Downing v. State, CR-92-399

• Decision Date: 07 May 1993
• Docket Number: CR-92-399
• Citation: 620 So.2d 983
• Parties: Herschel E. DOWNING v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 983

620 So.2d 983

Herschel E. DOWNING v. STATE.

CR-92-399.

Court of Criminal Appeals of Alabama.

May 7, 1993.

Elna Reese, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Tracy Daniel, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Herschel E. Downing, was convicted of assault in the second degree, in violation of § 13A-6-21, Code of Alabama 1975, and of attempted rape in the first degree, in violation of § 13A-6-61(a), Code of Alabama 1975, and § 13A-4-2, Code of Alabama 1975. Pursuant to the Habitual Felony Offender Act, he was sentenced to life imprisonment on each count, the sentences to run concurrently with each other and with the sentence he is now serving.

The state's evidence tended to show that on August 6, 1991, the victim ¹ met Downing at a pool hall. Later that evening, Downing followed the victim to a Krystal restaurant, where the victim was meeting a friend who worked there. A short time later, Downing left the Krystal and followed the victim to another friend's house where she had gone to watch a movie. Downing refused to go into the friend's house, so the victim stayed outside and talked to him.

The victim testified that Downing convinced her to ride with him to pick up some of his friends. During the ride Downing told her that he needed to stop by his house trailer, because, he said, he was expecting an important telephone call. After Downing and the victim arrived at the trailer, the victim remained in the car, while Downing supposedly searched for his telephone pager. After several invitations from Downing, the victim went inside the trailer.

Once inside the trailer, the victim asked to use the bathroom. Before the victim reached the bathroom, however, Downing pulled a knife on her. The victim testified that at first she thought Downing was joking, until he said, "Shut up, bitch." The victim then pleaded with Downing to let her leave. Downing's only response was to put his arm around her throat, press the knife into her back, and force her into the bedroom, where he told her to lie face down on the bed. She told him that she needed to use the bathroom. He allowed her to get up, but followed her closely, and stood in the open doorway until she finished. He then took the victim back to the bedroom and told her to take all of her clothes off, except for her bra and panties. The victim testified that the more she pleaded with him to let her go, the more excited he became, and that he began to have an erection. Downing told her to lie on her back on the bed. He then used torn pieces of a bed sheet to tie her arms and legs to the bedposts. Downing then laid the knife on the bed, turned the bedroom light off, and walked to the front of the trailer. The victim was immediately able to break free. She grabbed the knife and fled from the trailer. The victim ran into a tree outside the trailer and dropped the knife. Downing pursued her with another knife in his hand and caught her a short distance from the trailer. The victim fell to the ground and began to scream. Downing pinned the victim to the ground by placing his body on top of her. He then put his hand over her mouth and began to attack her with the knife. The victim grabbed the blade of the knife and struggled with Downing, who was trying to drag her back to the trailer. The victim let go of the knife blade and Downing fell backwards. The victim then ran to a nearby house and the occupants called the police.

I

The appellant first contends that the trial court erred in denying his motion for a judgment of acquittal on the charge of attempted rape in the first degree. He argues that there was no evidence to show that he had the requisite intent to rape the victim. We disagree. Section 13A-6-61, Code of Alabama 1975, states, in pertinent part, that "[a] male commits the crime of rape in the first degree if ... [h]e engages in sexual intercourse with a female by forcible compulsion."

The attempt statute, § 13A-4-2, Code of Alabama 1975, states, in pertinent part:

"(a) A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense."

(Emphasis added.)

The elements of attempted rape in the first degree, under § 13A-6-61(a), Code of Alabama 1975, are as follows: (1) The intent to engage in sexual intercourse with a female by forcible compulsion; (2) an overt act towards the commission of the offense; and (3) the failure to consummate the offense. See, e.g., Young v. State, 453 So.2d 1074 (Ala.Cr.App.1984).

The intent of a defendant at the time of the offense is a jury question. Brooks v. State, 520 So.2d 195 (Ala.Cr.App.1987). This court, in Williams v. State, 445 So.2d 949 (Ala.Cr.App.1983), noted the difficulty of proving a defendant's state of mind at the time of an offense. We stated:

"We fully realize the difficulty of fathoming the mind of defendant to such an extent that it can be determined with absolute certainty that his conduct included an intent by him to engage in sexual intercourse with [the victim] by forcible compulsion, but we think the evidence shows conclusively that she thought that he had that intent and that what she thought prompted her to plead with him and to pay him not to do so. No human being is in a better position to determine whether such intention existed than the alleged victim and her aggressor. Having no testimony from the aggressor as to his intention, the only reasonable conclusion, we think, is that some time during the hassle between the two the man with the gun intended to rape the defenseless woman he had pushed on the bed."

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