
    Alvin Lee WESTBROOK v. STATE.
    CR-95-1505.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1996.
    Glenn Davidson, Mobile, for Appellant.
    Jeff Sessions, Atty. Gen., and Thomas Lev-erette, Asst. Atty. Gen., for Appellee.
   TAYLOR, Presiding Judge.

The appellant, Alvin Lee Westbrook, was convicted of attempted burglary in the third degree, a violation of §§ 13A-4r-2, 13A-7-7, Code of Alabama 1975, and possession of burglar’s tools, a violation of § 13A-7-8, Code of Alabama 1975. The appellant was sentenced to 12 months’ imprisonment for the conviction for attempted burglary, and to 10 years in the penitentiary, upon application of the Habitual Felony Offender Act, for the conviction for possession of burglar’s tools.

The state’s evidence tended to show that at approximately 11:00 p.m. on August 26,1995, the appellant was seen on the roof of Joe’s Pawnshop in Mobile by Ernest Logan, an employee of a private security agency, who was working at the AmSouth bank building across the street. Logan testified that he saw the appellant “beating and prying on stuff’ by the air conditioning unit and “beating on the air conditioning.” He observed the appellant throw some rolled up copper flashing from the roof into the alley. Logan advised another security guard who notified the police. The police arrived and arrested the appellant.

Detective Kristen Dorsey and Officer Eric Spencer Jackson, employees of the Mobile Police Department, were the officers who responded to the call. Dorsey testified that when he reached the roof, he noticed a crowbar and gloves within five feet of the appellant. Marvin Olensky, the owner of Joe’s Pawnshop, testified that he did not know the appellant and he had not given him permission to be on the roof of his business. Olen-sky further testified that after this incident, the roof leaked “very badly” in the location where the appellant had been arrested, and had to be repaired.

The appellant contends that the trial court erred in denying his motion for a judgment of acquittal because, he says, the state failed to prove a prima facie case of attempted burglary in the third degree. Specifically, he contends that the state’s evidence was insufficient because, he says, the state failed to prove that there was an attempt to enter a budding.

In Johnston v. State, 615 So.2d 1257 (Ala.Cr.App.1992), this court examined a situation similar to the one presented in the instant case. The defendant was convicted of attempted burglary without physically entering or remaining unlawfully in the building. The defendant broke open the doors of a building by pushing them with the bumper of his vehicle, but was apprehended before he could enter the building. This court stated in Johnston:

“The appellant contends that the state’s evidence was insufficient because, he says, the state failed to prove that the appellant entered the building. The law in Alabama regarding this issue has been summarized as follows:
“ ‘Prior to the effective date of the Alabama Criminal Code (Code of Alabama 1975, Title 13A) both a breaking and an entry were essential elements of the crime of burglary, but a breaking has been eliminated as an essential element by §§ 13A-7-5, 13A-7-6 and 13A-7-7. To constitute an entry, there must be a penetration of the space within the building by some part of the body of the defendant, or by an instrument inserted for the purpose of perpetrating a felony in the building. In Walker v. State, 63 Ala. 49, 51-51 (1879), it was held:
“ ‘ “When one instrument is employed to break, and is without capacity to aid otherwise than by opening a way of entry, and another instrument must be used, or the instrument used in the breaking must be used in ... some other way or manner to consummate the criminal intent, the intrusion of the instrument is not, of itself, an entry.
“ ‘ “When entry is made by means of an instrument, it must be used for the purpose of effecting the felony, and not merely gaining entrance for the defendant. Accordingly, the act of prying open a door with an iron bar does not constitute an entry, as it is not used for the purpose of committing a felony therein, but merely of breaking.”
“‘To the same effect is Robinson v. State, 45 Ala.App. 74, 78, 224 So.2d 675 (1969), where it is stated:
““‘The evidence that the door ‘was pried open and the lock was busted with some type of instrument’ did not show an entry into the building.’ ”
“Perry v. State, 407 So.2d 183, 185 (Ala.Cr.App.1981). See Pack v. State, 461 So.2d 910 (Ala.Cr.App.1984); see also People v. Tragni, 113 Misc.2d 852, 449 N.Y.S.2d 923 (1982). In the instant case, the automobile was used for the purpose of breaking, but the appellant was apprehended before he could enter the building; therefore, the state failed to prove a prima facie case of burglary in the third degree. The state did, however, prove a prima facie case of attempted burglary in the third degree.
“‘A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.’ § 13A-4-2, Code of Alabama 1975. Applying the law stated above to the facts of this case, the state’s evidence did tend to prove that the appellant, with the intent to commit a burglary, acted overtly towards the commission of a burglary.”

615 So.2d at 1258. (Emphasis added.)

This court has repeatedly examined the standard of review in determining the sufficiency of the evidence and has stated as follows:

“ ‘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), aff'd, 471 So.2d 493 (Ala.1985).”

McIntyre v. State, 571 So.2d 364, 365 (Ala.Cr.App.1990).

Certainly, from the facts presented in this ease, we can conclude that the appellant committed an overt act in the furtherance of his goal of breaking and entering the pawnshop. The appellant was on the roof of the pawnshop without permission, surrounded by tools typically used in a burglary. He was also seen beating on the roof with a crowbar and throwing metal into the alleyway. Moreover, the appellant caused physical damage to the roof that subsequently had to be repaired by the owner. There was sufficient evidence to support the trial court’s denial of his motion for a judgment of acquittal.

For the foregoing reasons, the judgment is due to be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur, except PATTERSON, J., who dissents with opinion.

PATTERSON, Judge

(dissenting).

Essential elements of the offense of attempted third degree burglary are the intent to commit burglary and an overt act toward the crime. Any evidence of an overt act toward the commission of a burglary would evidence intent. My review of the state’s evidence fails to establish any evidence that could reasonably be interpreted as intent to break into the building.

The state relies on Johnston v. State, 615 So.2d 1257, 1258 (Ala.Cr.App.1992), in which the defendant was convicted of attempted burglary without entering or remaining in the building. In that case, the defendant broke open the doors of a building by pushing them with the bumper of a vehicle, but was apprehended before he could enter the building. The state relied upon the evidence of the defendant’s breaking in of the doors as evidence of an attempted burglary.

The instant case, however, is distinguishable from Johnston: there was no evidence presented in this case that established the intent by an overt act of breaking into the budding. The evidence that the appellant was seen beating on a roof air conditioner, that he removed and rolled up flashing or rain guttering, and that he had in his possession a pry bar and gloves does not present sufficient evidence to support an inference that there was any attempt to break into the building. In fact, the appellant appeals only his conviction for attempted burglary — not his conviction for possession of burglar’s tools. There was no evidence of attempted forced entry. The appellant did not create or attempt to create any opening in the building. There was no evidence that entry could have been gained if the air conditioner was removed. There was no evidence that the appellant possessed any rope, ladder, or other equipment to lower himself from the roof into the building. In fact, the evidence that the appellant threw rolled up copper flashing off the roof into the alley is more consistent with theft than with attempted burglary. While the appellant’s actions might establish vandalism or theft of property, I do not believe there is any credible way they can be construed as an attempt to gain entry into the building.

Without the element of intent, the state failed to make a prima facie ease of attempted burglary. For this reason, I respectfully dissent.  