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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2013
Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
Curtis Maurice Sanders
State of Alabama)
(Jefferson Circuit Court, CC-10-1961;
Court of Criminal Appeals, CR-10-1091)
The State of Alabama petitioned this Court for a writ of
certiorari to review the Court of Criminal Appeals' decision
reversing Curtis Maurice Sanders's conviction for third-degree
burglary, see § 13A-7-7(a), Ala. Code 1975, that was entered
pursuant to a guilty plea. Sanders v. State, [Ms. CR-10-1091,
December 14, 2012] ___ So. 3d ___ (Ala. Crim. App. 2012).
granted certiorari review to consider, as an issue of first
impression, whether an unoccupied house that is scheduled for
demolition constitutes a "building" as that term is defined in
§ 13A-7-1(2), Ala. Code 1975, for purposes of § 13A-7-7(a),
Ala. Code 1975.
For the reasons set forth below, we reverse
Facts and Procedural History
On the morning of April 1, 2010, law-enforcement officers
found Sanders taking items from a house located at 8413 5th
Avenue North in Birmingham.
The Birmingham Airport Authority
("the Authority") had acquired the house as a part of a
federally funded noise-abatement program.
Under the terms of
purchase the house, demolish it, and then redevelop the land
on which it was located to buffer noise from the airport.
Sanders was indicted for third-degree burglary under §
13A-7-7(a), which provides:
"A person commits the crime of burglary in the third
degree if he knowingly enters or remains unlawfully
in a building with intent to commit a crime
Section 13A-7-1(2) defines a "building" as
"[a]ny structure which may be entered and utilized
by persons for business, public use, lodging or the
storage of goods, and such term includes any
vehicle, aircraft or watercraft used for the lodging
of persons or carrying on business therein, and such
term includes any railroad box car or other rail
equipment or trailer or tractor trailer or
combination thereof. Where a building consists of
two or more units separately occupied or secure,
each shall be deemed both a separate building and a
part of the main building."
Sanders filed a pretrial motion to dismiss the indictment,
arguing that, as a matter of law, the State could not prove a
key element of the offense because, he argued, the structure
he had entered was not a "building" as that term is defined in
The trial court conducted a hearing on the motion to
During that hearing, Lowrenzo Taylor, who had been
employed by the Authority for more than 20 years, testified
that, once the Authority acquired a property for demolition,
it would advertise for bids from contractors to remove any
hazardous material, such as asbestos, from the structure; to
demolish the structure; and to clear the land. The contractor
who submitted the winning bid would be cleared to demolish the
structure, usually within 90-120 days after its acquisition by
contractor was cleared to demolish a structure, the contractor
or his employees could take scrap materials from the structure
because the structure was "essentially ... theirs at that
He further testified that, after the property was
acquired by the Authority, it could no longer be used for "any
... normal purposes, like a residence."
Taylor testified that, on the date of the offense, the
structure in which Sanders was arrested was set for demolition
by Britt Demolition, a contractor. Finally, he testified that
he did not know whether anyone, including the demolition
agreement, Sanders entered a plea of guilty to third-degree
The trial court sentenced him, as a habitual
offender, to two years in prison, but suspended the sentence
and placed him on probation.
See § 13A-5-9(a)(1), Ala. Code
When he entered his guilty plea, Sanders reserved the
right to appeal the denial of his motion to dismiss the
indictment against him.
arguing that the State could not establish all the elements of
third-degree burglary because, he alleged, the house, which
was scheduled for demolition, was not a "building" as that
term is used in § 13A-7-7(a).
The Court of Criminal Appeals
agreed with Sanders, reasoning as follows:
"The State argues on appeal that 'there is no
evidence in the record to suggest that the house in
this case was abandoned.' (State's brief, p. 10.)
Thus, the State argues, there is no evidence
indicating that the structure was unsuitable to 'be
entered and utilized by persons for business, public
use, lodging or the storage of goods,' § 13A–7–1(2),
Ala. Code 1975. We disagree. The undisputed facts
indicate that (1) the structure could not have been
legally 'utilized by persons for business, public
use, lodging or the storage of goods' and (2) the
owner of the structure in fact did not intend to use
it for any of the purposes listed in the statute.
As noted, the Authority's only intention in
acquiring the structure was to demolish it, and,
under the terms of the federal program by which the
structure was acquired, the Authority was not
permitted to use the structure for any of the
purposes specifically listed in § 13A–7–1(2), Ala.
Code 1975. Thus, the structure here did not come
within the plain meaning of 'building' as the
legislature defined that term in § 13A–7–1(2), Ala.
"In addition, the Commentary to § 13A–7–1
supports our conclusion that the plain meaning of
'building' in § 13A–7–1, Ala. Code 1975, does not
include the structure in this case.2 That Commentary
states, in relevant part:
structures in different contexts.
definition includes a building in its
ordinary and usual sense -- any structure
which may be entered and used for business,
public use, lodging or the storage of
goods. It does not include a house that is
still in the early stages of construction
and which is not being lived in nor used
for storage purposes, or an abandoned
building awaiting demolition.'3
"Because the undisputed facts demonstrate that
the structure Sanders entered was not a 'building'
under § 13A–7–1(2), Ala. Code 1975, the circuit
court erred in denying Sanders's motion to dismiss
the indictment. Accordingly, we reverse the circuit
court's judgment and render a judgment in favor of
Sanders as to the conviction for third-degree
"2We cite the Commentary only to note that our
holding is consistent with it. Thus, the instant
case is distinguishable from Hiler v. State, 44 So.
3d 543 (Ala. 2009). In Hiler, the Alabama Supreme
Court reversed a decision of this Court that held
that the defendant's conduct was excepted from the
reach of the statute at issue there. Specifically,
this Court had relied on the Commentary to create an
exception to the statute at issue in Hiler.
Supreme Court reversed this Court's judgment
because, the Court held, this Court had construed
the Commentary to the statute rather than the
44 So. 3d at 548 ('Because the
Court of Criminal Appeals applied the plain language
of the Commentary to § 13A–11–11 rather than the
plain language of the statute itself in reaching its
decision, we conclude that the Court of Criminal
Appeals erred in reversing the trial court's
judgment and rendering a judgment in favor of Hiler
as to the conviction for falsely reporting an
"3We note that the legislature has provided
substantially the same definition of 'building' in
two other criminal statutory provisions:
justification and excuse), and § 13A–7–40(1), Ala.
Code 1975 (applicable to arson offenses). Like the
Commentary to § 13A–7–1(2), the Commentary to §
13A–3–20(1), Ala. Code 1975, includes the same
language stating that the definition does not
include 'an abandoned building awaiting demolition.'
The Commentary to § 13A–7–40(1) -- the definition of
'building' applicable to the article prohibiting
arson -- does not include the language regarding 'an
abandoned building awaiting demolition.'"
Sanders, ___ So. 3d at ___.
Standard of Review
"'"'This Court reviews pure questions of law in
criminal cases de novo.'"' Ex parte Brown, 11 So.
3d 933, 935 (Ala. 2008) (quoting Ex parte Morrow,
915 So. 2d 539, 541 (Ala. 2004), quoting in turn Ex
parte Key, 890 So. 2d 1056, 1059 (Ala. 2003))."
Hiler v. State, 44 So. 3d 543, 546 (Ala. 2009).
The State argues that the Court of Criminal Appeals erred
constitute a "building" as that term is defined in § 13A-71(2).
In reviewing this case, we are guided by the following
principles of statutory construction:
"'In determining the meaning of a statute, this
Court looks to the plain meaning of the words as
written by the legislature.' DeKalb County LP Gas
Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275 (Ala.
"'"Words used in a statute must be given
commonly understood meaning, and where
plain language is used a court is bound to
interpret that language to mean exactly
what it says. If the language of the
statute is unambiguous, then there is no
room for judicial construction and the
clearly expressed intent of the legislature
must be given effect."'
"Blue Cross and Blue Shield of Alabama, Inc. v.
Nielsen, 714 So. 2d 293, 296 (Ala. 1998) (quoting
IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.
2d 344, 346 (Ala. 1992))."
City of Prattville v. Corley, 892 So. 2d 845, 848 (Ala. 2003).
The State argues that the Court of Criminal Appeals
determined that the house was not a "building" because it was
scheduled to be demolished and because it was subject to
restricted use under the noise-abatement contract.
"The statute does not expressly or implicitly
exclude structures awaiting demolition or require
courts to examine the owner's intent and legal
obligations before determining whether it qualifies
as a building. The lower court's consideration of
either fact falls outside the natural, plain,
ordinary, and commonly understood meaning of the
words used in this statute.
"Likewise, the statute does not require that the
structure actually be used for one of the purposes
listed. Rather, it requires only that the structure
'may' be used for one of the listed purposes. In
this case, because the unoccupied house could have
been used by the demolition company for business
purposes or the storage of goods, the house fell
within the plain language of the statute.
Britt Demolition contracted to demolish the house,
the house became part and parcel of the demolition
company's business. ... The company retained the
right to remove any property from within the house
including the scrap metal Sanders stole."
(Petition, at pp. 3-4.)
The State also argues that, as in
Hiler v. State, 44 So. 3d 543 (Ala. 2009), which the Court of
Criminal Appeals relied upon and attempted to distinguish, the
Commentary to § 13A-7-1 cannot override the plain language of
We agree with the State.
The Court of Criminal Appeals acknowledged the following
language from Ex parte McCormick, 932 So. 2d 124, 132 (Ala.
"'In any case involving statutory construction,
our inquiry begins with the language of the statute,
and if the meaning of the statutory language is
plain, our analysis ends there.'"
___ So. 3d at ___.
However, in its analysis, the Court of
Criminal Appeals construed the definition of "building" in
light of the terms of the demolition contract and permissible
and intended uses for the house in this case rather than in
light of the ordinary possible uses for a house.
In so doing,
it went beyond the plain language used in § 13A-7-1(2) and
construed the statute in light of the facts of this case and
the Commentary to § 13A-7-1.
structure which may be entered and utilized by persons for
business, public use, lodging or the storage of goods...."
"structure" as "[a]ny construction, production, or piece of
work artificially built up or composed of parts purposefully
Obviously, a house is a "construction ...
built up or composed of parts purposefully joined together"
that may be "entered and utilized by persons for business,
public use, lodging or the storage of goods."
Thus, by its
plain language, § 13A-7-1(2) would include a house in the
definition of "building."
We note, as did the Court of Criminal Appeals, that the
"building" does not include "an abandoned building awaiting
However, in Hiler v. State, supra, this Court
stated the following regarding the Commentary to a statute
when the language of the statute is plain and unambiguous:
"In the present case, the essence of the State's
argument is that the Court of Criminal Appeals erred
by applying the plain language of the Commentary to
§ 13A–11–11, rather than the plain language of that
statute, in reversing the trial court's judgment as
to Hiler's conviction for falsely reporting an
incident. We agree.
"Simply put, the plain language of § 13A–11–11
is unambiguous; it provides no exception for persons
who falsely report an incident to public officials
activities. Although the Commentary to § 13A–11–11
purports to create such an exception, the language
of the Commentary does not override the plain
language of the statute. See Sheffield v. State,
708 So. 2d 899, 900 n.2 (Ala. Crim. App. 1997) ('The
commentary does not override the form and meaning of
the statutory language, when viewed in light of
established principles of statutory construction.'
(quoting Hawkins v. State, 549 So. 2d 552, 560 (Ala.
Crim. App. 1989) (Bowen, J., concurring), citing in
turn Sutherland Statutory Construction § 45.07));
see also Ex parte Edwards, 816 So. 2d 98, 102 n.3
(Ala. 2001) ('Our consideration of the commentary
... is tempered by § 1–1–14(b), Ala. Code 1975,
which states that "[a]ll historical citations and
notes set out in this Code are given for the purpose
of convenient reference, and do not constitute part
of the law."'); Coleman v. State, 565 So. 2d 685,
687 (Ala. Crim. App. 1990) ('"[A] commentary to a
statute, while of some persuasive value, is not
binding upon the courts."' (quoting Herndon v.
State, 563 So. 2d 1065, 1068 (Ala. 1990))).
"Furthermore, as noted by the State, had the
legislature intended to exclude from the purview of
§ 13A–11–11 instances in which a false report is
made to public officials who are engaged in police
or fire-control activities, it could have included
express language to that effect in the statute. The
legislature, however, did not do so, and this Court
may not read into the statute language the
legislature did not include. See City of Pinson v.
Utilities Bd. of Oneonta, 986 So. 2d 367, 373 (Ala.
2007) ('"It is not proper for a court to read into
the statute something which the legislature did not
include although it could have easily done so."'
(quoting Noonan v. East–West Beltline, Inc., 487 So.
2d 237, 239 (Ala. 1986))); Ware v. Timmons, 954 So.
2d 545, 556 (Ala. 2006) ('[W]e presume "that the
legislature does not intend to make any alteration
in the law beyond what it explicitly declares."'
(quoting Duncan v. Rudulph, 245 Ala. 175, 176, 16
So. 2d 313, 314 (1944)))."
44 So. 3d at 547-48.
unambiguous and does not include an exception for an abandoned
building awaiting demolition.
As in Hiler, although the
Commentary to § 13A-7-1 purports to create such an exception,
the language of the Commentary does not override the plain
language of the statute.
See Hiler, supra, and the cases
If the legislature had intended to exclude an
abandoned building awaiting demolition from the purview of the
statute, it could have included express language to that
effect in the statute.
However, it did not do so, and this
Court will not read such language into the statute.
Based on the plain language of § 13A-7-1(2), the house
"building" for purposes of §§ 13A-7-1(2) and 13A-7-7(a), Ala.
Therefore, the Court of Criminal Appeals erred
burglary and rendered a judgment in his favor.
we reverse the Court of Criminal Appeals' judgment and remand
this case for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan,
Moore, C.J., dissents.
The State petitioned the Supreme Court for review of a Court of Criminal Appeals' decision to reverse Curtis Maurice Sanders's conviction for third-degree burglary. Sanders entered a guilty plea. As a matter of first impression, the issue in this case before the Court was whether an unoccupied house that was scheduled for demolition constituted a "building" as defined in 13A-7-1(2), Ala. Code 1975, for purposes of 13A-7-7(a), Ala. Code 1975. "If the legislature had intended to exclude an abandoned building awaiting demolition from the purview of the statute, it could have included express language to that effect in the statute. However, it did not do so, and this Court will not read such language into the statute." Accordingly, the Court reversed the Court of Criminal Appeals' judgment and remanded the case for further proceedings.Receive FREE Daily Opinion Summaries by Email