Austin v. State

• Decision Date: 17 November 1989
• Docket Number: 4 Div. 361
• Parties: Dexter AUSTIN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 324

555 So.2d 324

Dexter AUSTIN v. STATE.

4 Div. 361.

Court of Criminal Appeals of Alabama.

Nov. 17, 1989.

Sam E. Loftin of Loftin & Loftin, Phenix City, for appellant.

Don Siegelman, Atty. Gen., and Sandra Lewis, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Dexter Austin was indicted for assault in the second degree in violation of § 13A-6-21(a)(2), Code of Alabama 1975, as amended. The jury found the appellant "guilty as charged in the indictment." The trial judge sentenced the appellant to one year and one day in the state penitentiary, suspended, and fined him $750.00. The judge also ordered him to pay $25.00 to the Alabama Crime Victims Compensation Fund and ordered him to pay restitution to the victim in the amount of $2,578.00.

On July 24, 1988, Brenda Perryman called the appellant on the telephone. She told the appellant that she needed to speak with him about his wife and her husband. The appellant agreed to meet Brenda at his shop in Phenix City, Alabama.

At the shop, Brenda told the appellant that she tapped her phone because she suspected that her husband, James Perryman, was having an affair with another woman. By tapping the phone, she taped a conversation between her husband and another woman. She told the appellant that she thought the woman's voice on the tape might be his wife's voice. The appellant listened to the tape and confirmed that the woman's voice on the tape belonged to his wife. The appellant testified that, when he heard the tape, he felt both hurt and angry.

The following afternoon, July 25, 1988, Brenda telephoned the appellant at his shop. She told the appellant that James came by her house. James told her that he knew that she had told the appellant that he had had an affair with the appellant's wife, Linda Austin. Brenda stated that James threatened her and said that the appellant's wife was a "fat pig" and looked like a "linebacker." James also admitted to having an affair with Linda for almost a year-and-a-half.

The appellant left his shop, accompanied by his son, and went to Brenda's home. Brenda said that she was afraid of James and was going to leave home. Brenda told the appellant that James was probably at his mobile home at a nearby trailer park.

The appellant and his son left Brenda's home and went towards James's home. The appellant testified that he was going there to tell James to stay away from his wife.

The appellant and his son parked their car in James's neighbor's yard. A barbed wire fence separated the two yards.

The appellant and James began arguing across the fence. James said, "I can't fight both of you, I'll fight one of you." The appellant responded, "okay, come on, ... me and you will fight." (R. 28.)

James testified that he crossed the fence, but his neighbor told them to get out of her yard. The appellant stated that James picked up a two-by-four (2 X 4) board and crossed the fence, but that, when he moved toward James, James went back across the fence into his own yard.

The appellant then crossed the fence into James's yard. James stated that he picked up a 2 X 4. He testified that the appellant pulled out a pocket knife at first and then he also picked up a 2 X 4. According to James, the appellant started swinging the 2 X 4 at him, while he used his 2 X 4 to block the appellant's blows.

The appellant's version was that he crossed the fence and that he and James "scuffled." The appellant stated that, in the process, James dropped the 2 X 4 and took off running. The appellant then picked up the 2 X 4 and chased James.

James turned the corner of his mobile home with the appellant close behind him. James ran into a neighbor's, Ronnie Hodge's, car, allegedly because he was hit from behind by the appellant. The appellant stated that James did run into the car, but that he did so because of his own momentum and not because he was hit by the appellant.

The appellant admitted to hitting James two or three times in the arm with the 2 X 4. Hodge, who was sitting on his front porch, witnessed the altercation. He ran out to where the two men were fighting and told the appellant to stop hitting James. The appellant told him to stay out of it, since this matter was no concern of his.

Hodge told the men that somebody was going to pay for the dent in his car. The appellant responded that James would pay, and the appellant ordered James to give Hodge the money in his wallet. James took the $22.00 which was in his wallet and paid it to Hodge. After he did this, the appellant struck James in the back of the head with the 2 X 4.

James then started walking towards his truck. He got in his truck and started to drive, allegedly en route to the hospital. James claimed that he was in so much pain that he decided to stop at his wife's home, which was on the way to town, and ask her if she would drive him to the hospital.

The appellant, who was in his car behind James, saw James turn into the driveway where James's wife lived. The appellant stated that he feared that James would try to harm his wife, Brenda. The appellant jumped out of his car and went over to where James and Brenda were standing. Brenda testified that James had a look in his eyes which she had seen before. She claimed that she was afraid James would try to hurt her.

The appellant stated that James made a move toward Brenda, and he hit James in the face with his fist. This blow knocked James to the ground. The appellant told James that he should beg Brenda for forgiveness. The appellant stated that James made a move toward Brenda, who was standing behind the appellant, and the appellant kicked James in the face and neck area.

James testified that he got back into his truck and drove to Brenda's mother's house, which was 300 yards from the hospital. He claims he stopped there to ask if she would take him to the hospital or call his parents. James then drove four miles back to his home. He claimed that he was afraid his truck would run out of gas, and he wanted to call his parents to have them meet him at the hospital. He got into his car and drove back to the hospital.

Dr. Norman Luton, Sr., of Cobb Hospital in Phenix City, Alabama, examined James. James was admitted to the hospital for over five days. Dr. Luton testified that James had bruises, contusions, and lacerations to the body and the head, and that he suffered three fractured ribs.

I

The appellant contends that his motion for judgment of acquittal and motion to exclude the State's evidence at the close of the State's case-in-chief should have been granted by the trial judge.

The indictment upon which this appellant was tried alleged that this appellant caused physical injury to James Perryman with a "deadly weapon or a dangerous instrument, to wit: a length of lumber...." (R. 192.) The corresponding Code section is § 13A-6-21(a)(2), Code of Alabama 1975, which reads as follows:

"(a) A person commits the crime of assault in the second degree if:

"....

(2) With intent to cause physical injury to another person, he causes physical injury to any person by means of a deadly weapon or a dangerous instrument...."

For this appellant's conviction to stand, there must be sufficient evidence to establish that the victim's "physical injuries" were caused by this appellant's hitting this victim with a "length of lumber," i.e., the 2 X 4. The appellant's primary argument both at trial and now on appeal is that there are at least three other possibilities that could have caused the victim's injuries: (1) he could have broken his ribs when he ran into Hodge's car, allegedly unassisted by this appellant; (2) he could have been injured by the appellant's son, who hit the victim with his fist at least once and possibly kicked the victim more than once while the victim was on the ground; or (3) he could have been injured when he was kicked by the appellant, and not by the appellant's hitting the victim with the 2 X 4. "Physical injury," in the context of this case, is "[i]mpairment of physical condition or substantial pain." Ala.Code § 13A-1-2(8) (1975).

Therefore, the physical injury here would encompass not only James's three fractured ribs but also the bruises, contusions, and lacerations, which all required medical attention. See Dixon v. State, 57 Ala.App. 30, 325 So.2d 546 (1975), cert. denied, 295 Ala. 399, 325 So.2d 551 (1976).

The "deadly weapon" or "dangerous instrument" in this case, in accord with the indictment, would be the 2 X 4 board, which appellant admittedly used to hit the victim in the arm and head on two or three occasions. We have stated before that an item may become a dangerous instrument or a deadly weapon depending on the manner in which the item is used. Davis v. State, 470 So.2d 1340, 1341-42 (Ala.Crim.App.1985) (use of a stick or tree limb); Helton v. State, 372 So.2d 390, 393 (Ala.Crim.App.1979). We find that a piece of lumber, when used to hit another in the head and body, constitutes a dangerous instrument. See Ala.Code § 13A-1-2(12) (1975).

Therefore, the only element remaining is whether this appellant intended to cause the victim's injuries. "A person acts intentionally with respect to a result or to conduct ... when his purpose is to cause that result or to engage in that conduct." Ala.Code § 13A-2-2(1) (1975). For there to be intent, "there must be knowledge of danger accompanied with a design or purpose to inflict injury" by the act done. Commentary, Ala.Code § 13A-2-2 (1975). Moreover, the question of intent is one for the jury. Loper v. State, 469 So.2d 707, 710 (Ala.Crim.App.1985).

In reviewing the evidence most favorably to the State, Cumbo v. State, 368 So.2d 871 (Ala.Crim.App.1978), cert. denied, 368 So.2d 877 (Ala.1979), the jury could have reasonably and fairly inferred, beyond a reasonable doubt, that this appellant (1) intended to injure the victim (2) by hitting him with a "length of lumber," and (3) that the victim's injuries were caused by those acts. See Howell v. State, ...