Johnson v. State

• Decision Date: 30 September 2011
• Docket Number: CR–10–0476.
• Citation: 82 So.3d 776
• Parties: Steven Todd JOHNSON v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

82 So.3d 776

Steven Todd JOHNSON

v.STATE of Alabama.

CR–10–0476.

Court of Criminal Appeals of Alabama.

Sept. 30, 2011.

Robert Stephen Gargis II, Florence, for appellant.

Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.

WELCH, Presiding Judge.

Steven Todd Johnson was charged with two counts of first-degree theft of a motor vehicle, § 13A–8–3, Ala.Code 1975, and one count of third-degree burglary, § 13A–7–7, Ala.Code 1975, for his involvement in the thefts of a Kawasaki brand “mule” utility vehicle and a four-wheeler. Johnson was also charged with unlawful possession of a controlled substance, § 13A–12–212, Ala.Code 1975. On Johnson's motion, the controlled-substance charge was severed from the remaining charges. Johnson was tried before a jury and was convicted on the theft and burglary charges. The trial court sentenced Johnson, a habitual felony offender, to serve three concurrent 10–year terms of imprisonment, and the court ordered Johnson to pay court costs, attorney fees, restitution, and an assessment to the Alabama Crime Victims Compensation Fund. This appeal follows.

The State's evidence tended to show the following. Jimmy Abernathy testified that he lived approximately one-half mile from Mildred and Alfred Johnson, the defendant's grandparents. On the morning of December 9, 2009, Abernathy discovered that his Kawasaki-brand mule was missing from beneath a lean-to on the back of his garage, and that a go-cart had been moved from beneath the lean-to and was in front of his garage. Abernathy said that his brother, Paul Abernathy, learned of the theft, and he drove around in the area to look for the mule. Abernathy's brother soon found the mule and telephoned Abernathy, and Abernathy went to the location where the mule had been abandoned. When Abernathy's brother arrived, one man was on the mule and another was on a four-wheeler; the two men fled on the four-wheeler, leaving the mule. Abernathy said he and his brother recovered the mule within 20 minutes of discovering that it had been stolen. Finally, Abernathy testified that the mule had been empty when it was stolen, but when it was recovered it held a generator, a bag, and some stereo speakers, none of which belonged to Abernathy. On cross-examination, Abernathy testified that he did not see Johnson on his property, nor did he see Johnson driving the mule.

Adam McCormick testified that on the morning of December 9, 2009, he discovered that his Polaris brand four-wheeler had been stolen from his garage. McCormick stated that he had added special tires, wheels, exhaust, and a winch to the four-wheeler, and a mount for a Global–Positioning System (“GPS”) device. He reported the theft to the sheriff's department on December 9, and investigators contacted him on December 10, when they recovered it. McCormick testified that the investigators verified that the vehicle-identification number on the recovered four-wheeler was the number McCormick had given them to identify his property. He said that the ignition switch had been broken out of the four-wheeler and that the GPS mount had been taken from the gas tank where he had mounted it. McCormick also said the four-wheeler was covered in mud. McCormick said that a bag and a set of speakers had been stolen from his garage, and he identified the bag and stereo speakers recovered from Abernathy's mule as the stolen items. McCormick testified that a window in the garage was open on the day he discovered the theft, and that the window had been closed when he last saw his four-wheeler in the garage. McCormick testified that he did not see Johnson on his property or riding his four-wheeler.

Paul Abernathy, Jimmy's brother, stated that on the morning of December 9, 2009, after his brother discovered that his mule had been stolen, Paul drove around in the area and looked for it. Paul stated that he saw Mitchell Terry driving the mule on a gravel road, and he then saw Johnson on a four-wheeler in front of Terry. Paul examined a photograph of McCormick's four-wheeler and he stated that it looked identical to the one Johnson was riding that day. He said that he was familiar with Johnson and that he knew him because they lived in the same community. He said he knew who Mitchell was because he had seen him in the community also. By the time Paul turned his vehicle around to go back to the location where he had seen the men, he noticed that the engine on the mule had stopped running. Paul asked Terry where he had gotten the mule, and Terry told him that they had borrowed it from a friend two or three days earlier. Paul told Terry that the mule looked like the one stolen from his brother the night before; Paul testified that he knew the mule was his brother's because he recognized the key chain hanging from the ignition. Johnson then came up to where Paul and Terry were standing, and Terry told Johnson what Paul had said. Paul testified that Johnson and Terry “were both still trying to play it off that they borrowed [the mule] from somebody else.” (R. 96.) When Paul turned to go to his truck to telephone his brother and tell him he had found the mule, Terry got on the four-wheeler with Johnson, and Johnson drove rapidly away from the scene. On cross-examination, Paul testified that he did not see Johnson driving the mule.

James Bradley Potts, an investigator with the Lauderdale County Sheriff's Department, testified that on the morning of December 9, 2009, he received information about the thefts of a four-wheeler and a mule. When a deputy informed him that the mule had been recovered and returned to Abernathy, Potts went to Abernathy's residence and spoke with him. He recovered from the bed of the mule a bag and speakers that belonged to McCormick; he recovered several other items from the bed of the mule but was unable to determine who owned them.

Potts testified that Johnson and Terry were suspects in the crimes and that law-enforcement officers discovered Johnson's vehicle at Terry's mother's house. Terry's mother permitted officers to search the house, and both men were found hiding inside that residence.

Charles Brian Pigg testified that Johnson is his stepbrother. He stated that he was staying with his mother on December 9, 2009, and Johnson knocked on the door that morning. When Pigg opened the door, he did not see a car or other vehicle outside. He said that Terry came to the house riding a four-wheeler that, he said, looked like the photograph of McCormick's four-wheeler he was shown at trial. Pigg told Terry that the four-wheeler was nice and asked where he had gotten it. Terry told Pigg that his mother had purchased the four-wheeler for him. Pigg testified that Johnson left with Terry on the four-wheeler.

Lowery Davis testified that he was employed by the Lauderdale County Sheriff's Office but was assigned to duties with the United State's Marshal's Office to pursue fugitives and people with felony warrants. Davis testified that on December 10 or 11, 2009, Investigator Potts told him that he was looking for Terry and Johnson, and Davis said that he located Johnson's vehicle behind Terry's mother's house. During a search of the house, officers found Terry hiding beneath a coffee table and Johnson hiding behind a Christmas tree; both were taken into custody, Davis said.

I.

Johnson argues that his convictions for first-degree theft of property cannot stand because, he says, the State failed to prove the elements of that crime. Specifically, he argues, as he did when he made his motions for a judgment of acquittal at trial, that § 13A–8–3, Ala.Code 1975, requires proof of theft of property with a value in excess of $2,500 or the theft of a motor vehicle of any value and that the State failed to prove either the value of the four-wheeler or the Kawasaki mule, or that the four-wheeler and the Kawasaki brand mule were “motor vehicles” as that term is defined for purposes of the theft statute. Johnson further argues:

“A ‘motor vehicle’ is defined by the Mandatory Liability Insurance Act as ‘Every vehicle that is designed and manufactured to be operated on the streets and highways of Alabama, but not operated upon rails.[’] ALA. CODE § 32–7A–2 (1975) ( emphasis added )[.] According to ALA. CODE § 32–8–2, the Alabama Uniform Certificate of Title and Antitheft Act states that the term ‘motor vehicle’ includes ‘every automobile, motorcycle, mobile trailer, semitrailer, truck, truck tractor, trailer, and other device that is self-propelled or drawn, in, upon, or by which any person or property is or may be transported or drawn upon a public highway.’ ( emphasis added )[.] Also, according to ALA. CODE § 8–20A–1 (1975), Title 8 of Commercial Law and Consumer Protection defines a motor vehicle as a ‘vehicle intended primarily for use and operation on the public highways.’ ( emphasis added )[.]”

(Johnson's brief, at p. 18.)

Johnson concludes that, because neither of the “vehicles” stolen here could be licensed or driven on roadways, neither could truly be considered to be a motor vehicle as defined by the theft statute.

The State contends that the language of the theft statute is clear, so there is no need to resort to analysis of other statutes—as Johnson suggests—and it contends that this Court needs to engage in judicial construction of the statute. The State argues that the plain words of the statute, defining first-degree theft as the taking of a motor vehicle no matter its value, include utility vehicles such as the four-wheeler and the mule in this case. We agree with the State.

First, we construe Johnson's argument to be a challenge to the trial court's ruling on the motions for a judgment of acquittal and a challenge to the sufficiency of the State's evidence. The oft-stated principles governing the review of a challenge to the sufficiency of the evidence are:

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as...