Mcmillian v. State
Decision Date | 16 July 2010 |
Docket Number | CR–08–1418. |
Citation | 67 A.L.R.6th 651,58 So.3d 849 |
Parties | Oscar Levell McMILLIANv.STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
OPINION TEXT STARTS HERE
Alabama Supreme Court 1091481.
Donald M. Briskman and Josh Briskman, Mobile (withdrew 5/18/2010); Robert Briggs Watson McLaughlin, Mobile (withdrew 5/26/2010); and Glenn L. Davidson, Mobile, for appellant.Troy King, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.WELCH, Judge.
Oscar Levell McMillian was convicted of first-degree domestic violence, a violation of § 13A–6–130, Ala.Code 1975. The trial court sentenced McMillian, as a habitual felony offender, to life in prison. No post-trial motions were filed. This appeal followed.
On September 21, 2007, Lakeysha Addison got off work from her job at a steam plant and went home to get McMillian, her boyfriend, to go shopping. McMillian had been telephoning Addison at work repeatedly, and Addison was told to inform McMillian to stop calling.
McMillian and Addison were in the car driving to the store, and Addison was driving. They began to argue about Addison's cellular telephone, and McMillian accused Addison of seeing another man. Addison testified that she was sitting in the driver's seat when McMillian put her vehicle in park at a stoplight, leaned across the vehicle, and bit her left eye out of the socket.
Addison lost consciousness; when she woke up, she was in the passenger seat and McMillian was in the driver's seat driving. Addison got out of the car as it was moving and ran to a neighbor's house and alerted the police. Police arrived, and Addison gave them information regarding her vehicle. Two to three days later, Addison's vehicle was found in Satsuma. Police were unable to locate McMillian, and an arrest warrant was entered in the National Criminal Information Center's database. In April 2008, McMillian was located in Oregon and was extradited to Alabama.
Several surgeries were performed on Addison's eye; however, she is now blind in her left eye. Dr. Mark Brown treated Addison on the date of her injury and testified at trial that the injury which Addison received was consistent with a bite-type action. (R. 142.) However, Dr. Brown testified that when he treated her there were no bite marks on Addison's face.
McMillian argues on appeal that the trial court erred in denying his motion for a judgment of acquittal. Specifically, McMillian argues that the State did not present sufficient evidence to convict him of first-degree domestic violence because, he says, the State did not present sufficient evidence that a “deadly weapon” or a “dangerous instrument” was used in the commission of the offense. McMillian bases this contention on the holding of the Alabama Supreme Court in Ex parte Cobb, 703 So.2d 871 (Ala.1996). 1
This Court has held:
Williams v. State, 10 So.3d 1083, 1086 (Ala.Crim.App.2008).
To convict a defendant of the offense of first-degree domestic violence, the prosecution must prove the following: that a person “[1] with the intent to cause serious physical injury to another person ... [2] causes serious physical injury to any person [3] by means of a deadly weapon or a dangerous instrument,” § 13A–6–20, Ala.Code 1975, and “[4] the victim is a current or former spouse ... or a person who has or had a dating or engagement relationship with the defendant.” § 13A–6–130, Ala.Code 1975.
Section 13A–1–2(5), (7), Ala.Code 1975, defines “dangerous instrument” and “deadly weapon” as follows:
“....
McMillian argues that there are no circumstances under which teeth can become a deadly weapon based on the holding of the Alabama Supreme Court in Ex parte Cobb, 703 So.2d 871, 877 (Ala.1996):
“In Brock v. State, 555 So.2d 285, 287 (Ala.Crim.App.1989), the Court of Criminal Appeals quoted an annotation as stating that the view that fists can be considered deadly weapons or dangerous instruments is a minority view. Annot., Parts of the Human Body as Dangerous Weapons, 8 A.L.R.4th 1268 (1981). Our research indicates that the better-reasoned cases do not allow body parts, without more, to be considered deadly weapons or dangerous instruments.
“Further evidence that the legislature did not intend for fists to be considered deadly weapons or dangerous instruments is the fact that a person can be convicted for second-degree assault for intentionally inflicting serious physical injury on another person. Ala.Code 1975, § 13A–6–21(a)(1). This section does not mention the use of a deadly weapon or dangerous instrument; instead, it simply requires ‘serious physical injury.’ However, § 13A–6–20(a)(1) provides that a person who causes serious physical injury to any person by means of a deadly weapon or dangerous instrument commits assault in the first degree. If the legislature intended fists to be considered as deadly weapons or dangerous instruments, then there would be no objective basis for distinguishing a first-degree assault under § 13A–6–20(a)(1) from a second-degree assault under § 13A–6–21(a)(1). If fists may be dangerous instruments, there is no basis for determining whether an offense constitutes a first- or second-degree assault. If the elevation in seriousness is made to depend upon the use of an implement apart from the assailant's own body, then there is a rational basis for this elevation and fair notice to an assailant that the use of a weapon or injurious implement will increase the seriousness of his crime.
“ ‘In enacting a criminal statute, there is an obligation on the State to so frame it that those who are to administer it and those to whom it is to be administered may know what standard of conduct is intended to be required and legislation may run afoul of the due process clause because of a failure to set up any sufficient guidance to those who would be law-abiding, or to advise a defendant of the nature and cause of an accusation he is called on to answer, or to guide the courts in the law's enforcement.’
“ Kahalley v. State, 254 Ala. 482, 483, 48 So.2d 794, 795 (1950). See also Esco v. State, 278 Ala. 641, 179 So.2d 766 (1965); State v. Gooden, 570 So.2d 865 (Ala.Crim.App.1990).
“We hold that the use of fists or other body parts cannot constitute the use of a ‘deadly weapon’ or ‘dangerous instrument’ as those terms are defined in § 13A–1–2(11) and § 13A–1–2(12).”
We acknowledge that “objects” that are not deadly per se may constitute “dangerous instrument[s]” if they are used in a manner that renders them “readily capable of causing death or serious physical injury.” Commentary to § 13A–1–2, Ala.Code 1975. Further, this Court has held multiple times that various implements and objects, under appropriate circumstances, can become deadly weapons:
“ See also Buchanan v. State, 602 So.2d 459, 460 (Ala.Crim.App.1992) () . ...
To continue reading
Request your trial-
Ware v. State (Ex parte Ware)
... ... " (quoting Dickenson v. Israel, 482 F.Supp. 1223, 1225 (E.D.Wis.1980) )). See also McMillian v. State, 58 So.3d 849, 853 (Ala.Crim.App.2010) (reversing conviction for first-degree domestic violence because of insufficient evidence that deadly weapon was involved and remanding case with instructions to enter conviction on the lesser-included offense of second-degree domestic violence). IV ... ...
- Adams v. State
-
Adams v. State
... ... See Brand v. State, 960 So.2d 748 (Ala.Crim.App.2006) (conviction reversed and a judgment entered on a lesser-included offense); McMillian v. State, 58 So.3d 849 (Ala.Crim.App.2010) (conviction reversed and judgment entered on a lesser-included offense); Reck v. State, 84 So.3d 151 (Ala.Crim.App.2010) (conviction reversed and judgment entered on a lesser-included offense), reversed on other grounds, 84 So.3d 155 ... ...