Jones v. State

• Decision Date: 22 January 1993
• Docket Number: CR-91-1053
• Parties: Richard JONES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 129

620 So.2d 129

Richard JONES v. STATE.

CR-91-1053.

Court of Criminal Appeals of Alabama.

Jan. 22, 1993.

Rehearing Denied March 5, 1993.

Certiorari Denied April 30, 1993

Alabama Supreme Court 1920898.

Joel Chandler, Tuscaloosa, for appellant.

James H. Evans, Atty. Gen., and Yvonne Saxon, Asst. Atty. Gen., for appellee.

MONTIEL, Judge.

The appellant, Richard Jones, was convicted of assault in the first degree, in violation of § 13A-6-20, Code of Alabama 1975. He was sentenced to 16 years' imprisonment.

Sharon Pugh, the appellant's ex-wife, testified that in the early morning hours of March 9, 1990, she heard an automobile drive into her driveway. She says she looked out her window and recognized the appellant as the driver of the car. She testified that she began to panic and that she woke James Kelly, the victim, who was asleep in her bedroom. Pugh testified that Kelly walked to the front door and that as Kelly started to open the door, the door "flew open" and she then heard shots.

Kelly testified as follows. When he opened the door, the appellant stated, "Jimbo, it's time for you to go home." (R. 81.) The appellant then aimed the gun he was carrying and fired a shot. This bullet missed Kelly. Kelly testified that he received powder burns on his head and eye as a result of this shot. Kelly fell backwards onto the floor. The appellant then came into the residence and proceeded to fire a second time. Kelly grabbed at the gun and was shot in the arm. Kelly then grabbed the appellant and stood up. They continued to struggle. The appellant fired a third and a fourth shot. The third shot missed Kelly, but the fourth shot struck him in the leg. Kelly fell to the floor and pulled the appellant with him. He got the gun away from the appellant and attempted to fire at the appellant, but the gun did not fire. Kelly then threw the gun down the hall. Kelly was still on the floor when the appellant attacked him again. During this struggle the appellant bit Kelly in the ear. Kelly lost part of his ear as a result. At this point Pugh began to scream that the appellant had a knife. Kelly instructed Pugh to get a chair and hit the appellant. Pugh managed to hit the appellant and get him off of Kelly. The appellant got up, went down the hall, and retrieved his gun. He then went back to the front door. Pugh pushed the appellant out of the door and closed it.

The appellant does not deny shooting the victim but contends he was acting in self-defense and that the gun went off during a struggle.

I

The appellant argues that the trial court erred in denying his motion for a judgment of acquittal at the close of the State's case. He contends that the State did not present a prima facie case because it failed to prove that the victim's gunshot wounds were a "serious physical injury" as that term in defined in § 13A-1-2(9). Specifically, he asserts that the State failed to present evidence that the gunshot wounds were "life-threatening."

Section 13A-6-20, Code of Alabama 1975, provides in pertinent part:

"(a) A person commits the crime of assault in the first degree if:

"(1) With intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument." (Emphasis added.)

The definition of "serious physical injury" is found at § 13A-1-2(9), Code of Alabama 1975, which reads:

"Serious Physical Injury. Physical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ."

(Emphasis added.)

When reviewing the evidence in the light most favorable to the State, as we must do, Jackson v. State, 516 So.2d 726 (Ala.Crim.App.1985), we find that the State did present sufficient evidence that the gunshot wounds were a serious physical injury as that term is defined in § 13A-1-2(9).

Kelly testified that he was hospitalized a total of 21 days as a result of his injuries. According to his testimony, he was hospitalized initially for the treatment of gunshot wounds and then again in April for blood clots. He testified that a bullet remains lodged in his arm.

Dr. Lucy King, an orthopedic surgeon, testified that she treated Kelly. The appellant cites a portion of her testimony in support of his position that the gunshot wounds did not constitute a serious physical injury. The appellant quotes Dr. King's testimony where she stated that she decided not to remove the bullet from Kelly's arm because there was no sign of nerve or blood vessel damage or of severe hemorrhaging. The appellant states that Dr. King also testified to treating Kelly's broken leg. He contends that neither of these injuries could be considered life threatening. The appellant omits, however, an important portion of Dr. King's testimony. Dr. King testified to the procedure that had to be used to treat Kelly. She stated that once he was stabilized she had to make "sure that he had no other significant life threatening injuries." (R-17.) She indicated that he had an entrance wound in the "upper portion of his thigh and by X-ray you could see fragments of the bullet toward the bone." (R-16.) The bullet had apparently fragmented after striking the bone. She also testified Kelly had suffered a fracture of the thighbone just above the knee. Kelly had to undergo surgery to stabilize the fractured bone. The surgery consisted of pulling three fractures together by a fixation device. Dr. King described this device as being approximately 1 1/2"' wide and slightly over one foot long. It was attached to Kelly's thighbone and extends from just above his knee to just below his hip. Dr. King indicated that it took approximately 14 screws to hold this device in place. She testified that the fixation device has not been removed and may have to remain attached to Kelly's thighbone permanently. Dr. King testified that Kelly was in the hospital for 11 days and that she she continued to treat him until August 21, 1990.

Dr. Robert Pieroni also testified for the State. He treated the victim for blood clots. According to Dr. Pieroni, the blood clots developed from inactivity and they were life threatening. The appellant contends that because the indictment charged him with assault in the first degree by means of a gun, he can be convicted only if the serious physical injuries were caused by the gun, not inactivity.

As he did with Dr. King's testimony, the appellant focuses on only a portion of Dr. Pieroni's testimony. Dr. Pieroni first saw Kelly on April 1, 1990, when he was admitted to the hospital. He remained in the hospital on this occasion for 10 days. At this time Kelly was having difficulty breathing. Kelly thought that he might have developed a blood clot in his lower extremities that had travelled to his lungs. Dr. Pieroni testified that when he evaluated Kelly, he found that he had blood clots in both lungs. Dr. Pieroni testified that in his opinion this condition was life threatening. Dr. Pieroni...