Johnson v. State

• Decision Date: 02 November 2007
• Docket Number: CR-06-1357.
• Citation: 994 So.2d 950
• Parties: Bruce Lavel JOHNSON v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

994 So.2d 950

Bruce Lavel JOHNSON v. STATE of Alabama.

CR-06-1357.

Court of Criminal Appeals of Alabama.

November 2, 2007.

Leonard F. Mikul, Bay Minette, for appellant.

Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.

BASCHAB, Presiding Judge.

The appellant, Bruce Lavel Johnson, was convicted of one count of transferring his legal residence without first submitting proper notice of his intent to move, in violation of the Community Notification Act¹ ("the CNA"), a violation of § 15-20-23(a), Ala.Code 1975; one count of establishing a residence within 2,000 feet of a school or child care facility, in violation of the CNA, a violation of § 15-20-26(a), Ala. Code 1975; and one count of establishing a residence or other living accommodation where a minor resided, in violation of the CNA, a violation of § 15-20-26(c), Ala. Code 1975. The trial court sentenced him, as a habitual offender, to serve concurrent terms of twelve years in prison on each count. See § 13A-5-9(b), Ala.Code 1975. The appellant filed post-trial motions, which the trial court summarily denied. This appeal followed.

The State presented evidence that, in 1991, the appellant pled guilty to first-degree sexual abuse; that the victim in that case was the appellant's ten-year-old niece; and that the appellant was required to register as a sex offender pursuant to the CNA. The State also presented evidence that sex offenders were required to register twice a year; that sex offenders cannot live within 2,000 feet of a school or child care facility; and that, before a sex offender can move, he must file notice of his intent to move with the appropriate law enforcement agency thirty days before he moves and have the new address approved. The State further presented evidence that the appellant had the address at 543 Era Drive approved in 1998 and that, on May 24, 2005, the appellant had filed a registration form that listed his address as 543 Era Drive. Craig Sawyer of the Fairhope Police Department testified that he had worked in the sex offender unit; that, in November 2005, the Baldwin County Sheriff's Department notified him that the appellant was no longer residing at his registered address on Era Drive; that he checked the appellant's records to determine whether he was supposed to be living on Era Drive; that the registration forms he had indicated that the appellant was registered on Era Drive; and that he also checked the Department of Public Safety's website, and it showed that the appellant was registered on Era Drive. He also testified that he went to the address on Era Drive, and he did not find a house marked as 543 Era Drive; that some of the houses on Era Drive had street numbers marked, but others did not; that none of the houses that had the street number marked were 543 Era Drive; and that the houses that did not have the street numbers marked were in a condition of disrepair, did not appear to be inhabited, and looked as if they had not been inhabited for some time.

Sawyer testified that he received information that indicated that the appellant had a new address on Mary's Lane; that he went to the address on Mary's Lane and knocked on the door; that the appellant answered the door; that he told the appellant he was there following up on the change of address; and that he asked the appellant where he was currently residing. He also testified that the appellant told him that he was living at the house on Mary's Lane; that he had moved to Mary's Lane in 2004 after Hurricane Ivan had damaged the house on Era Drive and made it uninhabitable; and that he had been living at Mary's Lane for the past year or more.

Sawyer testified that, when the appellant opened the door at the house on Mary's Lane, he could see inside; that he saw a female and at least two children sitting at a table eating a meal; that he saw toys, clothing, and other things on the living room floor; and that it appeared that the appellant, the female, and the children all lived at the house. Finally, he testified that the appellant's address on Mary's Lane was less than 2,000 feet from the Blessed Children Daycare and the Marietta Johnson Organic School.

I.

The appellant argues that the State did not present sufficient evidence to support his conviction for transferring his legal residence without first submitting proper notice of intent in violation of the CNA. (Issue I in the appellant's brief.) Specifically, he contends that

"there is no indication that [he] changed his residence after competing the Form 47 in May, 2005. The facts clearly indicate that [he] made a false statement on the Form 47, when he declared on May 24, 2005, that he resided at 543 Era Drive. ... There is no evidence showing the [he] transferred his legal residence after first submitting the Form 47 on May 24, 2005."

(Appellant's brief at pp. 11-12.) However, he did not present this specific claim in his motion for a judgment of acquittal at the close of the State's evidence. "A specific ground for a motion for a judgment of acquittal waives all other grounds not specified. McElroy v. State, 611 So.2d 431 (Ala.Cr.App.1992); Curry v. State, 601 So.2d 157 (Ala.Cr.App.1992)." Henderson v. State, 715 So.2d 863, 866 (Ala.Crim.App. 1997). Further, the appellant did not raise this specific argument in his post-trial motions. Therefore, it is not properly before this court.

II.

The appellant also argues that the State did not present sufficient evidence to support his conviction for establishing a residence or other living accommodation where a minor resided in violation of the CNA. (Issue III in the appellant's brief.) Specifically, he contends that the State did not prove that a minor actually resided in the residence.

"No adult criminal sex offender shall establish a residence or any other living accommodation where a minor resides. Notwithstanding the foregoing, an adult criminal sex offender may reside with a minor if the adult criminal sex offender is the parent, grandparent, or stepparent of the minor, unless one of the following conditions applies:

"....

"(4) The adult criminal sex offender has ever been convicted of any criminal sex offense involving a child, regardless of whether the offender was related to or shared a residence with the child victim."

§ 15-20-26(c), Ala.Code 1975.

"In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state's evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala. Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court's denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr. App.1978). In applying this standard, the appellate 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.Cr.App. 1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State."

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993).

"`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.Cr.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala.1985).

"`...

"`"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 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)].

"... `Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.' White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). `Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.' Cochran v. State, 500 So.2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala. 1985)."

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

"`[c]ircumstantial evidence is not inferior evidence, and it will be given the same weight as direct...