Ainsworth v. State, 4 Div. 314

• Decision Date: 13 November 1984
• Docket Number: 4 Div. 314
• Citation: 465 So.2d 467
• Parties: Willie Lee AINSWORTH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 467

465 So.2d 467

Willie Lee AINSWORTH v. STATE.

4 Div. 314.

Court of Criminal Appeals of Alabama.

Nov. 13, 1984.

Rehearing Denied Dec. 11, 1984.

Certiorari Denied Feb. 22, 1985

Alabama Supreme Court 84-329.

Jerry E. Stokes, Andalusia, for appellant.

Charles A. Graddick, Atty. Gen., and Phillip Luke Hughes, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty on a trial on the following indictment:

"THE GRAND JURY OF COVINGTON COUNTY CHARGES THAT BEFORE THE FINDING OF THIS INDICTMENT, WILLIE LEE AINSWORTH ... DID KNOWINGLY OBTAIN OR EXERT UNAUTHORIZED CONTROL OVER A MOTOR VEHICLE, TO-WIT: A 1975 GRAND PRIX PONTIAC AUTOMOBILE, THE PROPERTY OF MARY LOU ARMSTRONG, WITH THE INTENT TO DEPRIVE THE OWNER OF SAID MOTOR VEHICLE IN VIOLATION OF TITLE 13A-8-3 OF THE CODE OF ALABAMA 1975, AND AS LAST AMENDED, AGAINST THE PEACE AND DIGNITY OF THE STATE OF ALABAMA."

According to Section 13A-8-3(c), theft of property in the first degree is a Class B felony, which by § 13A-5-6(a)(2) is punishable by imprisonment for "not more than 20 years or less than 2 years." At a sentence hearing conducted after defendant had been given due notice of the State's intention to proceed against him under the Habitual Felony Offenders Act, and it was shown that defendant had been previously convicted of three felonies, the court sentenced him to imprisonment for life, which punishment was made mandatory under § 13A-5-9(c)(2).

No issue is raised on appeal as to the sufficiency of the evidence to support the verdict. Nevertheless, we deem it appropriate to state here a sufficient part of the evidence to assure that proper consideration is given to each of the issues raised on appeal. In doing so, we quote from the "STATEMENT OF FACTS" contained in brief of counsel for appellant, which appellee states in its brief "is substantially correct and is adopted herein by reference." We will endeavor to limit the quotations that follow to those that have a material bearing upon the issues raised on appeal:

"... The gist of the story is that Mary Lou Armstrong had a Pontiac Grand Prix for sale which was on display at Christine's Country Barbecue on the 18th day of August, 1983. The defendant Willie Lee Ainsworth saw this automobile, and after making inquiry at Christine's Country Barbecue, ascertained that the Pontiac belonged to Mary Lou Armstrong. After preliminary discussions during the afternoon of August 18, Ainsworth and Mary Lou Armstrong together took a test drive in the Pontiac. The test drive was a short one, but by the time the two had returned to Christine's Country Barbecue a deal had supposedly been reached as to the sale of the car. According to Mrs. Armstrong, she was talked into driving Mr. Ainsworth back to Red Level, Alabama, a distance of approximately thirteen miles, where he would obtain the money at his home to pay her for the automobile that very night...."

"... Mrs. Armstrong testified that Ainsworth pulled over to the side of the highway just outside Red Level and told her that he wanted to leave his truck at a service station in Red Level. The journey continued on to the station in Red Level, Alabama, at which Ainsworth left his pickup truck, and transferred his effects, including a bottle of whiskey from his truck into the Pontiac...."

"Mrs. Armstrong continued to drive, following directions given to her by Ainsworth. They drove down to the Brooklyn Road area south of Andalusia and got on to some back country roads still continuing, according to Mrs. Armstrong, on their trip to the house of Willie Lee Ainsworth."

"The couple finally arrived at a driveway leading to a brick home on a country road .... There was a driveway leading up to the house, but an unusual predicament was presented in that an automobile was parked in the driveway evidently occupied by two persons having sexual relations. Mrs. Armstrong said that it was 'somewhere around 6:30' when they arrived at the blocked driveway. Up until this time, according to Mrs. Armstrong, Ainsworth had said nothing suggestive to her. The two went on down the road and turned around and came back along the same road in the vicinity of the driveway. At this time Mrs. Armstrong said that Ainsworth asked her to stop and let him drive because if 'they' should see him driving, they would get out of his driveway. At that point, Ainsworth took the wheel and started driving the automobile. The driveway to Mr. Ainsworth's 'home' was still occupied when the two returned to the driveway, and at this time Mr. Ainsworth suggested that one of the occupants of the automobile was the daughter ....

"Again the couple drove on by, and at one point they stopped and both Mary Lou Armstrong and Willie Lee Ainsworth got out of the car, looked under the hood, and examined the battery. When they left this spot, Ainsworth continued to drive and returned back to the driveway at the brick house. This time the car with the mysterious couple was gone from the driveway."

"It was at this point that Mary Lou Armstrong said that Ainsworth started trying to proposition her. He offered her five hundred additional dollars for her automobile in exchange for sexual favors. Mary Lou Armstrong stated that she resisted his advances and resisted Ainsworth when he started trying to kiss her and handle her. The incident allegedly continued until Ainsworth told Mary Lou Armstrong to either get into the back seat and have sex with him or to get out of the car. Mary Lou Armstrong got out of the car and then Ainsworth drove off with her automobile. She said that Ainsworth told her that she would find her automobile at the service station in Red Level where he had left the truck. The automobile was subsequently located in an abandoned condition near the Flomaton-Wallace Exit of Interstate 65 which was twelve miles south of the Castleberry Exit. It would appear from the record that the automobile was found approximately five days later by Woodrow Stewart, an Alabama State Trooper, at a point approximately twenty miles from the Brooklyn Road area where the incident is said by Mrs. Armstrong to have occurred. The trooper testified that spark plug wires had been removed from the engine, the breather assembly was in the rear seat, along with a pillow, an empty cassette container, and that no personal effects were found in the automobile other than a Social Security card bearing the name Mary Lou Armstrong.

"In addition to the testimony of Mary Lou Armstrong, Covington County Sheriff Don Harrell testified to a conversation with Willie Lee Ainsworth after his arrest, the admissibility of which is one of the issues in this appeal. The substance of Sheriff Harrell's testimony was that Ainsworth had talked to him while he was in jail in Covington County under charges of sexual abuse or rape as well as the theft of the Armstrong vehicle. Sheriff Harrell testified that Ainsworth told him that he, the sheriff, had been knowing him a long time and that he knew he was not guilty of the charges of rape or sexual abuse but that he had taken the lady's car. Ainsworth stated however that that was all he was guilty of. Sheriff Harrell testified that Ainsworth did not make any statement to him as to whether or not he intended to keep the car. Sheriff Harrell further testified that in his questioning of Ainsworth there was no evidence that Ainsworth tried to dispose of the car or sell it or anything of that nature after he obtained possession of it. Sheriff Harrell further testified that the rape and sexual abuse charges were presented to, but were no billed by the grand jury to the best of his knowledge, although he was not absolutely sure."

The only witnesses testifying in the case were witnesses called by the State. When the State rested its case, defendant's counsel stated promptly that the defendant also rested.

I.

By his first issue, appellant contends that "the trial court committed reversible error by refusing defendant's requested jury charges 'numbers 1, 2, and 3.' " We consider separately each of said refused charges requested in writing by defendant.

Defendant's requested Charge No. 1 states:

"The Court charges you that where one takes the vehicle of another without his permission, intending only to drive it somewhere and leave it where the owner may reclaim it, he is not guilty of theft of property in the first degree."

We realize that under the evidence in this case it is possible that in taking the vehicle of the owner without her permission, the defendant intended "only to drive it somewhere and leave it where the owner may reclaim it," but there is no evidence in the case to support an inference that such was the intention of defendant. The charge is predicated upon an assumption of fact as to the actual intent of defendant for which the evidence furnishes no basis. The trial court was correct in refusing the charge.

Defendant's requested Charge No. 3 states:

"The Court charges you that a...