from Etowah Circuit Court (CC-16-1104; CC-16-1105;
WINDOM, PRESIDING JUDGE
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 motor
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.
Breckenridge v. State, 628 So.2d 1012, 1018
Pack v. State, supra, the appellant was
convicted of breaking and entering a vehicle pursuant to
§ 13A-8-11(b), Ala. Code 1975. The State presented
evidence indicating that the appellant had used a tire tool
in an attempt to pry open a door of a vehicle.
"[The] car window had been chipped and scratched but not
broken, chrome stripping on the side of the vehicle had been
damaged, and the door was bent where it had been pried by the
tire tool. The doors were still locked, and apparently no
entry had been made into the interior of the vehicle, the
trunk, or the engine compartment."
Pack, 461 So.2d at 912. The appellant argued on
appeal that the State had failed to prove a prima facie case
of unlawful breaking and entering a vehicle because, he said,
the evidence failed to show that there was an entering of the
automobile as required by § 13A-8-11(b), Ala. Code 1975.
In addressing his claim, this Court stated:
13A-8-11 reads, in pertinent part, as follows:
"'(b) A person commits the crime of unlawful
breaking and entering a vehicle, if without the consent of
the owner, he breaks into and enters a vehicle or any part of
the vehicle with the intent to commit any felony or theft.
For purposes ...