Oken v. State

McAULIFFE, Judge,

concurring in part and dissenting in part.

I concur with the Court’s judgment affirming Oken’s convictions for first degree murder, first degree sexual offense, and the use of a handgun in the commission of a crime of violence. I dissent, however, from the reversal of Oken’s conviction for burglary. The Court holds that there *681 was insufficient evidence to support the burglary conviction, finding that the record in this case is “completely devoid of any evidence” showing a constructive breaking of Dawn Garvin’s apartment. I disagree.

The Court correctly states that in reviewing a jury’s verdict for sufficiency of evidence, our task is to decide “whether after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Wiggins v. State, 324 Md. 551, 567 , 597 A.2d 1359 (1991), cert. denied, — U.S. -, 112 S.Ct. 1765 , 118 L.Ed.2d 427 (1992). I find that this standard is met, indeed surpassed, by the State’s evidence showing that Oken effected a constructive breaking of Dawn Garvin’s home on the night he murdered her.

A constructive breaking can occur when an entry is gained by artifice, fraud, conspiracy, or threats. Brooks v. State, 277 Md. 155, 159-60 , 353 A.2d 217 (1976); see also Perkins on Criminal Law, 194-95 (2d ed. 1969). As the Court acknowledges, the “constructive breaking” element of Oken’s burglary conviction, as with any element of an offense, may stand on circumstantial evidence alone. Wilson v. State, 319 Md. 530, 536 , 573 A.2d 831 (1990); Veney v. State, 251 Md. 182, 201 , 246 A.2d 568 (1968), cert. denied, 394 U.S. 948 , 89 S.Ct. 1284 , 22 L.Ed.2d 482 (1969). Indeed, in a case such as this where the defendant is accused not only of committing burglary but also of murdering his victim, circumstantial evidence of a constructive breaking may be all that exists.

The State produced evidence of four incidents close in time and location to the murder in this case. The first three incidents involved attempts by Oken to gain entry to residences by claiming that he needed to use the telephone, and the fourth involved Oken’s attempt to stop a woman driving alone by posing as a police officer.

First, Mark Glidden testified for the State that at 9:30 p.m. on 1 November 1987, the same evening Garvin was *682 murdered, a man knocked on his apartment door and, as Glidden began to open the door, immediately started to come in. The man, later identified by Glidden as Oken, said that he had had a fight with his wife, and she had locked him out. Oken used the telephone and walked out, heading toward Garvin’s apartment building across the street. At trial, Oken’s wife testified that she was not in town on the date of this incident.

Second, Bonnie Winkleman testified that on the evening of 27 October 1987 a man knocked on the door of her apartment, located about 1000 feet from Garvin’s apartment, claiming he needed to use the telephone. Winkleman told the man she would let him in as soon as she finished changing her clothes. The man, later identified as Oken, began cursing and screaming and continued to knock on her door. Winkleman became frightened and telephoned a friend, Robert Strange, who came to her apartment. Strange told Oken that he would not be allowed into Winkleman’s apartment; Oken then left.

Third, Gregory Gunnell testified that at 2:30 a.m. on 20 October 1987, a man knocked on the door of his apartment, located approximately one-half mile from Garvin’s apartment, and told him that he was a doctor who needed to use the telephone. The man, later identified by Gunnell as Oken, also said he lived in the same building, which Gunnell doubted since he knew all his neighbors. Gunnell did, however, allow Oken to use the telephone and testified that the conversation had something to do with a prescription.

Fourth, Burnita Wilder testified that while driving at approximately 10:00 p.m. on an evening in late October, a man in another vehicle pulled up beside her car and tried to get her to pull over by flashing his lights, showing a police patch, and yelling. When Wilder pulled over in front of a shopping center, the man, later identified by Wilder as Oken, said, “Don’t you know when a policeman tells you to pull over, you pull over?” Oken then told Wilder to drive over to a part of the shopping center parking lot that was dark. Wilder instead drove to a well-lighted area and asked *683 Oken to show a police badge. When he showed her the cloth police patch, she pointed out that it was not a badge, to which he responded, “Oh, shit, I forgot my badge.” Wilder quickly left her car and went into a convenience store. Oken drove away.

This evidence demonstrated to the jury that on at least four recent occasions Oken lied and sought access to individuals by identifying himself as a police officer or a doctor, or by claiming to have just fought with his wife when she was in fact out of town. Furthermore, the State produced a shopping list written in Oken’s own hand listing gauze pads, chloroform, gag, adhesive tape and other items suggesting that Oken intended to surprise and forcibly subdue his intended victim. Moreover, the jury could consider Oken’s actual conduct toward Dawn Garvin, and infer from that his criminal intent as he approached her apartment. The clear picture presented is of Oken, bent on criminal assault, with very recent practice and experience in, and proclivity toward, gaining access by trick or fraud. Oken neither contests these facts nor offers alternative explanations of his prior ruses.

No evidence suggested that Oken somehow knew Garvin and legitimately gained access to her home. While such an explanation could be imagined, our task is not to explore whether there is any remote possibility that the jury was wrong.

The evidence in this case, when considered in the light most favorable to the prosecution, supported the finding of the jury beyond a reasonable doubt that during the prior incidents Oken searched for possible victims, and used a similar kind of ruse to gain entry to Dawn Garvin’s apartment, thus effecting a constructive breaking into her home. I would therefore affirm Oken’s burglary conviction.

MURPHY, C.J., and RODOWSKY, J., join in this opinion.