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06/05/95 PENROSE v. STATE

June 05, 1995

PENROSE
v.
STATE



Before Bridges, C.j., Coleman, And Diaz, JJ.

The opinion of the court was delivered by: Coleman, J., For The Court

ALLEN CALDWELL PENROSE, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. BARRY W. FORD

COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT

BY: SCOTT STUART

DISTRICT ATTORNEY: JOHN R. YOUNG

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: CONVICTED OF BURGLARY: SENTENCED TO SERVE A TERM OF 7 YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; SENTENCE SHALL NOT BE REDUCED OR SUSPENDED NOR ELIGIBLE FOR PAROLE OR PROBATION

DISPOSITION AFFIRMED - 6/23/98

A grand jury in Lee County indicted the appellant, Allen Caldwell Penrose, for the crime of burglary of a building owned by Tupelo Manufacturing Company, Inc., a corporation (TMC), "with the felonious and burglarous intent to take, steal and carry away the goods, chattels and personal property of the said [TMC], a corporation, in said building being kept for use, sale or storage." The indictment further charged that Penrose was an habitual offender as defined by Section 99-19-81 of the Mississippi Code of 1972. A jury in the Circuit Court of Lee County returned a verdict of "Guilty as charged" against Penrose on this indictment, pursuant to which the trial court sentenced him "to serve a term of seven (7) years in a facility to be designated by the Mississippi Department of Corrections." The trial court further ordered that Penrose's sentence should "not be reduced or suspended nor shall [he] be eligible for parole or probation" under Section 99-19-81 of the Mississippi Code of 1972.

Penrose's appeal contains several issues, but we review and resolve only those four issues on which Penrose submits argument supported by authority. The theme of all four issues is that the State failed to offer evidence that Penrose entered TMC's building "with the felonious and burglarous intent to... steal." We affirm the trial court's judgment and sentence.

I. FACTS

Shortly after 6:30 p.m. on Thursday, December 29, 1994, the telephone rang in the home of Michael Stroup, the general manager of TMC. When Stroup answered it, he heard the distinctive tone which he knew the burglar alarm system in TMC's plant was generating in response to the opening of an interior door in the plant. Stroup immediately called 911 to report the apparent burglary and left for the plant. The 911 dispatcher called the Tupelo Police Department to report that an apparent burglary was in process at the TMC plant. Patrolman Terry L. Carlton responded to the police department dispatcher's radio broadcast that a burglary was in progress at the TMC plant by going to the plant. Carlton, the first police officer on the scene, arrived at the plant at 6:44 p.m., just ahead of Stroup, TMC's general manager.

Officer Carlton entered the building through the door to the main entrance after Stroup unlocked it. Stroup remained at the entrance while Officer Carlton walked down the darkened hall toward the door to the employees' break room. The only light in the hall came from beneath the closed break room door. When Officer Carlton stopped at the closed door preparatory to opening it to enter the break room, he heard a noise behind him. He turned toward the darkened work area, turned on his flashlight, lifted it with his left arm, and pointed it into the darkness of the work area. He simultaneously withdrew his pistol from its holster at his belt. The beam of light from the flashlight illuminated Penrose, who was semi-squatting beside a wood-turning lathe in the midst of some dollies which were loaded with wood approximately fifty feet from Officer Carlton.

Officer Carlton, who candidly confessed his understandable fear at his confrontation with the intruder, yelled to Penrose to put up his hands, stand up, and walk toward him. Officer Carlton kept the beam of light focused on Penrose as he approached him. When Penrose got close to him, Officer Carlton instructed him at gunpoint to get down on the floor and spread his arms and legs. Again, Penrose complied, and Carlton placed his foot on Penrose's back. Carlton yelled into his radio, "I've got a suspect.... There's someone here. Send me backup now." Reserve Officer Phillip Aguirre, who had been waiting outside at the rear of the building, ran around to the front in response to Officer Carlton's call for backup and entered the building. Other officers quickly arrived in response to Carlton's call for back-up assistance.

After Officer Carlton and his backup officers had subdued Penrose, they summoned Stroup, who had turned on some lights in the work area, to determine if Stroup recognized Penrose. Because Stroup had hired Penrose the previous September, Stroup readily recognized him. Although the plant remained closed between Christmas and New Year's Day, the business office had been open earlier that morning, Thursday, December 29, so that TMC's employees could receive their paychecks for the period before Christmas. Stroup remembered that he had handed Penrose his paycheck that very morning.

Officer Carlton logged over his radio with the dispatcher that he had given Penrose the Miranda warnings at 6:48 p.m. With Penrose handcuffed, Carlton placed him in the back of his police cruiser and drove him to the Tupelo Police Department Headquarters, where Penrose was booked and incarcerated. After Officer Carlton left with Penrose in tow, Stroup entered the break room to inspect the vending machines located there. Because of earlier burglaries of TMC's building, during which money had been stolen from the vending machines in the break room, an operating video camera had been concealed inside a pasteboard box and placed in a corner of the break room to focus on the vending machines. The camera was connected to a recording device located in an adjoining office by cables which ran through the wall between the break room and the office. Stroup noticed that the box containing the video camera had been turned so that the lens of the camera no longer focused on the vending machines. A subsequent playing of the tape revealed an individual dressed in an orange Florida Gators toboggan who was crossing from left to right in front of the camera, after which the picture moved about, narrowed, and ultimately disappeared.

Detective Timothy L. K. Sanders arrived at the TMC plant at approximately 6:50 p.m. In the course of his investigation, he photographed two windows located in two separate offices in the front of the building which had been smashed open. Inside the work area, Detective Sanders found an orange Florida Gators toboggan with eye holes cut out, a pair of purple, wool-type gloves, and a wood chisel lying on the floor. These three items were lying on the work-area floor about thirty-five feet, or less, from the entrance into the work area amid some dollies loaded with wood. Detective Sanders left the TMC plant at 7:01 p.m. to respond to another burglar alarm activation at Milam School in Tupelo.

Detective Sanders returned to the Tupelo Police Department headquarters later that evening. There he interviewed Penrose, who gave him a statement about the incident at the TMC plant after Sanders again had advised him of his right not to incriminate himself. We reserve further Discussion of the statement and the circumstances which surrounded Penrose's giving it for our review and resolution of Penrose's issue in which he argues that the trial court erred when it denied his motion to suppress the statement.

II. TRIAL

Three days before Penrose's trial began, the trial Judge conducted a hearing on Penrose's motion to suppress the statement which he had given Detective Sanders. The State called Officer Carlton, Detective Sanders, and Michael Stroup as its witnesses on the motion, but neither Penrose nor any other witness testified on his behalf at the hearing. As we noted, the trial Judge denied Penrose's motion to suppress his statement.

During Penrose's trial, the State again called Officer Carlton, Detective Sanders, and Michael Stroup as its three witnesses, and Penrose testified in his behalf. Our recitation of the facts is a summary of the testimony of the State's three witnesses because the jury's verdict that Penrose was guilty of burglary is consistent with those facts. A summary of Penrose's testimony is as follows: Penrose was living with his brother in an apartment not far from TMC's plant. At about 10:00 a.m. Penrose walked from his brother's apartment to the plant to get his paycheck. After Stroup personally gave Penrose his check, Penrose walked to a nearby bank, where he cashed his paycheck, and then he walked to an adjacent liquor store where he purchased two pints of peppermint gin. Penrose walked that day because his car recently had been repossessed.

At about noon on that day, he returned and entered the plant through the employees' entrance -- the door was unlocked -- and walked unnoticed to the "back of the work area" in the plant. There, Penrose began to drink from one of his two pints of peppermint gin. After he finished the first pint, he threw it into a container for scrap wood and began to drink from the second pint. He "passed out" after a few sips from the second pint. When Penrose regained consciousness, the work area was dark. Aware that he was in need of the facility, he was walking toward the bathroom located next to the break room when he saw the beam of light from Officer Carlton's flashlight. Penrose obeyed the officer's command to approach him and to lie on the floor. Once he was on the floor, Officer Carlton placed his foot on Penrose's back, as the officer testified he had done.

Penrose testified that he was wearing a cap when he entered the building, and he denied that he knew anything about the orange University of Florida toboggan, the purple gloves, and chisel which Detective Sanders had found in the area in which Officer Carlton had first seen Penrose, semi-squatting amid three wood dollies. He explained that he entered the plant to consume his peppermint gin because his brother, in whose apartment he was then living, did not like for him to drink where he lived. Penrose told the jury that he proposed to remain in the plant for the entire weekend until it opened for work on Tuesday. He intended to satisfy his hunger by purchasing sandwiches, drinks, and miscellaneous items from the vending machines in the break room with the rest of his cash which remained from his cashing his paycheck.

We have noted that Penrose did not testify during the hearing on his motion to suppress the statement which he had given to Detective Sanders. However, he testified during the trial about the circumstances in which he gave the statement to the detective. We reserve further review of that testimony for our resolution of Penrose's third issue. We have noted the result of the trial and its consequences for Penrose.

III. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES

We recite Penrose's issues verbatim from the statement of issues in his appellate brief:

1. Whether there existed sufficient evidence to convict appellant on the charge of burglary of a building other than a dwelling.

2. The trial court erred by not giving the requested "circumstantial evidence" instruction and, as a result, Penrose was greatly prejudiced and the court failed to give an adequate instruction so that the jury might make a conscious, rational, and knowledgeable decision under the bounds of our established law.

3. The prosecution improperly sought conviction of Penrose where there was no evidence that Penrose had the intent to steal therein, one of the ...


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