Tulley v. City of Jacksonville

• Decision Date: 03 October 2014
• Docket Number: CR–11–1880.
• Citation: 199 So.3d 779
• Parties: Jason Dean TULLEY v. CITY OF JACKSONVILLE.
• Court: Alabama Court of Criminal Appeals

199 So.3d 779

Jason Dean TULLEY

v.CITY OF JACKSONVILLE.

CR–11–1880.

Court of Criminal Appeals of Alabama.

Oct. 3, 2014.

Joseph J. Basgier III and Brett M. Bloomston, Birmingham; and J.D. Lloyd, Birmingham, for appellant.

Marilyn May Hudson, Jacksonville, for appellee.

On Application for Rehearing

PER CURIAM.

This Court's unpublished memorandum issued on February, 28, 2014, is withdrawn, and the following opinion is substituted therefor.

Jason Dean Tulley was convicted of carrying a pistol on premises not his own. See § 13A–11–52, Ala.Code 1975. We affirm.

On March 31, 2011, Tulley, who had a pistol unconcealed in a hip holster, entered the First Educators Credit Union (“the credit union”) in the City of Jacksonville to conduct business there. James Clayton, an officer with the Jacksonville Police Department, was working off-duty as a security officer at the credit union. Clayton saw Tulley walk into the credit union with the pistol on his hip.

Clayton approached Tulley and told him that he could not carry the pistol in the credit union and that he needed to return the pistol to his vehicle. According to Clayton, “[a]t first, [Tulley] was very argumentative about it” and asserted that “[i]t was his constitutional right to carry a firearm into the building.” (R. 9.) Clayton testified that Tulley was “defiant” but did not raise his voice or shout. Tulley ultimately complied with Clayton's request, returned the pistol to his vehicle, and reentered the credit union.

Tulley was arrested a few days later and was charged with carrying a pistol on premises not his own. See § 13A–11–52, Ala.Code 1975.¹ Tulley was convicted in the Jacksonville Municipal Court, where he was ordered to pay a $50 fine and $200 in costs. Tulley appealed to the Calhoun Circuit Court.

In the circuit court, Tulley filed two motions to dismiss the charge against him; the circuit court denied both. Following a bench trial, Tulley was convicted and was sentenced to 30 days' imprisonment and ordered to pay court costs and a $200 fine. The circuit court suspended Tulley's 30–day sentence and placed him on 6 months' probation. Tulley moved for a new trial; that motion was denied by operation of law. See Rule 24.4, Ala. R.Crim. P.

Standard of Review

“In considering an appeal from a bench trial, the standard for review is well established.

“ ‘ “When evidence is presented ore tenus to the trial court, the court's findings of fact based on that evidence are presumed to be correct,” Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994) ; “[w]e indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence,” Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala.1986) ; and we make “ ‘all the reasonable inferences and credibility choices supportive of the decision of the trial court.’ ” Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley, 494 So.2d at 761. “ ‘Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court's conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ ” Ex parte Jackson, 886 So.2d [155] at 159 [ (Ala.2004) ], quoting State v. Hill, 690 So.2d 1201, 1203 (Ala.1996), quoting in turn Ex parte Agee, 669 So.2d 102, 104 (Ala.1995).

“ ‘However, “[t]he ore tenus presumption of correctness applies to findings of fact, not to conclusions of law.”

City of Russellville Zoning Bd. of Adjustment v. Vernon, 842 So.2d 627, 629 (Ala.2002). “[T]he ore tenus rule does not extend to cloak a trial judge's conclusions of law, or incorrect application of law to the facts, with a presumption of correctness.” Eubanks v. Hale, 752 So.2d 1113, 1144–45 (Ala.1999). “ ‘ “[W]hen the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment.” ’ ” Ex parte Jackson, 886 So.2d at 159, quoting Hill, 690 So.2d at 1203, quoting in turn, Ex parte Agee, 669 So.2d at 104. Thus, we review the trial court's conclusions of law and its application of law to the facts under the de novo standard of review.' ”

Bailey v. City of Ragland, 136 So.3d 498, 502 (Ala.Crim.App.2013) (quoting Washington v. State, 922 So.2d 145, 157–58 (Ala.Crim.App.2005) ).

Discussion

I.

Tulley challenges the sufficiency of the evidence to sustain his conviction under § 13A–11–52, Ala.Code 1975.

A.

We first address Tulley's contention that the City failed to present sufficient evidence indicating that “Tulley was not allowed to bring his lawfully carried pistol into the credit union.” (Tulley's brief, p. 17.) Tulley argues:

“The credit union was generally open to the public and had not communicated to Mr. Tulley, either personally or by a public notice, that he was not allowed to carry his pistol onto the premises. Because the City failed to present evidence that Mr. Tulley was not allowed to openly carry his pistol into the credit union either by operation of law or because he defied an order by the owner or authorized agent of the credit union that he not carry a pistol onto the premise, the City failed to present a prima facie case that Mr. Tulley violated § 13A–11–52.”

(Tulley's brief, p. 17.)

At all times relevant to this case, § 13A–11–52 provided:

“Except as otherwise provided in this article, no person shall carry a pistol about his person on premises not his own or under his control; but this section shall not apply to any sheriff or his deputy or police officer of an incorporated town or city in the lawful discharge of the duties of his office, or to United States marshal or his deputies, rural free delivery mail carriers in the discharge of their duties as such, bonded constables in the discharge of their duties as such, conductors, railway mail clerks and express messengers in the discharge of their duties.”²

Tulley's argument turns on the meaning of the phrase in § 13A–11–52 “on premises not his own or under his control.” This Court has stated:

“The Alabama Supreme Court interpreted a former codification of this prohibition to apply only to the carrying of a pistol on the private property of others—not on any public property. Isaiah v. State , 58 So. 53 (Ala.1911).²

“_______________

“ ²The statute reviewed in Isaiah v. State , 58 So. 53 (Ala.1911), stated, in pertinent part, as follows: ‘It shall be unlawful for any person to carry a pistol about his person on premises not his own or under his control. ’ This language was carried over in its entirety to § 13A–11–52. Although the current statute has include[d] exceptions (expressed in the language ‘[e]xcept as otherwise provided in this article’), no exception applies to the facts before us. In view of the facts of this case, we conclude that the interpretation in Isaiah of the language now presented is authoritative.”

E.T. v. State, 682 So.2d 508, 509 (Ala.Crim.App.1996) (emphasis added).

Thus, E.T. cited as binding authority the Alabama Supreme Court's construction in Isaiah v. State, 176 Ala. 27, 58 So. 53 (1911), of the predecessor to § 13A–11–52 ; specifically, E.T. recognized that § 13A–11–52 does not generally prohibit the carrying of an unconcealed weapon on “public property”—rather, § 13A–11–52 generally prohibits the carrying of a weapon “on the private property of others.”

Tulley does not contend that he personally owned the premises of the credit union or that, by some proprietary interest, those premises were “under his control.” Rather, he argues that because the credit union was generally open to the public for business, the “public-property” exception recognized in Isaiah and E.T. applies in his case. We disagree.

Not long after the Alabama Supreme Court's decision in Isaiah, the Alabama Court of Appeals decided two cases that are instructive here. First, in Bell v. State, 11 Ala.App. 214, 65 So. 688 (1914), the Court of Appeals rejected Bell's argument that the location where he was arrested for violating the precursor to § 13A–11–52 was a “public street.” “[T]he place where the defendant was when he had a pistol in his hand was at the time in the possession of the Central of Georgia Railroad Company, and was within the inclosure of a structure which then was in course of erection and has since been completed by the railroad company.” 11 Ala.App. at 215, 65 So. 688. In affirming Bell's conviction, the Court stated: “The evidence that that space was then used as a passageway by the public in going to and from the trains, and was spoken of by the witness as a sidewalk, had no tendency, in view of the testimony of the witness as a whole, to prove that it was part of a public street. ” 11 Ala.App. at 215, 65 So. 688 (emphasis added).

In Norton v. State, 11 Ala.App. 216, 65 So. 689 (1914), decided the same day as Bell, the evidence indicated the following:

“[A]t the time the defendant carried the pistol in question, one Holmes was operating on his own premises a public gin, which was located along the side of and near the public road that passed or led by said gin; and that he (Holmes), for purposes of egress and ingress to and from his gin to the said public road, had opened up on his said premises a road, which led from the said public road to his said gin, and over which the public were impliedly invited to travel in bringing their cotton to and from his gin or in coming there for other purposes connected therewith. While the state's evidence tended to show that the defendant, who came in his buggy from the public road to the gin over the ginhouse road mentioned, with his pistol in the bottom of his buggy, did, after reaching the gin, get out of his buggy, pick up his pistol, and with it in his hand go out of the road into the ginhouse yard; yet the evidence for the defendant tended to show that at no time did he get outside of this ginhouse road with his pistol, but that he remained in said road during all the

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