Evans v. State

• Decision Date: 29 September 2000
• Citation: 794 So.2d 415
• Parties: Aaron EVANS v. STATE.
• Court: Alabama Court of Criminal Appeals

794 So.2d 415

Aaron EVANS v. STATE.

CR-98-0678.

Court of Criminal Appeals of Alabama.

September 29, 2000.

Rehearing Denied November 27, 2000.

J.L. Chestnut and Collins Pettaway, Jr., Selma, for appellant.

Bill Pryor, atty. gen.; and Rosa Davis and Hense R. Ellis II, asst. attys. gen., for appellee.

On Remand from the Alabama Supreme Court

FRY, Judge.

The appellant, Aaron Evans, was convicted of one count of second-degree criminal possession of a forged instrument, a violation of § 13A-9-6, Ala.Code 1975; seven counts of illegal absentee voting, violations of § 17-10-17, Ala.Code 1975; and seven counts of second-degree forgery, violations of § 13A-9-3, Ala.Code 1975.¹ For the second-degree possession-of-a-forged-instrument conviction, Evans was sentenced to 10 years' imprisonment. That sentence was split, and he was ordered to serve two years' imprisonment, followed by five years' probation. For each of the illegal absentee-voting convictions, he was sentenced to two years' imprisonment. Additionally, for each of the second-degree forgery convictions, he was sentenced to 10 years' imprisonment. These 10-year sentences were split, and for each conviction he was ordered to serve two years' imprisonment, followed by five years' probation. All of the sentences are to run concurrently.

On September 17, 1999, this Court reversed Evans's convictions based on the trial court's granting a challenge for cause that was not authorized by § 12-16-150, Ala.Code 1975. Evans v. State, 794 So.2d 405 (Ala.Crim.App.1999). The Alabama Supreme Court, however, in Evans v. State, 794 So.2d 411 (Ala.2000), reversed this Court's judgment and remanded the case to this Court to address the remaining issues.

I.

Evans contends that the state failed to establish a prima facie case of the seven counts of second-degree forgery and of illegal absentee voting. (Part IX of Evans's brief to this Court at p. 11.) Specifically, he argues that the evidence to support the forgery convictions was insufficient because, he claims, the absentee ballot manager was not a "public employee" as that term is defined at § 36-25-1(9), Ala.Code 1975. Additionally, he argues that the evidence to support the illegal-absentee-voting convictions was insufficient because, he claims, there was no evidence that the allegedly illegal absentee votes were cast or counted.

Section 13A-9-3, Ala.Code 1975, states, in pertinent part:

"(a) A person commits the crime of forgery in the second degree if, with intent to defraud, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:

". . . .

"(2) A public record, or an instrument filed or required or authorized by law to be filed in a public office or with a public employee."

Section 17-10-17, Ala.Code 1975, states, in pertinent part:

"(a) Any person who willfully changes an absentee voter's ballot to the extent that it does not reflect the voter's true ballot, any person who willfully votes more than once by absentee in the same election, any person who willfully votes for another voter or falsifies absentee ballot applications or verification documents so as to vote absentee, or any person who solicits, encourages, urges, or otherwise promotes illegal absentee voting, upon conviction, shall be punished by imprisonment in the penitentiary for not less than one nor more than two years, or by a fine of not less than $500.00 nor more than $2,000.00, or by being both fined and imprisoned. Any person who willfully aids any person unlawfully to vote an absentee ballot, any person who knowingly and unlawfully votes an absentee ballot, and any voter who votes both an absentee and a regular ballot at any election shall be similarly punished.

". . . .

"(c) Nothing in this section shall be construed to impede or inhibit organized legal efforts to encourage voter participation in the election process or to discourage a candidate from encouraging electors to lawfully vote by absentee ballot."

In McElroy v. State, 571 So.2d 353 (Ala. Crim.App.1990), this Court stated:

"It is not the province of this court to reweigh the evidence. Walker v. State, 416 So.2d 1083 (Ala.Cr.App.1982). As a rule, this court will uphold the jury's verdict and the trial judge's decision unless they were palpably contrary to the great weight of the evidence and manifestly wrong. Raines v. State, 428 So.2d 206 (Ala.Cr.App.1983)."

571 So.2d at 356.

Additionally, in Bozeman v. State, 401 So.2d 167 (Ala.Crim.App.1981), this Court stated:

"On review, this Court is to consider the evidence in the light most favorable to the prosecution. McCord v. State, 373 So.2d 1242 (Ala.Cr.App.1979); Coleman v. State, 37 Ala.App. 406, 69 So.2d 481 (1954). This court must take the evidence favorable to the prosecution as true, and accord to the State all legitimate inferences therefrom. Johnson v. State, 378 So.2d 1173 (Ala.1979). Circumstantial evidence must be accorded the same weight as direct evidence when it points to the accused as the guilty party. Locke v. State, 338 So.2d 488 (Ala.Cr.App.1976). The truthfulness of the testimony was for the triers of fact. May v. State, 335 So.2d 242 (Ala.Cr.App. 1976)."

401 So.2d at 171.

"`The weight and probative value to be given to the evidence, the credibility of the witnesses, the resolution of conflicting testimony, and inferences to be drawn from the evidence are for the jury.... A defendant's guilt may be established by circumstantial evidence as well as by direct evidence.'" Robinson v. State, 728 So.2d 650, 654 (Ala.Crim.App. 1997), quoting Smith v. State, 698 So.2d 189, 214 (Ala.Crim.App.1996).

The record indicates that, in February 1995, a special election was held to elect certain city council members for the City of Greensboro. Carol Townsend, the city clerk, testified that the council appointed her to serve as election manager and as absentee election manager. Townsend stated that, as an absentee election manager, she received applications for absentee ballots, checked each absentee voter's name off a poll list of eligible voters, and mailed out documents necessary to vote by absentee ballot. Testimony indicated that the documents that Townsend sent to the absentee voter were a ballot, an envelope for the marked ballot, and an affidavit envelope.

The record indicates that the following procedure was implemented to vote by absentee ballot. After the absentee voter marked his or her ballot, he placed it in the ballot envelope, which he then sealed. The voter then placed the sealed ballot envelope in the affidavit envelope and sealed that envelope. On one side of the affidavit envelope is an affidavit for the voter to fill out and sign. On the other side of the affidavit envelope is a place for the voter's return address.

Townsend testified that a person voting by absentee ballot may either mail or hand deliver the sealed affidavit envelope containing the voting materials to the absentee election manager's office. Townsend stated that the usual procedure is for the absentee election manager to take the envelopes to the polls on election day and give the sealed envelopes containing the votes to the poll officials.

Townsend stated that approximately a month before the election, someone burglarized her office and stole election supplies, including blank applications for absentee ballots, blank absentee ballots, and blank affidavit envelopes. Additionally, Townsend testified that, a few weeks before the election, Evans came by her office and picked up several absentee ballot application forms.

According to Townsend, approximately three weeks before the election, she noticed that several absentee applications appeared to be written in the same handwriting and that a few applications appeared to list incorrect addresses. Townsend testified that she informed the district attorney of the perceived problem. (R. 194.) Townsend stated that she checked the voter registration cards against the questioned signatures. Additionally, Townsend stated that she sent letters to 81 applicants, informing them that the signatures on their absentee ballot applications did not match the signatures on their voter registration cards, and instructing them to come to her office in person if they needed an absentee ballot. According to Townsend, of the 81 voters, 49 did not respond. Townsend stated that she challenged 17 of the ballots at the polls on election day.

Because Evans was convicted of numerous counts, we will analyze the sufficiency-of-the-evidence issue as it applies to each victim. Additionally, we note that, although the indictment charged multiple counts of illegal absentee voting with regard to each victim, the trial court consolidated those counts into one offense against each victim.

A. Rosia Gray

Evans was found guilty of illegal absentee voting regarding the absentee ballot application of Rosia Gray (Counts 1, 2, 3) and criminal possession of a forged instrument, namely Rosia's absentee ballot application (Count 5).

Sharon Gray, Rosia's daughter, testified that in February 1995, Evans brought a few absentee ballot applications to her mother's house. Sharon stated that Rosia was present in the house while Evans visited. According to Sharon, because Rosia was not feeling well, Rosia gave Sharon permission to sign Rosia's absentee ballot application. Additionally, Rosia testified that, because she was recovering from a recent childbirth, she gave Sharon permission to sign the absentee ballot application. Sharon testified that Evans told her that, because her mother was not feeling well and because her mother gave her permission, it was acceptable for her to sign her mother's application. Additionally, Rosia testified that she recognized the handwriting on her absentee ballot application as Sharon's handwriting. Rosia stated that she did not give anyone permission to write down her date of birth on the application, but that...