Matthews v. State
Decision Date | 09 September 1994 |
Docket Number | CR-92-1838 |
Parties | Gary Owen MATTHEWS v. STATE. |
Court | Alabama Court of Criminal Appeals |
William F. Mathews, Pelham, for appellant.
James H. Evans, Atty. Gen., and Shawn Junkins, Asst. Atty. Gen., for appellee.
The appellant, Gary Owen Matthews, was convicted of attempted rape 1 and of kidnapping. See § 13A-6-61, § 13A-4-2, and § 13A-6-43, Code of Alabama 1975. He was sentenced to 20 years' imprisonment on the attempted rape conviction and to 50 years' imprisonment on the kidnapping conviction, these sentences to be served concurrently.
This case was originally submitted to this court on December 29, 1993. The submission was set aside when the appellant filed a post-conviction petition under Rule 32, Ala.R.Crim.P. Action on the appeal was stayed until the trial court ruled on the petition. The cause was resubmitted to this court on June 16, 1994. The current appeal is from both the appellant's convictions for attempted rape and kidnapping and the denial of his Rule 32 petition.
The state's evidence tended to show the following. M.S.C. 2 was a college student who was working as a student intern at an elementary school in Helena, Alabama. M.S.C. testified that on January 24, 1992, at approximately 7:00 a.m. she was in front of her parents' house standing by her car when the appellant drove up in a car. He told her that he had seen her at the school and that he wanted them to spend the day together. She refused and went inside the house. A few days later, on January 27, 1992, she went home from school early in the morning to replace her contacts with her glasses. The appellant was standing behind her car as she left the house. He approached her, grabbed her, and dragged her across two neighbors' yards to a wooded area. The appellant then removed M.S.C.'s shirt and bra, sat on top of her, knocked her glasses off, and tried unsuccessfully to tie her hands and neck with a wire cable. He then removed the rest of her clothes and inserted his penis in her vagina. M.S.C. testified that he was having some difficulty penetrating her because she was struggling to get away. She said that the appellant then picked up a stick and stuck it in her vagina and told her that if she didn't cooperate "he would pull it through [her] mouth." The appellant then started calling her names. M.S.C. managed to get away and run to a nearby police station.
The appellant initially contends that the state failed to meet its burden of proof and that, therefore, the court erred in denying his motion for a judgment of acquittal. Specifically, he contends that "each and every evidentiary fact presented to the jury relating to both offenses charged was refuted by overwhelming evidence."
The appellant's argument concerns the weight of the evidence presented. The weight to be accorded the evidence is within the exclusive province of the jury.
Saffold v. State, 627 So.2d 1107, 1109 (Ala.Cr.App.1993). See also Cunningham v. State, 630 So.2d 154 (Ala.Cr.App.1993).
As this court stated in O'Barr v. State, 639 So.2d 533, 535 (Ala.Cr.App.1993):
There was sufficient evidence of both kidnapping and attempted rape to present the case to the jury for their determination. The court did not err in denying appellant's motion for a judgment of acquittal.
The appellant next contends that the court erred in denying his motion for a mistrial when during opening statements the prosecution made the following comment:
When defense counsel requested a motion for a mistrial, the following occurred:
Initially, we note that the granting of a motion for a mistrial is an "extreme measure." Bowers v. State, 629 So.2d 793 (Ala.Cr.App.1993).
Here, the victim's husband testified concerning the substance of the remark made by the prosecution in opening statements. His testimony before the jury was that the event happened as...
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