard of Review
"'In determining the sufficiency of the evidence to
sustain the conviction, this Court must accept as true the
evidence introduced by the State, accord the State all
legitimate inferences therefrom, and consider the evidence in
the light most favorable to the prosecution.'
Faircloth v. State, 471 So.2d 485, 489 (Ala. Cr.
App. 1984), affirmed, Ex parte Faircloth, [471]
So.2d 493 (Ala. 1985)."
White v. State, 546 So.2d 1014, 1017
(Ala.Crim.App.1989).
The
standard of review for pure questions of law in criminal
cases is de novo. Ex parte Key, 890 So.2d 1056, 1059
(Ala. 2003).
Discussion
On
appeal, Tate claims (1) that the evidence was insufficient to
support the verdict, (2) that there was a fatal variance
between the indictment and the evidence, and (3) that it
violated principles of double jeopardy to convict him of both
burglary and theft based on the same incident.
Sufficiency
of the Evidence and Variance Between Indictment and
Proof
Tate
argues (1) that the evidence was insufficient to support the
verdict because, he says, the State did not prove that Monk
owned or rented the apartment or that she owned the
television that was stolen and (2) that, as to both charges,
there was a material variance between the indictment and the
proof regarding ownership.
Section
13A-7-5, Ala. Code 1975, defines first-degree burglary as:
"(a) A person commits the crime of burglary in the first
degree if he or she knowingly and unlawfully enters or
remains unlawfully in a dwelling with intent to commit a
crime therein, and, if, in effecting entry or while in
dwelling or in immediate flight ...