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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
Jerry Kenneth Glass
State of Alabama
Appeal from Lauderdale Circuit Court
(CC-07-405; CC-07-406; CC-07-407; CC-07-408; and CC-07-409)
reckless endangerment, a violation of § 13A-6-24, Ala. Code
1975, and one count of criminal mischief in the second degree,
a violation of § 13A-7-22, Ala. Code 1975; all the counts
arose out of one incident in which Glass intentionally struck
a vehicle from behind with his vehicle.
Glass was sentenced
to 12 months in jail on each count, the sentences to be served
ordered Glass to serve 12 months and suspended the 4 remaining
years for 2 years.
In the spring of 2007, Glass's wife left him, and
Glass believed she was seeing another man.
One night in the week before the incident
made the basis of this prosecution, Glass telephoned a friend,
Melanie Phillips, and asked her to drive him to a restaurant
because he believed that his wife would be there with the man.
Phillips testified that as they drove, Glass kept looking into
cars and asking her to follow some, looking for his wife.
the restaurant parking lot, Phillips said, Glass would look
into cars or go up to groups of people leaving the restaurant
thinking his wife was with them.
Phillips eventually left
telephoned his parents and described his behavior to them.
Christy Claunch, an assistant manager at the restaurant,
testified that she received a telephone call from Glass's
father asking her to check on Glass.
She said she found Glass
in the parking lot, and that he ran toward her from some
He yelled at her to stay away from a certain car,
because, Glass told her, it belonged to his wife.
said that actually, the car belonged to one of her employees.
She said that Glass also believed that he saw his wife in
several cars in the parking lot.
his parents arrived.
She waited with Glass until
Glass then got in their car and left.
Claunch described Glass as "scruffy," and she said that
he was nervous and excited.
She testified that she did not
behavior, she suspected he was under the influence of drugs.
Some nights later, on the night of March 17 or in the
early morning hours of March 18, 2007, a group of four teens
who had attended the senior prom at Lexington High School were
traveling back and forth on Highway 71 going to a friend's
house for a post-prom party after having picked up a video
game at another friend's house.
Josh Hunt was driving the
group in his father's Ford F-150 pickup truck.
sister, Amanda, were at Glass's house that same night. Amanda
said that Glass received a telephone call from his wife and
that his wife apparently taunted Glass about his Chevrolet
Glass's house saw a white pickup truck drive down the highway
in front of the
house three times, and Glass became convinced
that his wife was in the truck.
He left the house and drove
off in the Tahoe, following the pickup truck.
Hunt testified that as he was returning to the party, he
saw a truck pull up behind him flashing its headlights.
said he pulled over to the side of the road, put his head out
the driver's side window, and saw Glass, whom he knew, walking
Glass was "screaming and hollering," and Hunt
Glass got back into the Tahoe and chased Hunt's
pickup truck down the highway.
Hunt said that as they traveled down the highway, Glass
began bumping the back end of the truck with his Tahoe.
bumps got progressively harder.
Hunt said Glass would let a
short distance develop between the vehicles, then Glass would
accelerate and hit the truck.
Hunt estimated that the truck
was hit between 5 and 10 times.
Eventually Glass turned
around and Hunt and his friends continued on to their friend's
Diane Gower, who lives near Glass, testified that on the
night of the prom at Lexington High School, she was awakened
about 1:00 a.m. by the sound of her door slamming.
Glass was at her door saying that he had chased a truck he
thought was his wife was in so that he could run it off the
road, but that his wife had not been one of the occupants.
Gower said that Glass told her he had been drinking and that
he did not want to be arrested for driving under the influence
of alcohol but that he planned to turn himself in the next
Gower confirmed that Glass smelled of alcohol and
that he acted as though he was drunk.
Ronnie Hunt, Josh's father, testified that he allowed
Josh to drive the Ford F-150 the night of the prom.
that he had an estimate from a body shop that repairs to the
truck as a result of the incident would cost about $2,000.
Glass contends that the trial court erred in denying his
motion for a mental examination to determine his competence on
the night of the offense.
Specifically, Glass argues that he
presented sufficient evidence at a hearing on his motion to
call into question his competency on that night.
"'"A defendant does not have
a right to a mental examination
whenever he requests one, and,
absent such a right, the trial
court is the screening agent of
State, 428 So. 2d 167 (Ala. Crim.
App. 1982); Beauregard v. State,
372 So. 2d 37 (Ala. Cr. App.),
cert. denied, 372 So. 2d 44 (Ala.
The defendant bears the
burden of persuading the court
that a reasonable and bona fide
defendant's mental competency,
and this is a matter within the
discretion of the trial court.
Miles v. State, 408 So. 2d 158
(Ala. Crim. App. 1981), cert.
denied, 408 So. 2d 163 (Ala.
1982). In determining whether an
required, the trial court must
determine if any factual data
establish a reasonable ground to
So. 2d at 43.
Where the trial
court finds that the evidence
presents no reasonable grounds to
[competency], the standard of
appellate review is whether the
"'Cliff v. State, 518 So. 2d 786, 790 (Ala.
Crim. App. 1987). See also Stewart v.
State, 562 So. 2d 1365 (Ala.Crim.App.1989);
Russell v. State, 715 So.2d 866 (Ala. Crim.
App. 1997); Ala.R.Crim.P. 11.'
"Ingram v. State, 779 So. 2d 1225, 1270-71 (Ala.
Crim. App. 1999), aff'd, 779 So. 2d 1283 (Ala.
Harrison v. State, 905 So. 2d 858, 861 (Ala. Crim. App. 2005).
"Only when the evidence presents a sufficient
investigation into his sanity required. Buttram v.
State, 338 So. 2d 1062 (Ala. Crim. App. 1976); Gales
v. State, 338 So. 2d 436 (Ala. Crim. App.), cert.
denied, 338 So. 2d 438 (Ala. 1976); Buttram v.
State, 57 Ala. App. 425, 329 So. 2d 114, cert.
denied, 295 Ala. 394, 329 So. 2d 116 (1976).
"'Before the trial judge suspends the normal
course of criminal proceedings and conducts a jury
inquiry into the "fact of sanity" there must come to
"reasonable ground to doubt (the accused's) sanity."
The court has discretion to determine if the
underlying factual basis said to exist does in fact
exist, and whether such factual basis constitutes
Brinks v. Alabama, 465 F.2d 446, 450,
(5th Cir. 1972), cert. denied, 409 U.S. 1130, 93
S.Ct. 940, 35 L.Ed. 2d 263 (1972).
"Where the trial court finds that there are no
reasonable grounds to doubt the accused's sanity,
the standard of appellate review is whether the
trial judge abused his discretion. Pace v. State,
284 Ala. 585, 226 So. 2d 645 (1969); Wheeler v.
State, 47 Ala. App. 457, 256 So. 2d 197 (1971).
"In determining whether a reasonable doubt as to
investigation and hear evidence. Thomas v. State,
357 So. 2d 1015, 1018 (Ala. Crim. App. 1978)."
Beauregard v. State, 372 So. 2d 37, 43 (Ala. Crim. App. 1979).
"In Ake v. Oklahoma, the United States Supreme
Court held that 'when a defendant demonstrates to
the trial judge that his sanity at the time of the
offense is to be a significant factor at trial, the
State must, at a minimum, assure the defendant
access to a competent psychiatrist who will conduct
an appropriate examination....'
Ake v. Oklahoma,
470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed. 2d 53
Burgess v. State, 962 So. 2d 272, 291 (Ala. Crim. App. 2005).
To show legal insanity at the time of the offense, Glass
would have to demonstrate that he "suffered from a mental
disease or defect preventing him from appreciating the nature
and quality or wrongfulness of his acts."
Morris v. State,
956 So. 2d 431, 442 (Ala. Crim. App. 2005); Flowers v. State,
922 So. 2d 938, 956 n.4 (Ala. Crim. App. 2005); § 13A-3-1(a),
Ala. Code 1975.
In this case, the trial court held a hearing on Glass's
evidence tending to show that in the week before the incident
made the basis of this prosecution, he had exhibited odd
His wife had left him, and he believed she was
seeing another man.
As a result, he was depressed and upset.
Glass believed he saw his wife in various vehicles as he rode
He also believed that she would be at a certain
restaurant one night, so he watched the cars in the restaurant
parking lot, believing his wife to be in the cars or with
people who were leaving the restaurant.
Phillips said that a few days after Glass had her drive
him to the restaurant, she made an appointment for him to see
a physician, Dr. Wompler.
She testified that Dr. Wompler
prescribed Ativan, an anti-anxiety medication, for Glass, but
Wompler did not testify at the hearing, but the prosecutor
offered into evidence a letter written by Dr. Wompler stating
he first prescribed anti-anxiety medication on March 12, 2007.
received into evidence.
From this evidence, the trial court could have found that
reasonable grounds to doubt his sanity or competency at the
time of the offense.
Glass's evidence indicated that he acted
intentionally struck Hunt's truck.
Evidence regarding his
behavior the night of the incident, however, tends to show
that he was not acting oddly, but that he became agitated when
his wife telephoned to taunt him about his Tahoe.
He saw a
truck pass his house a number of times and believed his wife
was in it, so he went after the truck to confront her.
Glass presented no medical or expert testimony that would
indicate that he suffered from a mental disease or defect and
that he was unable to appreciate the nature and quality of the
wrongfulness of his act.
Based on the evidence in the record, we find that the
trial court did not abuse its discretion in finding that Glass
failed to demonstrate that there were reasonable grounds to
doubt his sanity at the time of the offense and that Glass's
sanity at the time of the offense would not be a significant
factor at trial.
complete defense in this case because, he says, in denying his
motion for a mental examination, the trial court improperly
made the ultimate decision as to whether he in fact suffered
from a mental disease or defect rather than deciding whether
a mental examination was proper.
As mentioned above, "'[a] defendant does not have a right
to a mental examination whenever he requests one, and, absent
such a right, the trial court is the screening agent of such
Robinson v. State, 428 So. 2d 167 (Ala. Crim. App.
Ingram v. State, 779 So. 2d 1225, 1270 (Ala. Crim.
App. 1999)(quoting Cliff v. State, 518 So. 2d 786, 790 (Ala.
Crim. App. 1987)).
Here, the trial court properly acted as
insufficient evidence from which to find a reason to doubt
Glass's sanity at the time of the offense.
We have already
determined that the trial court did not abuse its discretion
in denying Glass's request for a mental examination.
issue is without merit.
Glass contends that he was improperly convicted of and
although, he says, he committed only a single offense and that
prohibition against double jeopardy.
Because the convictions
violate double-jeopardy principles, Glass claims, the trial
court did not have
jurisdiction to sentence him for each
The Alabama Supreme Court has previously decided this
issue adversely to Glass.
"In [Ex parte] McKinney, [511 So. 2d 220] [(Ala.
1987)], the Alabama Supreme Court adopted the
position of the majority of states that allow for
multiple convictions when more than one person is
injured as the result of a single act.
holding, the McKinney court stated:
"'Adoption of the majority view would place
Alabama among those states that have
recognized that punishment for a criminal
act should be commensurate with the act
itself and the injury caused by that
constitutional obstacles to the adoption of
principle that a single criminal act that
causes injury to more than one person may
constitute more than one offense and may
support more than one prosecution and
"'... [W]e also hold that henceforth §§
13A-1-8(b) and 15-3-8 will allow more than
one prosecution and conviction when more
than one person is injured as a result of
a single criminal act.'
"McKinney, supra, at 225."
Sims v. State, 663 So. 2d 975, 978 (Ala. Crim. App. 1994).
The Alabama Supreme Court has also explicitly recognized that
the majority view adopted in McKinney also permits multiple
McKinney, 511 So. 2d at
Glass's argument in this case ignores the fact that he
placed the well-being of four people at risk when he rammed
the pickup truck with his sport-utility vehicle.
therefore, under Ex
parte McKinney, 511 So. 2d 220 (Ala.
convictions did not violate double-jeopardy principles, the
trial court properly sentenced him for each of the four counts
of reckless endangerment for which he was convicted.
evidence to sustain his conviction for criminal mischief in
the second degree.
Specifically, Glass contends that the
State failed to prove that the amount of damages incurred in
the incident reached the threshold amount for a conviction of
second-degree criminal mischief.
"A person commits the offense of criminal
mischief in the second degree if, with intent to
damage property, and having no right to do so or any
reasonable ground to believe that he or she has such
a right, he or she inflicts damages to the property
in an amount which exceeds five hundred dollars
($500) but does not exceed two thousand five hundred
§ 13A-7-22(a), Ala. Code 1975.
During the trial of this case, Ronnie Hunt, the owner of
the pickup truck, testified that he was going to have to pay
objected on the grounds of hearsay after the answer was given
but did not move to strike the response; thus, any error in
vehicle was not preserved.
On appeal, Glass argues that evidence of repair cost is
property under § 13A-7-20-23, Ala. Code 1975.
Glass did not present this specific argument to the trial
A motion for a new trial will not preserve for appellate
review issues that arose during trial that were not objected
to at the time they arose.
See Trawick v. State, 431 So. 2d
574, 578-79 (Ala. Crim. App. 1983) ("The grounds urged on a
motion for a new trial must ordinarily be preserved at trial
by timely and specific objections."). The motion for a new
trial was denied on the day it was filed, apparently without
Glass was convicted and adjudged guilty of five separate
Class A misdemeanors.
The trial court sentenced him to 5
consecutive 12-month terms in the county jail. However, the
court then treated the 5 separate sentences as one 5-year
sentence and suspended all but 12 months of the sentence under
There is no authority allowing the court to aggregate
separate misdemeanor sentences and treat them as one sentence
in the aggregate under the split-sentence act.
If a sentence is outside the limit provided by statute
then no objection has to be made to preserve this issue for
Ex parte Brannon, 547 So. 2d 68 (Ala. 1989).
required to notice
illegal sentence and remand to the
sentencing court for a proper sentence.
See, e.g., Kennedy v.
State, 929 So. 2d 515, 523 (Ala. Crim. App. 2005); and Mosley
v. State, [Ms. CR-06-0557, August 31, 2007] ___ So. 2d ___
(Ala. Crim. App. 2007).
Based on the foregoing, Glass's convictions are affirmed.
However, because his sentence is illegal, we remand this cause
consistent with this opinion.
Due return shall be made to
this Court within 35 days of the release of this opinion.
AFFIRMED AS TO CONVICTIONS; REMANDED AS TO SENTENCING.
Baschab, P.J., and McMillan and Wise, JJ., concur.
J., concurs in the result.