Minnis v. State

• Decision Date: 01 November 1996
• Docket Number: CR-95-1075
• Citation: 690 So.2d 521
• Parties: Michael MINNIS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 521

690 So.2d 521

Michael MINNIS, alias v. STATE.

CR-95-1075.

Court of Criminal Appeals of Alabama.

Nov. 1, 1996.

Rehearing Denied Dec. 20, 1996.

Certiorari Denied March 14, 1997 Alabama Supreme Court 1960540.

Roy W. Miller, Hunstville, for Appellant.

Jeff Sessions, Atty. Gen., and Thomas Parker IV, Deputy Atty. Gen., for Appellee.

TAYLOR, Presiding Judge.

The appellant, Michael Minnis, was indicted for two counts of arson in the second degree, violations of § 13A-7-42, Code of Alabama 1975, for burning Station # 1 and Station # 2 of the Hazel Green Volunteer Fire Department (hereinafter "HGVFD") in two separate incidents. He was convicted as to the count pertaining only to Station # 2 and was sentenced to 16 years in the state penitentiary. The appellant raises four issues.

I

The appellant first contends that the trial court erred by denying his motion for a judgment of acquittal because, he says, the State failed to present sufficient evidence to sustain his conviction.

Section 13A-7-42, Code of Alabama 1975, defines arson in the second degree as follows: "a person commits the crime of arson in the second degree if he intentionally damages a building by starting or maintaining a fire or causing an explosion." Thus, in order to establish this offense, the State must prove that a fire was intentionally started or maintained and that the fire damaged a building.

The State may establish these elements by circumstantial as well as by direct evidence. Bolden v. State, 568 So.2d 841 (Ala.Cr.App.1989). "The mere fact that evidence is of a circumstantial nature does not make it deficient; circumstantial evidence is entitled to the same weight as direct evidence, provided it points to the guilt of the accused." Bradley v. State, 577 So.2d 541, 545 (Ala.Cr.App.1990).

"In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala.1985). Furthermore, a judgment of conviction will not be set aside on the ground of insufficiency of the evidence unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the judgment is so decided as to clearly convince the reviewing court that it was wrong and unjust. Jackson v. State, 516 So.2d 726 (Ala.Cr.App.1985)."

Powe v. State, 597 So.2d 721, 724 (Ala.1991), on remand, 597 So.2d 730 (Ala.Cr.App.1992). This Court will not substitute its judgment for that of the jury. Our obligation is to determine if there exists any reasonable theory from which the jury could have concluded that the defendant was guilty of the crime charged.

The State's evidence tended to show that on December 2, 1992, at approximately 7:35 p.m., a fire was started at HGVFD Station # 2 and as a result of the fire the building was damaged. Officials received a call at 7:49 p.m. on that same date reporting that there was a fire at Station # 2. William Larry Gardner, a deputy state fire marshall, testified that the fire was not accidental, but that it had been intentionally started and gasoline had been used as the "accelerant material." He testified that in investigating the fire, he noticed that a wall clock at Station # 2 had stopped at 7:40 p.m. because of the heat from the fire. Further, Gardner noted that a fire such as the one at Station # 2 would take approximately 10 minutes to become fully involved. The cumulative effect of his testimony was that the fire was started just before 7:35 p.m. on December 2, 1992. Gardner further testified that there were no signs of forced entry.

At the time of the fire, the appellant was a member of the HGVFD. He was also employed by the City of Huntsville and drove a white municipal truck as part of his job. Emmitt Connley, Jr., and Betty Connley, who live approximately 100 yards from the station, testified that they saw a white truck parked at the fire station immediately before the fire, but that it was not present at the time they noticed the fire. Alvin Robinson, a utility worker who was in the vicinity of Station # 2 before the fire, testified that he noticed a white municipal vehicle at the station at approximately 7:30 p.m. on December 2, 1992. Additionally, Sharon Rutherford testified that she saw the appellant driving a white truck toward the fire station just before 7:30 p.m. on the evening of the fire. Furthermore, there was testimony that two of the appellant's fellow firefighters were with the appellant between 7:15 and 7:30 p.m. that evening. One of the firefighters testified that the appellant told him that he had to go to Station # 2 to retrieve his radio before going to another station to work on a fire truck. The three separated immediately before 7:30 p.m. on the evening of the fire a little over one mile from Station # 2.

Several of the appellant's fellow firefighters testified that the appellant had a key to Station # 2. Moreover, there was also testimony that the other individuals who had keys to Station # 2 were either in a training session being conducted at another fire hall or were working at other places of employment.

Viewing the evidence in a light most favorable to the State, we find that the trial court did not err in denying the appellant's motion for a judgment of acquittal on the grounds of insufficiency of the evidence.

II

The appellant's next contention is that the trial court abused its discretion by denying the appellant's motion to sever the two counts of the indictment.

Alabama Rule of Criminal Procedure 13.4(b) states, in pertinent part: "A defendant's motion to sever offenses ... must be made not more than seven (7) days after arraignment or filing of a written plea of not guilty prior to trial.... The right to move for severance is waived if a proper motion is not timely made."

The appellant was indicted for these offenses in June 1993. He entered a plea of not guilty and a waiver of arraignment on July 11, 1995. The motion to sever was filed on July 28, 1995. Thus, the appellant's motion to sever was not timely.

However, even if the motion to sever had been timely, the trial court did not abuse its discretion in denying the motion, and the appellant has not established any compelling prejudice. This Court noted in Summerlin v. State, 594 So.2d 235, 236 (Ala.Cr.App.1991), that "the granting of a severance rests within the discretion of the trial court and its refusal to sever counts ... will only be reversed for a clear abuse of discretion."

" The burden of proof is on the defendant to demonstrate specific and compelling prejudice which the trial court cannot protect against and which causes him to receive an unfair trial. United States v. Butera, 677 F.2d 1376, 1385 (11th Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983). It is only the most compelling prejudice, against which the trial court will not be able to afford protection, that will be sufficient to show the court abused its discretion in not granting a severance. United States v. Perez, 489 F.2d 51, 65 (5th Cir.1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). Moreover, a defendant seeking to overturn a denial of severance must demonstrate specific prejudice which resulted from the denial. United States v. Walker, 456 F.2d 1037, 1039 (5th Cir.1972). A mere showing of some prejudice is insufficient. United States v. Wilson, 657 F.2d 755, 765 (5th Cir.1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1456, 71 L.Ed.2d 667 (1982); United States v. Staller, 616 F.2d 1284, 1294 (5th Cir.), cert. denied, 449 U.S. 869, 101 S.Ct. 207, 66 L.Ed.2d 89 (1980)."

Hinton v. State, 548 So.2d 547, 555 (Ala.Cr.App.1988), aff'd, 548 So.2d 562 (Ala.) cert. denied, 493 U.S. 969, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989).

The appellant contends "that there was a danger of the jury cumulating the evidence" as to the separate offenses and that the jury was unable to separate the evidence during deliberations. Because the jury returned a guilty verdict as to only one count, it is clear that the jury separated the evidence as it pertained to each offense.

The appellant also argues that there was no clear distinction made at trial between the two fires. That contention is not supported by the record; in fact, the entire latter portion of the trial concerned the second fire. It is true that several witnesses testified as to both fires; however, the appellant has failed to show that the jury could not distinguish between the testimony pertaining to the fire at Station # 2 and that pertaining to the fire at Station # 1.

III

The appellant's third contention is that the trial court committed reversible error by receiving evidence of a prior bad act. Specifically, he contends that this evidence related to a collateral act not charged in the indictment and, therefore, was subject to the exclusionary rule.

The record indicated that the appellant "took" a generator from the HGVFD in the spring of 1992. When confronted regarding the whereabouts of the generator, the appellant responded that he had taken it in order to repair it. Over a period of six months, Mark Adcock, HGVFD's fire chief during 1992, had numerous conversations with the appellant about the generator. The substance of the conversations was that Adcock told the appellant that he needed to return the generator and that, if he did not, the matter would be turned over to law enforcement. The generator was never returned. The appellant was then prosecuted for theft of property and he entered a plea of guilty.

Before trial, the appellant filed a motion in limine to preclude the State from introducing evidence of this prior conviction. The trial court granted the motion. However, the State maintained that this evidence was admissible because, it...