Parker v. State

• Citation: 516 So.2d 859
• Decision Date: 30 June 1987
• Docket Number: 3 Div. 386
• Parties: John Andrew PARKER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 859

516 So.2d 859

John Andrew PARKER v. STATE.

3 Div. 386.

Court of Criminal Appeals of Alabama.

June 30, 1987.

Rehearing Denied July 28, 1987.

Certiorari Denied Nov. 20, 1987

Alabama Supreme Court 86-1453.

Jeffery C. Duffey, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

On November 7, 1985, appellant John Andrew Parker was found guilty of the forcible gang rape of a 14-year-old girl. The appellant was sentenced to life without parole pursuant to the requirements of the Habitual Felony Offender Act. He raises eight issues on appeal.

A little after 10:00 p.m. on April 15, 1985, the victim, a 14-year-old girl, was outside Michele's Club with her sister. One of the appellant's co-defendants began talking to her. Soon the appellant, a 27-year-old man, and the other co-defendants came out of the club. The five men asked the victim if she wanted to ride with them to a store. She accepted and got into the back of the two-door car with the men. She sat in the back seat between two men while the other three sat in the front seat. As soon as they left, one of the men in the front seat turned, held up a knife and told the victim, "You better act right." The victim tried to get out of the car one of the men in the back seat blocked her exit with his leg. After stopping at a gas station to purchase beer, they went to a house in Southlawn in Montgomery County. All five men and the victim went inside the house. One of the men took the victim to a back bedroom and locked the door. He requested that she have sexual intercourse with him and she refused. One of the other men said if the victim would unlock the door they would help her. She unlocked the door and three of the men entered clad only in underwear. They then pulled her clothes off as she resisted by kicking and screaming. They held her arms and legs. The men then had sex with her, with the appellant being the second to do so. The appellant got back on top of the victim after the third man. She continued to yell and scream and one of the men threatened to hit her with a hammer. The men thought someone arrived at the house and gave her back her clothes and then all of them left the house. They told her they would take her home and she got in the car. One of the men then made comments about oral sex and she jumped out of the car and ran to the house next door. She hid behind some bushes in order to avoid the men in the car. A woman opened the door and let the victim into the house. She telephoned the girl's two sisters, who took her to Jackson Hospital where a rape exam was performed.

I

The appellant asserts that the evidence in his case was insufficient to support a conviction of first degree rape and that such verdict was against the great weight of the evidence. He states that since he was suffering from an outbreak of a sexually transmitted disease, herpes, sexual intercourse would have been painful and virtually impossible for him. He further argues that since his disease was in the active stage, it would be expected that the victim would have contracted the disease had he raped her. The fact that she did not contract herpes, he argues, is evidence in his favor. He further emphasizes that the evidence shows that the hair and semen samples taken after the gang rape did not match his. Appellant Parker also points out that he had a witness to testify that he was somewhere else at the time of the crime.

Rape in the first degree is defined in § 13A-6-61, Code of Alabama 1975, as follows:

"(a) A male commits the crime of rape in the first degree if:

"(1) He engages in sexual intercourse with a female by forcible compulsion; or

"(2) He engages in sexual intercourse with a female who is incapable of consent by reason of being physically helpless or mentally incapacitated; or

"(3) He, being 16 years or older, engages in sexual intercourse with a female who is less than 12 years old.

"(b) Rape in the first degree is a Class A felony."

The state put forth evidence as to every element of the offense. There was evidence on which the jury might have based their conclusions. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Within these parameters, we are to review the evidence in the light most favorable to the prosecution. Id.

As to appellant's assertion that he was incapable of performing sexual intercourse, the testimony proffered deals with probabilities and not absolutes. The chances were that the victim would more than likely have contracted herpes, not that she inevitably would have caught the disease. The expert testimony was that the outbreak of herpes did not make it impossible for the appellant to commit the act. Additionally, the absence of semen or hair samples does not necessarily prove that sexual intercourse did not take place. "Whether or not appellant climaxed is immaterial. Emission is not an element of the offense of rape." Thomas v. State, 403 So.2d 323, 325 (Ala.Cr.App.1981). Where there is evidence of lack of intercourse, as well as evidence of guilt, it is for the jury to sort out the evidence and give it just such weight as they believe it deserves. We will not substitute our decision for that of the jury. Gossett v. State, 451 So.2d 437 (Ala.Cr.App.1984); Barnes v. State, 445 So.2d 995 (Ala.Cr.App.1984); Atwell v. State, 432 So.2d 22 (Ala.Cr.App.1983).

"Conflicting evidence should be reconciled by the jury, if possible, and if they cannot reconcile it they may base their verdict on that part of the testimony which they consider worthy of credit, and reject that which they deem to be unworthy of belief.... Arnold v. State, 33 Ala.App. 146, 147, 30 So.2d 587 (1947)."

Jones v. State, 469 So.2d 713, 717 (Ala.Cr.App.1985).

As the statutory requirements were met, we find that the evidence was sufficient to sustain appellant's conviction for first degree rape.

II

Again, the appellant contends that the evidence presented by the prosecution was insufficient to sustain the conviction for rape in the first degree because two of his co-defendants were charged with first degree rape, yet the jury convicted them of second degree rape and another pleaded guilty to second degree rape. The appellant asserts that since his co-defendants' convictions were based on the same facts, he should have been convicted, at most, for second degree rape. This argument is without merit. Appellant cites no cases in support of his position. It is not the law, nor is it reasonable, that a jury should be bound in their determination of guilt or innocence by verdicts of other juries in trials of co-defendants. Different juries reviewing the same set of facts may reasonably reach opposite results. Lewis v. Moss, 347 So.2d 91 (Ala.1977). Appellant's argument ignores the fact that there can be different degrees of culpability among co-defendants. Further, the same person telling of the same event is not likely to use identical language each time he testifies. Still further, the jury may have understood the testimony a little differently.

III

The appellant also asserts that the charge of first degree rape against him should have been reduced to second degree rape on the basis of collateral estoppel or res judicata. Appellant claims that the jury verdict in the trial of his co-defendants was a final judgment against him. Appellant urges that since the jury in the co-defendants' cases did not find forcible compulsion, his jury should be precluded from reaching such a verdict because that issue had already been determined.

Once an issue of ultimate fact has been determined by a valid and final judgment, collateral estoppel bars relitigation by the same parties in a future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970); Pooley v. State, 470 So.2d 1337 (Ala.Cr.App.1985); Morris v. State, 465 So.2d 1173, reversed, 465 So.2d 1180, on remand, 465 So.2d 1185 (Ala.Cr.App.1984). The doctrines of collateral estoppel and res judicata are applicable to criminal cases as well as civil cases. Quinnelly v. City of Prichard, 292 Ala. 178, 291 So.2d 295 (1974).

While the issues, including that of forcible compulsion, concerning the rape of the young girl were considered by the juries trying the two co-defendants, juries judging other people did not consider these issues as they related to this defendant. For the doctrine of collateral estoppel to apply, the issue would have to have been previously decided between the appellant and the state. It was not. Previous determinations were between the state and appellant's co-defendants and judged their actions, not his. Therefore, neither the issue nor the parties were the same.

IV

The appellant contends that the prosecution failed to prove that the defendant had previously been convicted of three felonies for the purposes of the Habitual Felony Offender Act, § 13A-5-9, Code of Alabama 1975. The appellant argues that his prior adjudication of guilt in Elmore County for burglary/grand larceny constituted only one conviction, not two. He does not contest his prior conviction in Montgomery County for theft.

"Burglary" is defined in Title 14, § 85, Code of Alabama 1940 (recompiled 1958):

"Any person who in the daytime, with intent to steal or to commit a felony, breaks into and enters any inhabited dwelling house or any other house or building which is occupied by any person lodged therein, or any person who either in the nighttime or daytime, with intent to steal or to commit a felony, breaks into and enters any uninhabited dwelling house, or any building, structure or enclosure ... is guilty of burglary in the second degree and shall on conviction be imprisoned in the penitentiary for not less than one year, nor more than ten years."

"Grand larceny" is defined in Title 14, § 331, Code of Alabama 1940 (recompiled 1958), as amended effective 1962:

"Any person who steals any...