Saffold v. State

• Citation: 951 So.2d 777
• Decision Date: 28 April 2006
• Docket Number: CR-04-2068.
• Parties: Eric SAFFOLD v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

951 So.2d 777

Eric SAFFOLD v. STATE of Alabama.

CR-04-2068.

Court of Criminal Appeals of Alabama.

April 28, 2006.

Rehearing Denied June 16, 2006.

Certiorari Denied September 29, 2006 Alabama Supreme Court 1051393.

Thomas K. Brantley, Jr., Dothan, for appellant.

Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellee.

SHAW, Judge.

Eric Saffold was convicted of first-degree robbery, a violation of § 13A-8-41, Ala.Code 1975, and was sentenced to 25 years' imprisonment. On appeal, Saffold contends (1) that the trial court erred in denying his motion for a judgment of acquittal because, he says, the State failed to prove a prima facie case of first-degree robbery, and (2) that the trial court erred in denying his motion to suppress the statement he made to the police.

Our review of the record reveals the following pertinent facts: At approximately 10:00 p.m. on September 26, 2004, Phillip Gradic, the owner of the Dairy Queen restaurant on South Alice Street in Dothan, and Kevin Guerra, who was employed as a cook at the Dairy Queen, were heading home after they had locked up for the evening. They exited the side door of the restaurant and headed toward Gradic's automobile. As they rounded the corner to the back of the building, Gradic, who testified that he had been robbed a few months earlier and tended to be more alert to his surroundings, saw someone standing in the area between where the walk-in cooler extended out of the back of the building and some bread racks, and this person was facing toward the back door of the building — the door that they had used several times that evening while they were changing the letters on the advertising sign. At trial, both Gradic and Guerra identified Saffold as the person they saw that evening. Gradic testified that he noticed that Saffold had a mask pulled over his face and that he was wearing a trench coat even though it was "T-shirt weather" that evening. (R. 45.)

Gradic had a 9mm. gun in his pocket, and he pulled it out and pointed it at Saffold. When Saffold turned around, he stated, "I see you've got a gun, I'm not going to rob you." (R. 48.) Gradic asked Saffold if he was armed, and Saffold told him that he was not. Gradic told Saffold to take off his mask, to lie down on the ground, and to place his hands where Gradic could see them. Saffold complied. Then Gradic telephoned the police on his cellular telephone. While Saffold was lying on the ground on his stomach, he kept trying to pull his hands under his chest, but Gradic told him to put his hands back where he could see them. Guerra looked around the area to make sure that there were not any other people waiting to help Saffold rob them because Saffold "had stated that there [were] other people watching him from around the buildings behind [the Dairy Queen]." (R. 50.) Although both Gradic and Guerra testified that Saffold made no oral threats against them, Guerra testified that he was afraid during the encounter:

"Q. All right. So you're behind — walking behind Phillip?

"A. Yes.

"Q. Do you notice anybody standing back there?

"A. Not at first, until Mr. Gradic pulled his gun out. Then that's when I observed a man with a mask on.

"Q. Okay. So the first thing you know about it is when Phillip pulls out his gun?

"A. Yeah. Phillip pulls out his gun and he starts saying something. And then when I looked to the side, I saw a man with a mask on. So I'm like: Oh, my God, here we go again.

"Q. Did it scare you?

"A. Yeah, yeah. Because, I mean, somebody with a mask on, so —

"Q. Where do you see this man with the mask standing?

"A. There's a bread rack and there's a cooler. And he was standing like right there on the corner. So I told Phillip to go ahead and keep an eye on him and I'll go ahead check the store and make sure there's not more than one person.

"Q. All right. So you look around?

"A. Yeah.

"....

"Q. Put it this way. You didn't hear him threaten either one of you, did you?

"A. The only thing I can tell you, Mr. Gradic told him to lie down, to lie down. And I told Phillip, `I'll watch your back, I'm going to check the store.' Then Eric was up there, kept on saying something about, `I'm not going to rob you, I'm not going to rob you, I'm running from somebody, I'm trying to hide from somebody,' you know. So what I was doing was going around the building to make sure there wasn't nobody else.

"Q. So the answer to the question about whether he threatened you is no?

"A. Well, no, not really. But I was scared because I wasn't sure if there was more than one person.

"Q. Right. But he didn't threaten you? I'm not talking about anybody else anywhere on Alice Street or the blocks behind Fortner or anywhere else.

"A. He didn't say nothing to me."

(R. 61-62, 66-67.)

When the police officers arrived, Saffold told them, "Don't shoot me, I'm laying on a gun." (R. 51.) The police officers handcuffed Saffold and when they rolled him over, they discovered that Saffold had a loaded rifle concealed in his trench coat, which was somehow attached to him by a string.

Saffold was transported to the police station where Jason DeVane, a corporal with the Dothan Police Department, read Saffold his Miranda¹ rights. Cpl. DeVane testified that Saffold indicated that he understood his rights; that Saffold indicated that he had not been drinking alcohol and that he was not under the influence of drugs; that Saffold did not appear to be under the influence of drugs or alcohol; that no promises, inducements, or threats were made; and that Saffold signed the waiver-of-rights form and gave a statement regarding the incident at the Dairy Queen restaurant. Cpl. DeVane stated that Saffold told him that "he was there to scare the employees to get them to give him money." (R. 93.) Cpl. DeVane further testified that Saffold identified the mask (State's Exhibit 1) as the mask "he was wearing when he was standing in the corner awaiting the employees to exit the store" (R. 93); that Saffold also told him that the rifle (State's Exhibit 2) "was the rifle that he had tied around his shoulder underneath his jacket" (R. 93); and that Saffold told him that he had been going to use the rifle to scare the employees so that they would give him money.

I.

Saffold argues that the trial court erred in denying his motion for a judgment of acquittal because, he says, the State failed to prove a prima facie case of first-degree robbery. Specifically, Saffold contends that "[t]he State offered no evidence that Mr. Saffold used any force or threatened the imminent use of force upon Mr. Gradic or Mr. Guerra; therefore, this element of the crime fails and Mr. Saffold should have been acquitted of Robbery in the First Degree." (Saffold's brief at p. 34.) In response, the State argues:

"Saffold does not argue in his brief that he was not armed with a weapon; rather, the crux of his argument is because the victim did not give him the opportunity to brandish his weapon or verbally demand money, the State failed to establish a prima facie case of first-degree robbery. The evidence proved otherwise."

(State's brief at p. 11.)

"`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.'" Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App. 1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). "`The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.'" Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App. 1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). "`When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision.'" Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App. 1990). "The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury." Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

Section 13A-8-41, Ala.Code 1975, states:

"(a) A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he:

"(1) Is armed with a deadly weapon or dangerous instrument."

Section 13A-8-43, Ala.Code 1975, states:

"(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:

"(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or

"(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property."

(Emphasis added.)

Section 13A-8-40(b), Ala.Code 1975, states:

"`In the course of committing a theft' embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission."

Section 13A-8-1(13), Ala.Code 1975, which is applicable to § 13A-8-43, see § 13A-8-40(a), Ala.Code 1975, defines "threat" in part as "[a] menace, however communicated, to ... [c]ause physical harm to the person threatened or to any other person." (Emphasis added.) "Menace" is defined in the Compact Oxford English Dictionary 1062 (2d ed.1994) in part as "[a] declaration or indication of hostile intention, or of a probable evil or catastrophe" (emphasis added); Merriam-Webster's Collegiate...