Lewis v. State, 4 Div. 165
| Decision Date | 13 November 1984 |
| Docket Number | 4 Div. 165 |
| Citation | 461 So.2d 12 |
| Parties | Jimmy LEWIS, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
This case is on remand from the Supreme Court of Alabama, 461 So.2d 9, with instructions for this court to determine whether the State proved venue by circumstantial evidence. We answer in the affirmative.
Appellant Jimmy Lewis, alias Paul Stewart, was convicted of first degree rape on March 22, 1983, by a Houston County jury. Appellant was subsequently sentenced to life imprisonment. On the original submission of this cause, we reversed and remanded due to our finding that the State failed to offer any evidence as to the material element of venue. The Alabama Supreme Court granted certiorari and reversed this court's judgment and remanded with instructions to determine if there was sufficient circumstantial evidence from which the jury could infer proper venue.
Appellant was convicted for the rape of Tamecia McCray, which occurred in September of 1983. Tamecia was five years old on the date of the alleged rape. Appellant was nineteen years old and he is Tamecia's uncle, on her father's side.
On the date in question, Tamecia had been visiting with her father, Charles Stewart, and accompanied him to the peanut field where he was employed at the time. These fields were located in Houston County and belonged to a Mr. Stringfellow. Appellant was also in the fields that day and had volunteered to go to the store for soft drinks. Tamecia asked her father if she could accompany appellant, and permission was granted. The record indicates that appellant and Tamecia first went to McCord's Bait and Tackle shop, located about one and one-half miles from the fields, in Houston County. Mr. McCord, owner of the bait shop, testified that Tamecia and appellant had patronized his shop and had been there approximately "five or six, maybe seven minutes" that day.
Tamecia testified that on the way back to the fields appellant stopped the car, both got out; appellant took Tamecia's clothes off; put her on the hood of the car; then appellant engaged in sexual intercourse with the five-year-old child. Appellant told Tamecia not to say anything to anybody about what had happened. Tamecia and appellant returned to the fields approximately fifteen minutes after they departed and Tamecia testified they took the same route back that they had taken originally.
It was not until mid-October that Tamecia told her mother what her uncle had done while she had been visiting her father. Mrs. McCray took Tamecia to the hospital; it was determined that her hymen had been ruptured, and tests for Neisseria Gonorrhea proved positive. Subsequent tests done on appellant produced a positive test result for the same type gonorrhea.
Appellant contends that there is no evidence as to the location of the incident from anyone who had any personal knowledge of the facts, nor was there evidence describing a location with sufficient particularities as to make it distinguishable from any other area. It is apparently appellant's contention that because the locus of the events in question was at or near the Henry County line, venue was not sufficiently established in Houston County.
We have thoroughly reviewed the record and initially note that there is no evidence that the events took place outside of Houston County. Tamecia testified that she and appellant traveled the same road to and from the bait shop. Tamecia, being six years old at the time of trial, was not cognizant of county boundary lines and could not be expected to know where such incorporeal boundaries lay. John McCord testified that the Stringfellow property, upon which the peanut fields were located, was approximately one and one-half miles from his bait shop. He testified that his shop and the peanut fields were both located in Houston County. Mr. McCord also stated on cross-examination that the Henry County line was either a mile and one-half or four miles, depending upon which direction one takes, from his bait shop. Charles Stewart testified that the bait shop and the peanut fields were both located in Houston County and the tendency of the evidence is that the Stringfellow property is located north of the bait shop.
We are told that the county line is either one and one-half or four miles from the bait shop, but we are not told in which direction one must go. We are told that the peanut fields are in Houston County, approximately one and one-half miles north of the bait shop, but we are not told where the county line is located in relation to the peanut fields. On appellant's motion to exclude the State's evidence, counsel for appella...
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