Poole v. State
Decision Date | 17 June 1994 |
Citation | 650 So.2d 541 |
Court | Alabama Court of Criminal Appeals |
Parties | Danny POOLE v. STATE. CR 93-488. |
Larry R. Grissett, Opp, and Wanda M. Rabren, Andalusia, for appellant.
James H. Evans, Atty. Gen., and Ward Beeson, Asst. Atty. Gen., for appellee.
Danny Poole, the appellant, was convicted of sexual abuse in the first degree and sodomy in the first degree. He was sentenced to three years' imprisonment and ten years' imprisonment, respectively, with the sentences to be served concurrently. He raises three issues on this direct appeal from those convictions.
The appellant contends that his motion for a new trial should have been granted because, he says, the evidence did not show separate and distinct crimes arising out of different conduct. The appellant is apparently relying on Ala.Code 1975, § 13A-1-8(b)(1), which provides:
The 40-year-old appellant was the stepfather of the 11-year-old victim. The State presented evidence that the child was sexually abused by the appellant over a period of a number of months and that there were separate acts of sexual abuse and of sodomy. The victim testified that on a number of separate occasions the appellant removed her nightgown and underwear and made her sit on his lap while he was naked. On these occasions, the appellant would "wrestle with [the victim] and everything" and tickle the victim. R. 35. On repeated occasions, the appellant made the victim rub his leg and his penis. One time, the appellant made the victim "bite" his penis. R. 40. On one occasion, the appellant, while naked, "lay down on the floor and told [the victim] to lay on top of him." R. 44. On another occasion, when the victim was nine years old, the appellant told her to "come into his room ... [a]nd ... to take off [her] nightgown and get on top of him in bed." R. 46. On that occasion, the appellant made her "[lay] on top of his penis" and spanked her for her birthday. R. 47. On one occasion, the appellant "put his mouth between" the victim's legs and touched her with his tongue. R. 48-49.
" 'Where there is evidence of separate and distinct acts constituting separate criminal offenses, separate convictions and sentences may be legally had under multiple counts of an indictment.' " Hendrix v. State, 589 So.2d 769, 772 (Ala.Cr.App.1991) ( ) . Here, the sexual abuse and the sodomy offenses arose from separate criminal acts of the appellant committed on separate occasions. The motion for a new trial was properly denied.
The appellant maintains that the State's evidence is not sufficient to support his convictions.
A serious question exists as to whether this issue was even preserved for appellate review. At the close of the State's evidence, trial counsel stated, "Judge, ... for the record, we need to move for judgment of acquittal before we put our case on." R. 640. No grounds whatsoever were stated for that motion; consequently, it preserved nothing for review. See Ex parte Maxwell, 439 So.2d 715, 717 (Ala.1983) () . See also Ex parte Johnson, 620 So.2d 665 (Ala.1993). There was no motion for judgment of acquittal at the close of all the evidence.
While it does not appear that this issue was properly preserved in the trial court, our review of the record convinces this Court that the State established a prima facie case of both sexual abuse in the first degree and sodomy in the first degree as charged in the indictment. That review also convinces this Court that the evidence is sufficient to support the verdict of the jury.
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