Bolden v. State

• Decision Date: 30 June 1989
• Docket Number: 6 Div. 40
• Citation: 568 So.2d 841
• Parties: Willie BOLDEN and Mary Jane Hill v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 841

568 So.2d 841

Willie BOLDEN and Mary Jane Hill v. STATE.

6 Div. 40.

Court of Criminal Appeals of Alabama.

June 30, 1989.

Rehearing Denied Aug. 25, 1989 for Hill.

Certiorari Quashed March 2, 1990 for Hill

Alabama Supreme Court 88-1591.

Edwina E. Miller, Tuscaloosa, for appellant Bolden.

Gary L. Blume of Blume & Blume, Tuscaloosa, for appellant Hill.

Don Siegelman, Atty. Gen., and J. Clayton Crenshaw, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Willie Bolden and Mary Jane Hill were jointly indicted for arson in the second degree, attempted theft in the first degree, and intimidating a witness. Bolden was convicted of each offense and was given concurrent sentences of imprisonment of 20 years for arson, 10 years for attempted theft, and 10 years for intimidating a witness. Hill was convicted of arson and attempted theft but was acquitted of intimidating a witness. She was given consecutive sentences of imprisonment of 10 years for arson and five years for attempted theft. This is an appeal by both Bolden and Hill from their convictions.

I

Both appellants argue that the trial judge erred in failing to timely rule on their motions for judgment of acquittal made at the close of the State's evidence.

Rule 12.2(b), A.R.Cr.P.Temp., states in part, "If the motion for judgment of acquittal is made after the close of the State's evidence, the court shall rule on the motion before calling on the defendant to present his evidence." Rule 12.2(b) contains no provision that a motion for judgment of acquittal made at the close of the State's evidence shall be deemed overruled at that time if the motion is not ruled on before calling on the defendant to present his evidence. Compare another portion of Rule 12.2(b): "If the motion [for judgment of acquittal] is made at the close of all the evidence in a jury case, the court shall rule on it before permitting argument or charging the jury; if it is not ruled on at that time, it is deemed denied."

The record shows that Bolden, through counsel and at the close of the State's evidence, moved for a judgment of acquittal of the charges of attempted theft and intimidating a witness. The trial judge specifically overruled that motion. Then Hill, through counsel, moved for a judgment of acquittal on all three charges. After argument by Hill's counsel, the trial judge stated, "Well, I will hold off on ruling on that until the end of the evidence."

After that, Bolden's attorney "add[ed] a couple of more points," to which the trial judge responded, "It is a jury question."

Bolden has no ground of complaint on this first issue because the trial judge explicitly and implicitly overruled his motion. Hill cannot complain of the trial judge's postponement of his ruling on her motion, because she made no objection to his inaction. In this situation, an adverse ruling by the trial judge on either the motion itself or on a request for a ruling is a prerequisite to preserving for appeal the issue of the timeliness of the judge's action. See Pitts v. State, 140 Ala. 70, 80, 37 So. 101, 104 (1904). "In the absence of a ruling, a request for a ruling, or an objection to the court's failure to rule, we have nothing to review." Whorton v. State, 422 So.2d 812, 813 (Ala.Cr.App.1982).

II

Each appellant argues that his/her motion for a judgment of acquittal made at the close of the State's evidence should have been granted because, under principles of double jeopardy, they could not properly be charged with both arson and attempted theft. This particular ground was not specifically raised in the motion for judgment of acquittal made at the close of the State's evidence. Principles of jeopardy were not specifically advanced in the arguments made in support of those motions. Hill's defense counsel did, at one point, argue that defendant Hill "either committed arson or she committed an attempted theft."

Neither appellant filed a pretrial motion raising the grounds now presented. By failing to do so, they waived the objection now raised. Under Rules 16.2(a) and (c), A.R.Cr.P.Temp., the defense of jeopardy should be raised by a pretrial motion. The general rule is that the defense of jeopardy is untimely when it is raised after a plea of not guilty has been entered. Ex parte Sales, 460 So.2d 1252, 1254 (Ala.1984).

Moreover, we find no merit to the substance of the appellants' argument.

Both appellants were charged in a single indictment containing six counts. Count I charged Bolden with the arson of a building belonging to Hill. Count II charged him with the theft by deception of $56,966.86 from the Excelsior Insurance Company. Count III charged him with intimidating Sheila Mitchell, a witness before the grand jury. Counts IV, V, and VI were identical charges against Hill.

The State's evidence showed that Hill lived at 3013 Universal Heights Road in Tuscaloosa, Alabama. On September 9, 1983, Excelsior Insurance Company issued Hill a policy on her residence. The amount of the policy totalled $90,000. On September 9, 1984, the policy was renewed and coverage increased to a total of $107,000.

Hill's house was destroyed by fire on the night of September 17, 1984, eight days after the renewal of the insurance policy. On December 6, 1984, Hill filed a proof of loss claim with the insurance company for $56,966.86. The insurance company did not pay this claim. The company did make one payment to each of the two mortgagees named on the insurance policy: $14,954.29 to the Lomast and Nettleton Company, and one for $9,303.36 to City Finance Company.

There was evidence of two fires at Hill's residence on September 17, 1984. The first one occurred at approximately 6:30 that evening. There was testimony that Bolden went into the house, "lit something," and came running or walking out. Seconds later, there was an explosion and a fire. This fire caused minimal damage to most of the house. There was "pretty severe" smoke damage in the kitchen where the fire was "almost inclusively [sic]" located. Officers with the Tuscaloosa Fire Department noticed the smell of "gas" in the kitchen although the house was "all electric." The fire department made certain that the fire was extinguished and left.

Around 11:30 that same night, Hill's black station wagon was observed arriving at the residence. In the car were Hill and Bolden, Hill's mother and daughter, and Troy Boyd. Everyone got out of the car. A short time later, the house exploded as the station wagon was observed leaving the residence. The tires from the vehicle screeched as it backed away from the house with its lights off. The vehicle did not stop or return after the explosion.

The explosion had enough force to blow out two walls of a corner bedroom. Samples of the mattress and bedding from that bedroom were scientifically examined and found to contain gasoline.

There was sufficient evidence to support the reasonable inference that before the fire, items of furniture and other personal property had been removed from the house by Bolden and others and taken to the residence of Hill's mother.

There was testimony that a "couple of days" after the fire, Bolden and Hill came to the residence of Sheila Mitchell Wilson who lived on the same street five houses from Hill. Earlier, a man who identified himself as "a private investigator for the insurance company" had questioned Ms. Wilson and others and obtained their statements. Bolden got out of Hill's station wagon and asked Ms. Wilson why she told "their lawyer" all "those lies." Ms. Wilson testified that Bolden told her, "You should keep your mouth shut," and that he said, "he could ax [them] up right there and plead insanity, and wouldn't nothing be done about it."

The evidence in this case was sufficient to authorize the jury to find that Bolden committed the crime of arson in the second degree because "he intentionally damage[d] a building by starting ... a fire or causing an explosion" in violation of Ala.Code 1975, § 13A-7-42. The circumstantial evidence is also sufficient to afford the reasonable inference that Hill acted as both a principal and as an accomplice to the burning of her own house. Ala.Code 1975, § 13A-2-23. There was evidence that Hill did not destroy her residence for a lawful or proper purpose and that two mortgage companies had a proprietary interest in the residence destroyed. See Ala.Code 1975, § 13A-7-42(b).

The corpus delicti of the offense of arson may be established by inference, see Cunningham v. State, 14 Ala.App. 1, 7, 69 So. 982, 985 (1915), and by circumstantial as well as direct evidence, Whatley v. State, 37 Ala.App. 706, 708, 75 So.2d 182, 185 (1954), overruled on other grounds, Ex parte Locke, 527 So.2d 1347 (Ala.1988). See Franklin v. State, 502 So.2d 821, 827-28 (Ala.Cr.App.1986), cert. quashed, 502 So.2d 828 (Ala.1987); Williams v. State, 474 So.2d 178, 181 (Ala.Cr.App.1985).

The evidence in this case was also sufficient to prove that both appellants were guilty of attempted theft in the first degree in violation of Ala.Code 1975, § 13A-8-3. There was evidence that, three months after the fire, Hill filed a verified and itemized claim with her insurance company for property lost in the fire. There was evidence that, a few months before the fire, Bolden had removed some of the property from Hill's house. There was other evidence authorizing the inference that items of property reportedly destroyed in the fire were in Hill's mother's house.

Both Bolden and Hill argue that they should not have been convicted of both arson and attempted theft because the attempted theft charge was "an element of the arson charge--the unlawful purpose for burning the house."

Here, a single criminal act was not split in order to justify multiple convictions. Arson and theft are two separate offenses involving separate elements and separate acts. See Brown v. Alabama, 619 F.2d 376, 378 (5th Cir.1980) (robbery and assault with intent to murder separate and distinct...