Gunter v. State, CR-93-1878

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: TAYLOR
• Citation: 665 So.2d 1008
• Parties: Martin Anthony GUNTER v. STATE.
• Docket Number: CR-93-1878
• Decision Date: 24 March 1995

Page 1008

665 So.2d 1008 Martin Anthony GUNTER
v.
STATE. CR-93-1878. Court of Criminal Appeals of Alabama. March 24, 1995.
Rehearing Denied May 5, 1995.
Certiorari Denied June 30, 1995
Alabama Supreme Court 1941219.

Page 1009

Bryant F. Williams, Jr., Ozark, for appellant.

Jeff Sessions, Atty. Gen., and Gregory O. Griffin, Sr., Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Martin Anthony Gunter, was convicted of sexual torture, a violation of § 13A-6-65.1, Code of Alabama 1975, and of sexual misconduct, a violation of § 13A-6-65, Code of Alabama 1975. The jury acquitted him on the charges of rape in the first degree, sodomy in the first degree, and a separate count of sexual torture. He was sentenced to 10 years' imprisonment on his conviction for sexual torture, and that sentence was split so that he was to serve three years in the penitentiary and was placed on probation for the remainder of the sentence. In addition, he was sentenced to six months in jail on his conviction for sexual misconduct and that sentence was to be served concurrently with his sentence for sexual torture.

The state's evidence tended to show that on August 25, 1993, the appellant sexually tortured M.M. by penetrating her vagina with the barrel of a .410 shotgun.

M.M. testified that during the afternoon of August 25, 1993 she talked with her friend, Becky Grider, about going out that night. Later that evening, M.M., Grider, and James Morrill went to the appellant's trailer. The appellant's roommate, Steve Stafford, was the only one at the trailer. M.M. testified that Stafford left the trailer to meet the appellant at a bar called the Brass Rail. M.M. testified that she, Grider, and Morrill watched television at the trailer for approximately one and one-half hours while Stafford was away. M.M. testified that Stafford and

Page 1010

the appellant returned at approximately 9:00 p.m. At that time, the group began drinking beer and playing a drinking game called "quarters" at the kitchen table. M.M. testified that they played for approximately 45 minutes, and that everyone then left except her and the appellant. M.M. decided to wait at the trailer for Grider who said that she would return shortly.

M.M. testified that after everyone left the appellant started talking about having sex with her and was telling her that she should break up with her boyfriend. She told him that she would not. He then asked her what she would do if he just picked her up and carried her to his room to have sex with him. Again, M.M. said that she was not interested in having sex with him. M.M. testified that she starting getting scared at that point. She said that she went into the bathroom and then came back out. She said that she was standing near the appellant's bedroom door and that he started talking about having sex again.

M.M. testified that the appellant pulled her clothes off and pushed her onto his bed. She said that she was crying and telling him to stop, and that he hit her in the face with his fist. She testified that she tried to scream, but that the appellant threatened to kill her if she was not quiet. He pointed a shotgun at her and told her he wanted to have sex with her. She testified that at one point he jumped up and looked out the doorway to the bedroom, but kept the shotgun pointed at her. Although M.M. appeared to have difficulty remembering the exact order of events, she testified that several events occurred. She said that the appellant tried to have sex with her, but that he was unable to because he could not maintain an erection. She also said that the appellant at some point inserted the tip of the shotgun and the tip of a broom handle in her vagina. She further testified that he later performed oral sex on her and tried to have sex with her again, but that she prevented him from doing so. M.M. further testified that at times the appellant would stop and apologize to her and talk about killing himself.

M.M. and the appellant heard an automobile approaching. M.M. testified that the appellant would not give her clothes to her, but that instead he gave her some shorts and a T-shirt to wear. Grider came in and agreed to take her home. While Grider was driving her home, M.M. told Grider what had happened. When they arrived at M.M.'s house, M.M.'s friend Terrance Mann, was waiting outside. She said that she did not want to talk to him and that she went inside to go to bed. Mann remained outside and started honking his car horn. M.M. called the police to get him to stop. When the police came, M.M. told them about the events that she alleged had occurred at the appellant's trailer earlier that evening. She then went to Lyster Army Hospital for a physical examination, photographs, and "rape kit" or "sexual assault kit" examination.

William H. Landrum, a forensic serologist with the Alabama Department of Forensic Sciences, examined the shotgun and the broom handle taken from the appellant's trailer. He testified that the tips of both contained vaginal epithelium cells, which, in his opinion, resulted from vaginal contact.

The trial court allowed the appellant to present two witnesses to testify about prior sexual contact between the appellant and M.M. The court allowed this testimony after an in camera offer of proof by the appellant pursuant to the exception in § 12-21-203(c), Code of Alabama 1975. Section 12-21-203 is commonly known as the "rape shield statute." The appellant, Robert Donald, and Brian Etheridge testified about a party they had attended with M.M. in March 1993 at which M.M. was present. They testified that they had all spent the day at the river with a group of other people. At dark, the party moved to the Steve Stafford's trailer (where the appellant lived at the time of the crime). The appellant and Donald testified that M.M. removed her entire bathing suit and walked around naked for about one and one-half hours. Also, they both testified that she allowed several of the men at the party, including the appellant, to touch her breasts and to touch her between her legs. Etheridge testified that while he was at Stafford's trailer M.M. had removed the top of her two-piece bathing suit and that he saw several people, including the appellant, touch her.

Page 1011

However, he testified that he left early and did not ever see M.M. completely naked. All three testified that she did not resist any of the contact.

The appellant raises four issues on appeal.

I

The appellant first contends that the trial court erred in denying his motion for a judgment of acquittal. More specifically, he contends that the state could not have proved a prima facie case because the jury acquitted him on other counts of the indictment similar to the ones on which it convicted him.

"In determining whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, we must accept as true the evidence introduced by the state, accord the state all legitimate inferences therefrom, and view the evidence in the light most favorable to the prosecution. McMillian v. State, 594 So.2d 1253 (Ala.Cr.App.1991); Faircloth v. State, 471 So.2d 485 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala.1985); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979)."

Underwood v. State, 646 So.2d 692, 695 (Ala.Cr.App.1993).

The appellant was charged in a four-count indictment with rape in the first degree, sodomy in the first degree, and two counts of sexual torture (one for use of the broom handle and one for use of the shotgun). He was acquitted on the charges of rape in the first degree, sodomy in the first degree, and one count of sexual torture (use of the broom handle). He contends that because he was acquitted on these charges, the state could not have proven the element of forcible compulsion present in the crime of sexual torture. In other words, he argues that the verdicts are inconsistent.

In United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), the United States Supreme Court upheld the rule enunciated in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), "that a criminal defendant convicted by a jury on one count could not attack that conviction because it was...