from Etowah Circuit Court (CC-16-1104; CC-16-1105;
Phillips, Gadsden, for appellant.
Marshall, atty. gen., and Beth Slate Poe, asst. atty. gen.,
Baise was convicted of three counts of breaking and entering
of a motor vehicle, violations of § 13A-8-11(b), Ala.
Code 1975, one count of first-degree criminal trespass, a
violation of § 13A-7-2, Ala. Code 1975; and one count of
second-degree criminal mischief, a violation of §
13A-7-22, Ala. Code 1975. The circuit court departed from the
sentencing guidelines based on the jury's finding the
existence of an aggravating factor — that Baise was
serving a community-corrections sentence at the time the
offenses were committed — sentencing Baise as a
habitual felony offender to 20 years in prison for each of
his convictions for breaking and entering of a motor vehicle,
to 1 year in prison for his criminal-mischief conviction, and
to 3 months in jail for his criminal-trespass conviction. All
sentences were ordered to run concurrently. On appeal, he
challenges two of his convictions for breaking and entering a
3:30 a.m. on September 26, 2016, Timothy Kirby arrived for
work at Wood's Transportation, a charter-bus company.
Kirby went into the shop area and then walked out to a
fenced-in lot. There he noticed a hood up on one of the buses
parked in the lot. Kirby walked toward the bus and saw a man
under the bus in between the tire, the frame, and the fender.
Kirby telephoned the Gadsden Police Department. Before
officers arrived, the man came out from under the bus. Kirby
recognized the man as Baise. Kirby asked Baise what he was
doing and Baise said, "Kirb, I'm hurting." (R.
177.) Baise fled when officers arrived. The bus's top and
bottom radiator hoses, transmission lines, and intercooler
charging tube had all been cut. Kirby testified that the
damage to the bus totaled approximately $2,500.
early morning hours on March 5, 2017, Officer Dusty Ford of
the Gadsden Police Department responded to a
burglary-in-progress call at S & M Motors, a used-vehicle
dealer. When Officer Ford arrived at S & M Motors, he
"saw a male figure pop up from behind some vehicles and
take off running." (R. 249.) Officer Ford chased the
man, who was eventually apprehended and identified as Baise.
A reciprocating saw was found beside a 2005 Honda Accord
vehicle that Baise had been near before he ran away. There
were cut marks from the saw blade on the exhaust pipe leading
to the catalytic converter underneath the
one month later, Officer Ford received a tip from another
officer regarding suspicious activity at Cowboys Auto Service
Center. When he arrived at Cowboys, Officer Ford heard a
grinding noise and saw a man "pop up" from
underneath a Honda CRV sport-utility vehicle. (R. 269, 274.)
The man ran, and when Officer Ford caught him, Officer Ford
recognized the man as Baise from the prior incident at S
& M Motors. By the CRV, officers found a reciprocating
saw, two backpacks, batteries, a charger, sockets, and a
wrench. (R. 263-65.) Officer Ford saw damage to the CRV's
catalytic converter. (R. 275.)
trial, Baise denied committing the offenses at Wood's
Transportation; however, he did admit that he had attempted
to steal parts from the Accord at S & M Motors and the
CRV at Cowboys. Baise even stated that he had to use a car
jack to lift the Accord to access the area containing the
close of the State's evidence, Baise, relying on this
Court's decision in Pack v. State, 461 So.2d 910
(Ala. Crim. App. 1984),
moved for a judgment of acquittal with respect to the charges
for breaking and entering the Accord and the CRV.
Specifically, Baise argued that, as a matter of law, he did
not "enter" any part of these vehicles and,
consequently, that the State failed to prove breaking and
entering of a motor vehicle under § 13A-8-11(b), Ala.
Code 1975. The circuit court denied the motion.
reasserts the same argument on appeal. Baise contends that
"there is no evidence or testimony that he ever tried to
enter either vehicle; be it the passenger compartment, the
engine compartment, under the hood, or the trunk."
(Baise's brief, at 22.) Baise claims that "[t]hese
are the only areas whose unlawful entry would constitute a
burglary." (Baise's brief, at 22.) The State, in
response, argues that a person who goes underneath a vehicle
and uses a saw in an attempt to remove a part of the vehicle
has entered a part of the vehicle under §
13A-8-11(b), Ala. Code 1975.
the sufficiency of the evidence, this Court has held:
"In deciding whether there is sufficient evidence to
support the verdict of the jury and the judgment of the
trial court, the evidence must be reviewed in the light
most favorable to the prosecution. Cumbo v. State,
368 So.2d 871 (Ala. Cr. App. 1978), cert. denied, 368 So.2d
877 (Ala. 1979). Conflicting evidence presents a jury
question not subject to review on appeal, provided the
state's evidence establishes a prima facie case.
Gunn v. State, 387 So.2d 280 (Ala. Cr. App.),
cert. denied, 387 So.2d 283 (Ala. 1980). The trial
court's denial of a motion for a judgment of acquittal
must be reviewed by determining whether there existed legal
evidence before the jury, at the time the motion was made,
from which the jury by fair inference could have found the
appellant guilty. Thomas v. State, 363 So.2d 1020
(Ala. Cr. App. 1978). In applying this standard, the
appellate court will determine only if legal evidence was
presented from which the jury could have found the
defendant guilty beyond a reasonable doubt. Willis v.
State, 447 So.2d 199 (Ala. Cr. App. 1983); Thomas
v. State, When the evidence raises questions of fact
for the jury and such evidence, if believed, is sufficient
to sustain a conviction, the denial of a motion for a
judgment of acquittal by the trial court does not
constitute error. Young v. State, 283 Ala. 676,
220 So.2d 843 (1969); Willis v. State."
Breckenridge v. State, 628 So.2d 1012, 1018