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Tate v. State

Alabama Court of Criminal Appeals

October 25, 2019

Marcus Terrell Tate
v.
State of Alabama

          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 ...

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