Dailey v. State

• Decision Date: 07 February 2020
• Docket Number: CR-18-0699
• Parties: Vermillion Dionne DAILEY v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

316 So.3d 253

Vermillion Dionne DAILEY

v.STATE of Alabama

CR-18-0699

Court of Criminal Appeals of Alabama.

February 7, 2020

Rehearing Denied May 22, 2020

Certiorari Denied July 10, 2020

Alabama Supreme Court 1190684

Thadius W. Morgan, Jr., Enterprise, for appellant.

Steve Marshall, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.

McCOOL, Judge.

Vermillion Dionne Dailey appeals her conviction for first-degree assault, a violation of § 13A-6-20, Ala. Code 1975, and her resulting sentence of 78 months' imprisonment. The trial court split Dailey's sentence and ordered Dailey to serve 12 months' imprisonment, followed by a 36-month probationary term. For the reasons set forth herein, we affirm that judgment.

Facts and Procedural History

On September 28, 2017, a Coffee County grand jury returned an indictment charging Dailey with first-degree assault under § 13A-6-20(a)(2), Ala. Code 1975, which provides: "A person commits the crime of assault in the first degree if[,] ... [w]ith intent to disfigure another person seriously and permanently, or to destroy, amputate, or disable permanently a member or organ of the body of another person, he or she causes such an injury to any person[.]" The evidence presented at trial tended to establish the following facts.

In March 2017, Dailey and Lekisha Lewis were both employed at a Taco Bell fast-food restaurant in Enterprise. Lewis testified that, in the two weeks preceding the incident giving rise to this case, she and Dailey had "argued and ... exchanged words" while working at the restaurant. (R. 55.) According to Lewis, on March 10, 2017, she and Dailey were working at the restaurant and were "just nitpicking back and forth," i.e., there were "words going back and forth" between them. (R. 25.) Lewis testified that Dailey was "bothering" her throughout the evening and that at one point Dailey "had started getting up close to [her]," which "scared" Lewis. (R. 26.) Lewis reported Dailey's behavior to the manager of the restaurant but, according to Lewis, the manager "didn't do nothing about it." (R. 27.) However, according to Lewis, Dailey later "went outside and scratched [Lewis's] car" (R. 27), and after Lewis reported that incident to the manager, the manager sent both Lewis and Dailey home.

The following day, Lewis returned to work at the restaurant. According to Lewis, when she arrived at the restaurant, she "clocked in" (R. 31), spoke to another employee, and then, as she was "getting ready to turn, [she] was met with grease" thrown from a cup held by Dailey. (R. 33.) According to Lewis, she "didn't do anything" to provoke the alleged assault by Dailey, but, rather, it appeared to Lewis that Dailey "was waiting on [her]." (R. 43.) In fact, Lewis testified, she "didn't even know [Dailey] was there." (R. 49.) Lewis was subsequently transported to a hospital but was released after "five or ten minutes" because "[n]othing happen[ed] to [her] face," i.e., her face "was just normal." (R. 34.) However, Lewis testified that, "next thing you know, about maybe five or six hours, [her] face got about that big. (Indicating.)" (R. 34.) Lewis testified that she then went to a different hospital where she thought she would receive "better treatment." (R. 35.)

Regarding the injuries she suffered as a result of the alleged assault, Lewis testified that she had scars "from the left side of [her] face on down," "down [her] arm," and on her chest. (R. 38.) The State also introduced into evidence photographs that reflect the scars to which Lewis testified. When asked if those scars were "ever going away," Lewis testified: "No." (R. 39.) In addition, when asked "[w]hat other scarring on your body do you have ... that will not go away because of the grease that was thrown on you," Lewis testified:

"The left side of my face is darker. I had to have my skin pulled in wound

care. So this side has less layer of skin than this side. And it bumps up repeatedly in the sun. I can't be in the heat on this –- you know, even if I am, it bumps up really bad on this side."

(R. 40.) Lewis further testified that she has permanently "[l]ost hearing -– a percentage of hearing in [her] left ear because the grease ... was inside [her] ear, and it was burnt in there." (R. 42.) Lewis also testified that the grease "burned [her] where [she] couldn't see out of [her] left eye" and that she now permanently has "trouble [seeing] out of [her] left eye," which, she testified, is "blurry." (R. 42.) On cross-examination, however, Lewis testified that she does not wear a hearing aid or corrective lenses and that she does not have any restrictions on her driver's license requiring her to use corrective lenses when she drives.

Investigator Evan Sweeney of the Enterprise Police Department testified that, as part of his investigation into the alleged assault, he interviewed Dailey on March 14, 2017. The State introduced into evidence a transcript of that interview and questioned Inv. Sweeney regarding Dailey's statements. In the interview, Dailey stated that, when Lewis arrived at the restaurant on March 11, 2017, Lewis "had an attitude" and "call[ed] [Dailey] a bitch under her breath" and that, as a result, she (Dailey) "automatically did throw grease on [Lewis]." (C. 59; R. 68-69.) Dailey also stated that, before throwing grease on Lewis, she had told another employee to "[b]e careful, watch out" because she did not want him to be injured. (C. 62; R. 69-70.)

At the close of the State's case-in-chief, defense counsel moved for a judgment of acquittal. In support of that motion, defense counsel argued:

"[T]here hasn't been proof of disfigurement of the victim, seriously and permanently, or proof of destruction, amputation, or permanent disabling of a member or organ of the victim's body, as required by the language of the statute that applies.

"....

"And ... just generally there hasn't been proof of protracted serious permanent disfigurement, as required by ... the language of the statute.

"And ... there hasn't been sufficient testimony with specificity as to disfigurement."

(R. 81-82.) The trial court denied Dailey's motion.

Dailey testified in her own defense. According to Dailey, she became fearful of Lewis in the weeks leading up to the alleged assault because Lewis, who was undisputedly larger than Dailey, had told Dailey on multiple occasions that she would "beat [Dailey's] ass." (R. 90.) Regarding the alleged assault, Dailey testified that, when Lewis arrived at the restaurant on March 11, 2017, Lewis went to the back of the restaurant where Dailey was working and, with "her fist balled up" (R. 100), "charged at [Dailey]" (R. 96) while saying, "Bitch, I'll fuck you up." (R. 97.) Dailey testified that she was afraid Lewis "was going to bust [her] in the head ... because [Lewis] had stated she would bust [Dailey] in [her] MF head with the hot fry basket a couple of times." (R. 97-98.) Thus, Dailey testified, she threw a cup of grease on Lewis in self-defense. However, Dailey acknowledged on cross-examination that she had not told Inv. Sweeney that Lewis had "charged" her with a "fist balled up" or that Lewis had otherwise threatened her.

As part of its jury charge, the trial court instructed the jury on self-defense, including an instruction on Alabama's stand-your-ground law. See § 13A-2-23(b), Ala. Code 1975 ("A person who is justified ... in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.").

On October 4, 2018, the jury found Dailey guilty of first-degree assault.¹ On February 26, 2019, the trial court sentenced Dailey to 78 months' imprisonment and split the sentence, ordering Dailey to serve 12 months' imprisonment, followed by a 36-month probationary term. Dailey filed a motion for a new trial in which she argued the evidence was insufficient to support her conviction. Specifically, Dailey argued that the evidence was insufficient because, she said, the evidence established that she lawfully used a degree of physical force reasonably necessary to defend herself against what she perceived to be an imminent attack by Lewis. The trial court denied Dailey's motion, and Dailey filed a timely notice of appeal.

Analysis

Dailey argues that the State failed to present sufficient evidence to prove a prima facie case of first-degree assault under § 13A-6-20(a)(2).

" ‘ "In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution." ’ Ballenger v. State, 720 So. 2d 1033, 1034 (Ala. Crim. App. 1998) (quoting Faircloth v. State, 471 So. 2d 485, 488 (Ala. Crim. App. 1984), aff'd, 471 So. 2d 493 (Ala. 1985) ). ‘ "The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt." ’ Nunn v. State, 697 So. 2d 497, 498 (Ala. Crim. App. 1997) (quoting O'Neal v. State, 602 So. 2d 462, 464 (Ala. Crim. App. 1992) ). ‘ "When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision." ’ Farrior v. State, 728 So. 2d 691, 696 (Ala. Crim. App. 1998) (quoting Ward v. State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990) ). ‘The role of 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 [by] the jury.’ Ex parte Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)."

McGlocklin v. State, 910 So. 2d 154, 156 (Ala. Crim....