State v. LagatState v. Lagat
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- Before:
- Moon
Lead Opinion
Following a jury trial,
For the reasons discussed below, we affirm the judgment of conviction and sentence.
I. BACKGROUND
The charges against Lagat, filed on August 12, 1998,
In 1995, Lagat, who was then thirty-five Shears old, met Doe, the complaining witness, who was then fourteen. They entered into a sexual relationship, which lasted until the end of June 1997. At that time, according to the testimony of Doe, she broke off the relationship. Lagat, on the other hand, understood only that Doe needed “space” and that, therefore, the frequency of their dates would be reduced. It is undisputed that they continued seeing each other, that Doe knew Lagat was still in love with her, and that Lagat organized a birthday party for Doe in July 1997.
On the evening of August 16, 1997, Doe was sitting in a parked automobile with Tsut-sui, a man she had started dating earlier that month. Tsutsui and Doe had spent the evening together, and he was dropping her off near her home. They stayed in the parked car for a while, kissing and saying goodbye to each other. After exiting the vehicle, Doe saw Lagat running in her direction from a short distance away. Frightened, she got baсk into the car with Tsutsui, locked the door, and rolled up the window.
According to Doe, Lagat approached the car and, in a voice loud enough to be heard through the closed windows, demanded that Doe return jewelry he had given her during the course of their relationship. He also threatened Tsutsui. Doe testified that, in response, she rolled down her window to hand Lagat several pieces of jewelry, at which time, Lagat reached in and opened the passenger door. Lagat then pulled Doe out of the car, went inside the vehicle, and began beating Tsutsui. Doe also saw Lagat’s nephew, Edward Piloton (Edward), on the driver’s
Lagat’s testimony, which was translated into English from Tagalog with the aid of an interpreter, paints a different picture. He testified that he had called Doe’s home earlier in the evening and was told that she was out. His sister allowed him to use her car, driven by her son Edward, to go to Doe’s home, where he parked nearby and awaited her return. After waiting for approximately two hours, he noticed someone exiting a car at around midnight and suspected it was Doe. Lagat walked towards the car to verify that it was in fact she. Lagat testified that he confronted Doe on the sidewalk, asking her why she was returning so late. According to Lagat, Doe, in response, insinuated that Tsutsui had been attempting to coerce her into kissing him. Lagat contends that he then entered Tsutsui’s vehicle through the opened car door, admittedly without Tsut-sui’s permission, and sat in the passenger seat. He asked Tsutsui why he had been pressuring Doe to kiss him. Tsutsui responded in anger to his questioning, saying it was none of Lagat’s business, and then grabbed Lagat’s shirt. Lagat reacted by punching Tsutsui twice in the face. Lagat then exited the 'vehicle, and Tsutsui drove off.
It is undisputed that, aftеr the incident, Lagat took Doe to his home, where they had sex, and that Doe did not return to her own home until the following day. Doe testified that Lagat verbally and physically abused her after he took her from Tsutsui’s vehicle and forcibly placed her in the car driven by Edward. She stated that: (1) Lagat put his finger into her vagina to see if there was any evidence of sexual intercourse between Doe and Tsutsui; (2) while beating her, Lagat forcibly took her remaining jewelry; (3) she was taken against her will to Lagat’s home in the middle of the night; (4) Lagat forced her to have sex with him in a small, cramped walk-in closet that functioned as a bedroom; and (5) Lagat threatened to amputate his hands with a steak knife in order to punish himself for the abuse he had inflicted upon her.
During her testimony, Doe, who was seventeen-years old at the time of trial, began crying and spoke in a hushed tone of voice. Shortly after her testimony began, the trial court ordered a recess in the hope that Doe would regain her composure. The trial resumed shortly afterwards, but Doe was unable to refrain from crying during her testimony. A second recess was called after Doe began testifying with regard to the events that took place in Lagat’s walk-in closet/bedroom.
At this juncture of the proceedings, La-gat’s counsel moved for a mistrial. Counsel maintained that Doe’s crying and her “emotionality” would unduly prejudice Lagat’s right to a fair trial. The trial court recognized that Doe had been crying “virtually throughout her testimony” and that the crying was interfering with the record because “the court reporter sometimes ha[d] a hard time picking her up as well as some of the jurors.” However, the court denied the motion as premature. The court also directed the prosecutor to “inform the witness to try to control her emotions” and suggested that both parties draft cautionary instructions for possible later use should such instructions prove necessary.
Doe completed her testimony later that same afternoon, after the lunch recess and after the testimony of an expert witness. Doe’s afternoon testimony began where it had left off: with the events that took place in Lagat’s walk-in closet/bedroom. The record indicates that Doe apparently completed the remainder of her testimony, including cross-examination, without crying and that no unscheduled recesses were necessary to allow her to regain her composure. Having previously suggested that counsel draft cautionary instructions regarding Doe’s crying, the trial court queried counsel as to whether such an instruction was necessary. The prosecution objected to the need for a cautionary instruction, noting that Doe had “stopped crying after the long breаk that she had.” Defense counsel agreed, wishing to avoid calling further attention to Doe’s crying. Accordingly, no cautionary instruction was given to the jury.
is a tough girl, she doesn’t just cry at the drop of a hat. Well, you saw that she does cry at the drop of a hat. She sat up here for over an hour and cried during her direct examination. Why is she upset now? Because she’s in an awkward position. She doesn’t want to have to be up here and testify about things that aren’t true. She doesn’t want to put herself in this position. But this story has gathered steam, аnd it’s gathered momentum, and the impact—or frustration that she’s felt came to a head right here when she was on the stand, because she cried and cried and cried. She wasn’t crying on August 17th of 1997 when this supposedly happened. She wasn’t crying then. But why is she crying now? She was crying on the phone when she called her mom. Why is she crying then? She was busted then. She was in a bad situation. She was crying because she was busted.
Defense counsel later made another express reference to Doe’s propensity to cry by stating that “[s]he pretends to be a nice, sweet girl. She cries on the witness stand. But underneath there is a very conniving sixteen-year-old [sic], a very sophisticated sixteen-year-old [sic].”
The prosecution’s rebuttal argument also addressed the fact that Doe cried on the stand. The prosecutor argued:
If you look at [Doe] in one of the photos at the [Sexual Assault Treatment Center], she doesn’t look like she’s been crying. [Defense counsel] said, oh, you know, that’s bad for her because she’s not crying in those pictures. You saw [Doe] on the stand. Yes, [Doe] was crying when she first came on. But at the end—by the end, she had stopped crying. You know, every once in a while, tears would come down. Okay, so just because she’s not full balling [sic] in these pictures doesn’t mean nothing happened to her.... So if you think about it, you don’t just cry a whole day.
The trial court instructed the jury, among other things, that they should “not be influenced by pity for a defendant or a witness or by passion or prejudice against a defendant or a witness.” After deliberating, the jury found Lagat guilty of UEMV and robbery in the second degree, as charged. On all of the other counts, the jury found Lagat guilty of lesser included offenses. Lagat timely appealed.
II. STANDARDS OF REVIEW
A. Denial of Motion for Mistrial
The denial of a motion for mistrial is within the sound discretion of the trial court and will not be upset absent a clear abusе of discretion. State v. Loa,
B. Jury Instructions
“ When jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading,’ ” State v. Kinnane,79 Hawai'i 46 , 49,897 P.2d 973 , 976 (1995) (quoting State v. Kelekolio,74 Haw. 479 , 514-15,849 P.2d 58 , 74 (1993) (citations omitted))....
“ ‘[Ejrroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial.’” State v. Pinero,70 Haw. 509 , 527,778 P.2d 704 , 716 (1989) ... (quoting Turner v. Willis,, 326, 59 Haw. 319 582 P.2d 710 , 715 (1978)).
[E]rror is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error may have contributed to conviction. State v. Heard,64 Haw. 193 , 194,638 P.2d 307 , 308 (1981) (citations omitted). If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside. See Yates v. Evatt,500 U.S. 391 , 402-03 [111 S.Ct. 1884 , 1892-93,114 L.Ed.2d 432 ] (1991)[.]
State v. Jenkins,
III. DISCUSSION
A. Denial of the Motion for Mistrial
Lagat argues that the trial court abused its discretion by denying his motion for mistrial “on the ground that the complaining witness cried hysterically throughout the presentation of her testimony.” Lagat contends that the sight of Doe’s crying so inflamed the jury that his constitutional due process right to a fan* trial was compromised.
In support of his argument, Lagat cites three Hawaii cases, none of which are persuasive. In State v. Rulona,
In State v. Suka,
Finally, Lagat directs this court to State v. Palabay,
The foregoing cases are inapposite to La-gat’s case because, in all three cases, the issue involved the presence of additional people or the use of props at the witness stand, not the presence of tears rolling down the complaining witness’s cheeks. There is no indication in any of the above cases that crying, alone, constituted a violation of a defendant’s constitutional rights.
As noted by the Colorado Court of Appeals, other jurisdictions have indicated that outbursts of emotion by witnesses do not automatically prejudice a defendant’s right to a fail- tidal. In People v. Ned,
other jurisdictions have approved the denial of a mistrial when witnesses have become distraught. See Venable v. State,260 Ark. 201 ,538 S.W.2d 286 (1976) (no abuse of discretion in denying mistrial where victim’s stepmother broke down on the witness stand and asked why anyone would want to kill the victim; juiy admonished)[;] Duncan v. State,256 Ga. 391 ,349 S.E.2d 699 (1986) (no abuse of discretion in denying mistrial following outburst by victim’s mother while she was on the stand; jury instructed to ignore the outburst)[;] Commonwealth v. Andrews,403 Mass. 441 ,530 N.E.2d 1222 (1988) (no abuse of discretion in denying mistrial in murder case based upon spontaneous outburst by victimis mother while identifying photograph of victim; juiy immediately instructed to disregard the emotional display).
Ned,
Lagat’s argument that Doe “cried hysterically throughout the presentation of her testimony” is an overstatement. The record indicates that Doe cried initially when she took the witness stand, that she continued crying after a recess was called, and that the judge felt it necessaiy to call a second recess when it became obvious that she was not in control of her emotions.
During the second recess, the trial court specifically directed the prosecutor to caution the witness, discussed the potential for prejudice, and suggested that counsel draft cautionary instructions in the event they should prove necessary at a later stage of the trial. When Doe retened to the witness stand in the afternoon, she completed a lengthy direct and cross-examination without any further outbursts. The trial court took appropriate and successful steps to minimize any prejudicial effect that may have resulted from Doe’s crying. Lagat’s counsel expressly elected not to pursue the cautionary instruction to avoid any further attention being drawn to the crying.
Moreover, Lagat’s bald assertion that he was denied the right to a fair trial, standing alone, is insufficient to establish a prima facie showing of prejudice. Based on our review of the record, we refuse to second-guess the trial court concerning the prejudice, if any, that occurred as a result of Doe’s crying during the initial stages of her testimony. The fact that the jury returned guilty verdicts of lesser included offenses in four counts suggests that the jury was not completely swayed in favor of the prosecution by virtue of Doe’s outbursts. Accordingly, we hold that the trial court did not abuse its discretion in denying Lagat’s motion for mistrial.
B. Erroneous Jury Instructions
Lagat contends that the trial court erroneously instructed the jury on the offense of
A person commits the offense of unauthorized entry into motor vehicle if the person intentionally or knowingly enters or remains unlawfully in a motor vehicle with the intent to commit a crime against a person or against property rights.
The court’s instructions to the jury included a definition of the offense, which tracked the language of the statute vei’batim and added:
There are ttoee material elements of the offense of Unauthorized Entry into Motor Vehicle, each of which the prosecution must prove beyond a reasonable doubt.
These three elements are:
1. That on or about August 17, 1997, in the City and County of Honolulu, State of Hawaii, the Defendant Romulo Lagat entered or remained unlawfully in а motor vehicle; and
2. That the Defendant did so intentionally or knowingly; and
3. That the defendant did so with intent to commit a crime against the person of Kevin Tsutsui.
Intentionally, knowingly, or recklessly causing bodily injury to another person is a crime against [the] person.
The UEMV instructions were given over the objection of Lagat’s counsel, who stated for the record:
Our objection, your Honor, is that there’s no actual charge [oi] Assault in the Third Degree in this case and that this is not the kind of case that this particular offense was made for. We believe that Unauthorized Entry into Motor Vehicle should apply more to the breaking into vehicles to steal the property within it or for carjackings, and this is not what was anticipated by the legislature.
Although not specifically argued or explained, we recognize that Lagat’s objection may be interpreted as indicating that, if the prosecution alleges that assault in the third dеgree is the intended crime for purposes of the UEMV statute, then it must charge third degree assault in addition to UEMV. Such argument is without merit. In State v. Robins,
In his concurring opinion, Justice Acoba also highlights the similarities between the burglary statute and the UEMV statute. In doing so, he attempts to inject a requirement that the ease law does not, in fact, mandate. In Robins, this court concluded that, within the context of our burglary statutes, “the particular crime intended to be committed” is not “an essential element which must be alleged[.]” Robins,
In this appeal, Lagat frames his contention as a challenge to the jury instructions; however, he argues that “[t]he court should have dismissed [the UEMV charge] or entered [a] judgment of acquittal based upon the fact that the Legislature did not intend to use HRS [§ ] 708-836.5 in the manner in which the state used it.” Lagat suggests that the “motive for the prosecution to improperly use [the UEMV statute]” was to charge him with a greater offense, i.e., UEMV is a class C felony, whereas the only comparable charge that could have been made against him was assault in the thud degrеe, which is only a misdemeanor. La-gat’s argument, however, ignores the well-settled rule that “it is generally no defense to an indictment under one statute that the accused might have been charged under another, and the matter is necessarily and traditionally in the discretion of the prosecuting attorney.” State v. Rabago,
With regard to Lagat’s argument that “the Legislature did not intend to use HRS [§ ] 708-836.5 in the manner in which the state used it,” we note that this court has long recognized that, “[w]hen construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.” State v. Kotis,
The construction of a statute is a question of law which the appellate comt reviews de novo.... Departure from the literal construction of a statute is justified only when such construction would produce an absurd and unjust result and the literal construction is cleаrly inconsistent with the purposes and policies of the statute.
State v. Villeza,
We recognize that, as a general rule, penal statutes are to be strictly construed, and any ambiguities should be interpreted in favor of defendants. See State v. Ganal,
Inasmuch as the plain language of the UEMV statute is, on its face, clear and unambiguous, we conclude that Lagat’s argument with respect to legislative intent is
IV. CONCLUSION
Based on the foregoing, we affirm the trial court’s judgment of conviction and sentence.
Notes
. The Honorable Wendell K. Huddy presided over the jury trial.
. Lagal was originally charged with kidnapping, UEMV, two counts of sexual assault in the third degree, sexual assault in the first degree, and robbery in the second degree.
Concurrence Opinion
Concurring Opinion of
Although it is said that the crime or crimes intended need not be alleged, I believe it is preferable that the crime or crimes a defendant purportedly intended to commit in entering a motor vehicle be alleged in the charging document in a prosecution for unauthorized entry into motor vehicle (UEMV), Hawai'i Revised Statutes (HRS)
I.
In applying the UEMV statute, the referеnce to analogous case law concerning the burglary statutes,
While this court has indicated that, “under our [burglary] statutes[,]” “the particular crime intended to be committed” is not “an essential element which must be alleged,” id. at 315,
Despite the fact that such “holdings are treated as a general rule in compendiums of the law dealing with the subject,” Robins,
As to that question, this court observed that, on appeal, the appellate court “must look to all of the information supplied to [the defendant] by the State to the point where the court passes upon the contention that his [or her] right has been violated,” Robins,
If, indeed, the crime intended is apparent from the grand jury transcript, I also see no reason why, as Robins indicated, the prosecution should not specify the crime intended. A general allegation invites “unfair surprise! ] and [resulting] prejudice.” Id. at 315-16,
II.
Obviously, the failure to prove the intent to commit a crime in a motor vehicle, beyond a reasonable doubt, must result in an acquittal of the charge of UEMV. Conceivably, in limited situations, such a failure may result in a finding of simple trespass, which is a violation and not a crime. In this regard, the significance of identifying the crime(s) the prosecution purports was or were intended to be committed is prompted by the dissenting opinion of Justice Ramil, which maintains that the overlapping coverage under both the second degree burglary statute,
A person who enters or remains unlawfully in or on premises commits simple trespass. See
The general reference to “motor vehicle” in
By way of illustration, a person who breaks into a camper may be charged with UEMV. His or her claim that entry was not for the purpose of committing a crime, but to seek shelter, may entitle him or her to a lesser included instruction
III.
In the event the prosecution chooses not to specify the crimes intended, trial courts should freely grant bills of particulars for identification of such crimes. See State v. Balanza,
. It is unclear whether the defense sets forth two grounds in opposition to the elements instruction or a single, alternate contention: the first ground as quoted in the text, supra, "and [the second,] that this is not the kind of case that this particular offense was made for[;] ... [UEMV] should apply more to breaking into vehicles to steal property within it or for carjackings” (emphasis added); or that the defense's reference to the lack of an assault charge was intended to support its view that the UEMV statute applied only to intended property crimes.
. The fifth amendment to the United States Constitution and article I, section 10 of the Hawai'i Constitution state, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury[.]’’
. The United Slates Constitution, amendment VI, and article I, section 14 of the Hawai'i Constitution state that "Din all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation!.]”
.
Simple trespass. (1) A person commits the offense of simple trespass if the person knowingly enters or remains unlawfully in or upon premises. (2) Simple trespass is a violation.
.
[a]n offense is so included when .. . [i]t is established by proof of the same or less than all the facts required to establish the cоmmission of the crime chargedfJ
(Emphasis added.)
As stated supra, a person commits simple trespass by "knowingly entering] or remain[ing] unlawfully in or upon premises.”
. The rule regarding bills of particulars is now set forth in the Hawaii Rules of Penal Procedure Rule 7(g), which states:
(g) Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within 10 days of arraignment or at such other later time as the court may permit. A bill of particulars may be amended at any time subject to such сonditions as justice requires.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. In my view, although the language of the UEMV statute is clear on its face, the statutory-scheme and stated legislative intent are clearly at odds with the statute’s application in Lagat’s case. At the very least, this discrepancy creates an ambiguity that must be addressed. As such, I must disagree with the majority’s view that adopts the plain language of the statute while disregarding equally clear evidence that calls the application of the statute in Lagat’s case into doubt.
As the majority points out:
Departure from the literal construction of a statute is justified only when such construction would produce an absurd and unjust result and the literal construction is clearly inconsistent with the purposes and policies of the statute.
Majority at 499,
we have rejected an approach to statutory [interpretation] which limits us to the words of a statute, no mаtter how clear they may appear upon perfunctory review. For we recognize our primary duty [in interpreting statutes] is to ascertain the intention of the legislature and to implement that intention to the fullest degree, and where there is ... material evidencing legislative purpose and intent, there is no reason for a court to seek refuge in “strict construction,” “plain meaning,” or “the popular sense of the words.”
Kaiama v. Aguilar,
As noted in State v. Aplaca,
In Lagat’s case, the statutоry phrase “intent to commit a crime against a person,” reading it out of context, specifically prohibits Lagat’s actions at first glance. However, further inquiry into the statutory scheme reveals evidence that the legislature enacted
A.
The commentary to
These legislative choices, specifically the overt commentary to the UEMV statute, suggest the legislature had a very, specific purpose in mind when enacting the UEMV statute. Any general application of the statute, without requiring that Lagat’s criminal conduct be related to theft, would not only exceed the bounds of the statute’s stated purpose, but would unnecessarily “trump” other statutes.
B. Second Degree Burglary Rendered Superfluous
It is a rule of statutory construction that “courts are bound to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void,
One such statute that would be rendered superfluous by the majority’s interpretation of the UEMV statute is second degree burglary,
An interpretation of the UEMV statute that prohibits any crime committed in a vehicle (including simple assault), would render the second degree burglary statute superfluous as it pertains to vehicles. The definition section applicable to the burglary statutes defines “building” to include vehicles “used for lodging.”
C. Other jurisdictions
The uncertainty and ambiguity presented by the Hawai'i UEMV statute prompts a review of other jurisdictions with similar statutes. Some jurisdictions have enacted “carjacking” statutes, drafted specifically to cover the taking of a motor vehicle from a person or custody of another—these stаtutes take on a form very similar to general robbery statutes.
Although it is not the judiciary’s job to redraft statutes, it is our job to give meaning to the chosen words of the legislature and exert effort to insure that the meaning coincides with legislative intent. The ambiguities presented by the UEMV statute as drafted do not convince me that this duty will be fulfilled by affirming Lagat’s conviction under this statute.
.
Burglary in the second degree. (1) a person commits the offense of burglary in the second degree if the person intentionally enters or remains unlawfully in a building with intent to commit therein a crime against a person or against property rights.
(2) Burglary in the second degree is a class C felony.
.
"Building’’ includes any structure, and the term also includes any vehicle, railway car, aircraft, or watercraft used for lodging of persons therein; each unit of a building consisting of two or more units separately secured or occupied is a separate building.
(Emphases added.)
. FLA. STAT. ANN. § 812.133 (West 2001) ("Carjacking. "Carjacking" means the taking of a motor vehicle which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the motor vehicle, when in the course of the taking there is the use of force, violence, assault, or putting in fear.”); GA. CODE ANN. § 16.5.44.1 (2001) ("Hijacking a motor vehicle, (b) A person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.”); 720 ILL. COMP. STAT. 5/18-3 (West 2001) ("Vehicular hijacking, (a) A person commits vehicular hijacking when he or she takes a motor vehicle from the person or the immediate presence of another by the use of force or by threatening the imminent use of force.”); IND. CODE ANN. § 35-42-5-2 (West 2001) ("Carjacking. A person who knowingly or intentionally lakes a motor vehicle from the person or the immediate presence of another by the use of force or by threatening the imminent use of force."); MD. ANN. CODE art. 27, § 348A (2000) (“Carjacking, (b)(1) An individual commits the offense of carjacking when the individual obtains unauthorized possession or control of a motor vehicle from another individual in actual possession by force or violence, or by putting that individual in fear through intimidation or threat of force or violence.”); MICH. COMP. LAWS ANN. § 750.529a (West 2001) ("Carjacking./ 1) A person who by force or violence, or by threat of force or violence, or by putting in fear robs, steals, or takes a motor vehicle as defined in section 412 from another person, in the presence of that person or the presence of a passenger or in the presence of any oilier person in lawful possession of the motor vehicle, is guilty of carjacking....”); S.C. CODE ANN. § 16-3— 1075 (Law.Co-op.2001) ("Felony of carjacking; penalties. (B) A person is guilty of the felony of carjacking who takes, or attempts to take, a motor vehicle from another person by force and violence or by intimidation while the person is operating the vehicle or while the person is in the vehicle...VA. CODE ANN. § 18.2-58.1 (West 2001) (“Carjacking; penalty. (B) “carjacking” means the intentional seizure or seizure of control of a motor vehicle of another with intent to permanently or temporarily deprive another in possession or control of the vehicle of that possession or control by means of partial strangulation, or suffocation, or by striking or beating, or by other violence to the person, or by assault or otherwise putting a person in fear of serious bodily harm, or by the threat of presenting of firearms, or other deadly weapon or instrumentality whatsoever....”)
. CAL. PENAL CODE § 459 (West 2001) ("Chapter 2. Burglary. Definition. Every person who enters any house, room, apartment, ... any house car, ... vehicle ..., when the doors are locked, ... with intent to commit grand or petit larceny or any felony is guilty of burglary.”); OKLA. STAT. ANN. tit. 21, § 1435 (West 2001) ("Burglary in second degree—Acts constituting. Every person who breaks and enters any building or part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel, or other structure or erection, in which any property is kept, ... with intent to steal any property therein or to commit any felony, is guilty of burglary in the second degree.”); TENN. CODE. ANN. § 39-14-402 (2000) ("Burglary. (a) A person commits burglary who, without effective consent of the properly owner: . .. (4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault.")