Stewart v. State

• Decision Date: 06 October 1981
• Docket Number: 4 Div. 911
• Citation: 405 So.2d 402
• Parties: Oree STEWART v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 402

405 So.2d 402

Oree STEWART v. STATE.

4 Div. 911.

Court of Criminal Appeals of Alabama.

Oct. 6, 1981.

Kenneth W. Quattlebaum of Brogden & Quattlebaum, Ozark, for appellant.

Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.

TYSON, Judge.

The appellant was convicted of assault in the second degree for the beating of a seventeen month old child. The trial court fixed his punishment at eight years in the state penitentiary.

The State's evidence in this case is largely circumstantial. There were no eyewitnesses to the assault which resulted in the injuries to the child in question. Briefly, the State's evidence proved that Ms. Shiela Freeman and the appellant lived together from August through November of 1980. Ms. Freeman worked at a restaurant and during work hours she often left her two children, a two year old girl and the seventeen month old victim, Bobby Earl, in the appellant's care.

Approximately a month and a half after Ms. Freeman had lived with the appellant she began to notice injuries to Bobby Earl; the injuries would occur when Bobby Earl was left with the appellant. On different occasions Ms. Freeman noticed scratches on Bobby Earl's head and stomach, bruises on his knees with one knee more swollen than the other and bruises on the child's head and around his eyes. When Ms. Freeman confronted the appellant about these injuries appellant denied scratching Bobby Earl. He also told her he didn't know how the child's knees became bruised other than "he was crawling." (R. 19) Appellant's explanation for the bruises around Bobby Earl's eyes and to his head was that "he fell out of the chair." Ms. Freeman described the chair from which Bobby Earl allegedly fell as being "not too high," a regular "sofa" chair with "fur type stuff on it." (R. 20)

Later, in October, Ms. Freeman discovered a burn on Bobby Earl's buttocks after the child had been left with the appellant. Appellant explained that the burn had occurred when Bobby Earl "fell on the ash tray;" however, appellant was unable to produce any burned clothing the child should have been wearing.

Then, on November 22, 1980, a Saturday, Ms. Freeman again left her children in appellant's care while she went to work. When she returned that night appellant was not there but the children were in bed asleep. The next morning Ms. Freeman discovered that both of Bobby Earl's eyes were blacked, his head was badly bruised and there was a large knot on his forehead. When Ms. Freeman confronted appellant about this episode, he again could offer no explanation for the injuries.

On Tuesday, November 25, 1980, Mrs. Kathy Brooks, a social worker with the Dale County Department of Pensions and Security, came by to see Ms. Freeman and then went with her to take Bobby Earl to the hospital. Mrs. Brooks described Bobby Earl's injuries as follows:

"(H)e had two very dark eyes that looked like black eyes, and he had a large knot in the middle of his forehead. His leg was a little swollen. He had bruises on the right side of his face, and we took the child's diaper off and there was a large circular pink area on one of his buttocks that had what looked like to be a scab forming right in the middle of it, a raw area." (R. 39-40)

Photographs taken at the hospital verify Mrs. Brooks description of Bobby Earl's condition in all details. Mrs. Brooks stated that based on her investigation of the incident a warrant was sworn against the appellant.

Ms. Freeman further testified that she received a letter from appellant while he was in jail. Appellant told her that certain individuals from Montgomery had visited his cell inquiring about "the kids" and that he had given them a "phony stand (sic)." Appellant wanted her to "leave Ozark for a little while until this blows over." (R. 26)

The appellant's motion to exclude the State's evidence was denied. Evidence presented by the defense was in certain respects conflicting with the State's case.

I

The appellant contends that the circumstantial evidence presented by the State was insufficient to support his conviction. We disagree. This court is required to view the evidence in the light most favorable to the State, Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975), and not substitute its judgment for that of the jury. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the State's evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969).

Circumstantial evidence is not inferior evidence, Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978), and will support a conviction as strongly as direct evidence provided it points to the guilt of the accused. Kelsoe v. State, 356 So.2d 735 (Ala.Cr.App.1978). While mere speculation, conjecture, or surmise, will not authorize a conviction, the jury is under a duty to draw whatever permissible inferences it may from circumstantial evidence and to base its verdict on whatever permissible inferences it chooses to draw. Kontos v. State, 363 So.2d 1025, 1034 (Ala.Cr.App.1978).

Our Supreme Court in Dolvin v. State, 391 So.2d 133, 137, 138 (Ala.1980) adopted the standards set out in Cumbo, supra, for testing the sufficiency of circumstantial evidence which we find controlling here:

"In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); Clark v. United States, 293 F.2d 445 (5th Cir. 1961).

"(W)e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir. 1967):

"Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thornberry's words, * * * the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude. Williamson v. United States, 5th Cir. 1966, 365 F.2d 12, 14. (Emphasis supplied.)

"The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is to examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged. McGlamory, 441 F.2d at 135 and 136.

"See also Blair v. State, 18 Ala.App. 615, 93 So. 45 (1922). Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant's guilt is a question for the jury and not the court. Cannon v. State, 17 Ala.App. 82, 81 So. 860 (1919); see also Evans v. State, 39 Ala.App. 404, 408, 103 So.2d 40, cert. denied, 267 Ala. 695, 103 So.2d 44 (1958)."

See also Hayes v. State, 395 So.2d 127 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981).

As was stated in Hayes, supra: "Guilt need not be proven to the 'exclusion of every possibility of innocence' to warrant a conviction. ... The State's evidence should not be stricken out, merely because, when disconnected it is weak and inconclusive, if, when combined, it may be sufficient to satisfy the jury of an accused's guilt." 395 So.2d, at 147. Applying the foregoing principles of law to the facts in this case, we hold that the evidence was sufficient to sustain the jury's verdict.

II

The appellant also maintains that the State failed to prove the necessary elements to establish a prima facie case of assault in the second degree under any of the alternative categories listed under Ala. Code § 13A-6-21 (Supp.1977). We, again, disagree with appellant's contention.

For the purpose of this appeal we need only consider Section 13A-6-21(a)(2) which reads in pertinent part:

"A person commits the crime of assault in the second degree if: With intent to cause physical injury to another person, he causes physical injury to any person by means of a deadly weapon or a dangerous instrument."

Ala. Code § 13A-1-2(11) and (12) (Supp.1979) define "deadly weapon" and "dangerous instrument" as follows:

"DEADLY WEAPON. A firearm or anything manifestly designed, made or adopted for the purposes of inflicting death or serious physical injury, and such term includes, but is not limited to, a pistol, rifle or shotgun; or a switch-blade knife, gravity knife, stiletto, sword or dagger; or any billy, black-jack, bludgeon or metal knuckles.

"DANGEROUS INSTRUMENT. Any instrument, article or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is highly capable of causing death or serious...