Culp v. State, CR–13–1039.

• Citation: 178 So.3d 378
• Decision Date: 21 November 2014
• Docket Number: CR–13–1039.
• Parties: Robert N. CULP, Jr. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

178 So.3d 378

Robert N. CULP, Jr.

v.STATE of Alabama.

CR–13–1039.

Court of Criminal Appeals of Alabama.

Nov. 21, 2014.

Rehearing Denied Jan. 30, 2015.

Certiorari Denied March 13, 2015

Alabama Supreme Court 1140470.

Thomas K. Brantley, Dothan, for appellant.

Luther Strange, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.

BURKE, Judge.

Robert N. Culp, Jr., appeals his conviction for domestic violence in the second degree, a violation of § 13A–6–131, Ala.Code 1975, and his resulting sentence of five years' imprisonment.¹ The circuit court suspended the term of imprisonment and placed Culp on probation for three years. The circuit court also ordered Culp to pay a $1,000 fine, court costs, restitution, and to make a $750 contribution to the Alabama Crime Victims Compensation Fund. The circuit court further ordered Culp to have no contact with the victim in the case.

The evidence admitted during Culp's trial tended to establish that on April 8, 2008, Brandis Hand was living with Culp, her boyfriend, in Henry County. Hand was planning to go to a Walmart department store when Culp told her that he would not allow her to go because she was "always spending his money." (R. 180.) Hand told Culp that she was leaving him and taking her dog with her. Hand picked up the dog and began opening the front door when Culp reached over Hand's head and pushed the door closed. Culp struck Hand on the left side of her jaw with his fist. Hand began bleeding from her mouth and she was unable to talk because her jaw "was cocked over." (R. 221.) Culp told Hand that she had bitten her tongue. Hand attempted to get Culp to dial emergency 911, but he would not because he said that "[h]e would go to jail." (R. 223.) Hand wrote notes to communicate with Culp, and, while Culp was in his bedroom, she left their trailer and drove to the home of her friend Chase Jones. Jones drove Hand to the hospital.

Dr. Greg Bess, a maxillofacial surgeon, operated on Hand's jaw. When Dr. Bess first saw Hand, "she had some swelling, and her bite was way off. Her jaw was off to the side." (R. 194.) Hand told Bess that she had injured herself when she fell down while walking her dog. Dr. Bess determined that Hand had two fractures of her lower jaw

; one fracture was on the lower left side and the other fracture was on the lower right side. Dr. Bess used titanium plates and screws to put Hand's jaw back "in its normal position." (R. 198.)

Culp called his friends Wally Howerton and Jimmy Danzby to testify about a trip that Hand and Culp had taken to Atlanta with several of their friends in July 2008. Culp also called Jason Selva, a narcotics investigator with the Henry County Sheriff's Office, who testified about his interactions with Hand when she turned herself in on a warrant for theft of property in the first degree. Selva also testified that Hand's reputation for violence was bad, as was her reputation for truth and veracity.

I.

Culp first argues that the circuit court erred when it denied his motion for judgment of acquittal. Culp asserts that the State failed to establish that he intentionally caused the injuries suffered by Hand and that Hand's testimony was not credible.

A.

Culp contends that the circuit court committed error when it denied his motion for judgment of acquittal because the State failed to prove a prima facie case of second-degree domestic violence because it did not prove that he "intentionally caused the serious injuries sustained by the alleged victim." (Culp's brief, p. 11.)

" ‘The issue of the sufficiency of the evidence is preserved for review by a defendant's motion for a judgment of acquittal that is entered at the end of the state's case, at the close of the evidence ..., or after the verdict is entered.’ Zumbado v. State, 615 So.2d 1223, 1241 (Ala.Crim.App.1993).

" ‘ " ‘The trial court's denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Crim.App.1978). In applying this standard, this court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Crim.App.1983).’ " '

" Hollaway v. State, 979 So.2d 839, 843 (Ala.Crim.App.2007) (quoting Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003), quoting in turn Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992) (citations omitted)).

" ‘ "In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution." Faircloth v. State, 471 So.2d 485, 489 (Ala.Crim.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala.1985).

" ‘ "....

" ‘ " ‘The role of the appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury's verdict only where it reaches ‘a clear conclusion that the finding and judgment are wrong.’ Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). ‘[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense.’ Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960)."

" ‘Granger [v. State ], 473 So.2d [1137,] 1139 [ (Ala.Crim.App.1985) ].’

" White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989)."

Hulsey v. State, [Ms. CR–13–0357, October 3, 2014] (Ala.Crim.App.2014).^*

Section 13A–6–131(a), Ala.Code 1975, provides:

"A person commits the crime of domestic violence in the second degree if the person commits the crime of assault in the second degree pursuant to Section 13A–6–21 [, Ala.Code 1975], ... and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant."

Section 13A–6–21(a)(1), Ala.Code 1975, provides that "[a] person commits the crime of assault in the second degree if the person ... [w]ith intent to cause serious physical injury to another person, ... causes serious physical injury to any person." "Serious physical injury" is defined, in turn, in § 13A–1–2(14), Ala.Code 1975, as "[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ."

To sustain a conviction of domestic violence in the second degree in this case, the evidence would need to demonstrate that Hand's relationship with Culp corresponded with one of the types of relationships set out in § 13A–6–131(a), that Culp inflicted serious physical injury to Hand, and that Culp intended to do so. Hand testified that Culp had been her boyfriend and that she and Culp had lived together "[o]ff and on" for approximately a year when she decided to leave him on April 8, 2008. (R. 385.) That evidence, which demonstrated that at the time of the assault Hand was "a present or former ... member" of Culp's household and that she was "a person who ... had a dating ... relationship with [Culp]," satisfied the relationship requirement of § 13A–6–131(a).

The evidence was also sufficient to allow the jury to determine that Hand suffered "serious physical injuries." In Anderson v. State, 686 So.2d 381 (Ala.1996), the Alabama Supreme Court held that "testimony indicat[ing] that the victim had a deep puncture wound

from a knife; trauma to the head, along with various bruises and scrapes; a fractured rib; and a burst eardrum" was sufficient to establish that the victim had suffered "serious physical injuries."² 686 So.2d at 385.

In the instant case, Dr. Bess testified that, after the assault, Hand's lower jaw was broken

in two places and that she "had some swelling, and her bite was way off. Her jaw was off to the side." (R. 194.) Dr. Bess also said that "[i]t would take a lot of force to break a mandible in a young, healthy person." (R. 195.) Dr. Bess performed surgery on Hand's jaw, during which he repaired it with metal plates and screws. Dr. Bess testified that Hand "had a lot of pain." (R. 202.) Hand testified that, after Culp broke her jaw, she could not speak because of the injury. Hand also said that the level of pain she experienced after being hit "was pretty intense" and that she went into shock after arriving at the hospital. (R. 224.) That evidence demonstrated that Hand suffered "serious physical injuries" from the assault.

The evidence also demonstrated that Culp intended to cause Hand's injuries. "Intent may be presumed from the use of a deadly weapon, the character of the assault, and other attendant circumstances surrounding the assault." Wells v. State, 768 So.2d 412, 415 (Ala.Crim.App.1999).

"Further, ‘ "[i]ntent, we know, being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence." ’ Ex parte C.G., 841 So.2d 292, 301 (Ala.2002), quoting Pumphrey v. State, 156 Ala. 103, 106, 47 So. 156, 157 (1908). Although evidence tending to show intent is usually circumstantial, ‘[c]ircumstantial evidence is not inferior evidence, and it will be given

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