Joseph Renney v. State of Alabama
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REL: 03/05/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2009-2010 CR-08-0891 Joseph Renney v. S t a t e o f Alabama A p p e a l from H a l e C i r c u i t C o u r t (CC-05-23 and CC-05-50) WISE, P r e s i d i n g The capital Judge. appellant, offense Joseph o f murder Renney, during a was indicted sexual abuse, murder, s e x u a l t o r t u r e , and f i r s t - d e g r e e s e x u a l abuse. convicted of manslaughter, a violation of § f o r the felonyHe was 13A-6-3(a)(1), CR-08-0891 Ala. Code 1975; 65.1(a)(1), Ala. violation court in of § Code on sexual the abuse trial, Crim. The State lived the 2005, could she take not drive would be her there her g o i n g t o go doctor and felt again years in prison in prison law. on on the a new for See a trial twenty motion he Renney and years. April Rule her 24.4, had testified said that b e c a u s e she better. 2 presented her that, on that the the v i c t i m wanted explained that been d r i n k i n g , K i k e r However, and told that he victim, 2005. and When the It also 25, mother, h u r t i n g and shortly. Renney t e l e p h o n e d to the on doctor. because of that telephoned the a abuse, The life years 13A-6- followed. victim's s t o m a c h was § 1975. terms of filed f o r about f i v e the to ten evidence Renney her Code operation v i c t i m died Kiker, 19, to Ala. conviction, appeal of f i r s t - d e g r e e sexual Renney by presented v i c t i m s a i d her him This together violation serve concurrent denied P. that Joyce March to conviction. R. evidence and manslaughter w h i c h was A.H., 1975; a t o r t u r e c o n v i c t i o n , and sexual Ala. torture, 13A-6-66(a)(1), s e n t e n c e d him prison the sexual had she the had testified v i c t i m was he said that not a b o w e l movement CR-08-0891 Kiker testified 2005, and t o l d her that ("DCH") a n d t h a t saw that before nurses her from made victim's blood pressure victim's blood pressure Kiker had testified him kept surgery went that the then She saw her testified from room After that surgery because he the left, the suffered She a l s o illnesses from testified before manic that she and t h a t she that the f o r approximately three s h e was h o s p i t a l i z e d . testified that she o b s e r v e d b r u i s e s v i c t i m h a d t o l d h e r on p r e v i o u s the v i c t i m had medication. Hospital She f u r t h e r t e s t i f i e d and body a f t e r h e r s u r g e r y . cautioned up. victim and b i p o l a r d i s o r d e r . weeks b e f o r e the 23, b a c k down. v i c t i m had been o f f of her m e d i c a t i o n that City and Kiker leave going t o o k m e d i c a t i o n t o t r e a t them. face at Druid surgery. been h o s p i t a l i z e d f o r those Kiker h e r on M a r c h i n t h e room a f t e r t h e v i c t i m r e t u r n e d the depression telephoned s h e was g o i n g t o h a v e e m e r g e n c y s u r g e r y . a f t e r she r e t u r n e d R e n n e y was Renney t h e v i c t i m was the v i c t i m b r i e f l y again and that fallen She a l s o occasions the v i c t i m about d r i n k i n g while Kiker further testified 3 that testified that a l o t of times, on t h e v i c t i m ' s she had and t h a t s h e was that the fallen, she had taking her the v i c t i m d i d not CR-08-0891 mention a n y t h i n g t o h e r about h a v i n g f a l l e n and s u s t a i n i n g injuries f o r w h i c h s h e was h o s p i t a l i z e d R a t h e r , she t e s t i f i e d the to victim Afterward, licensed what interviewed the v i c t i m the v i c t i m talked had and said. ultimately Robinson testified that s h e was working p r a c t i c a l n u r s e i n t h e emergency room a t H a l e Hospital on M a r c h emergency room. had b r u i s e s testified that that she gotten had further 22, 2005, At that worse trauma to trauma to her face. condition the v i c t i m the v i c t i m worsened the v i c t i m started bowel with was gas and l i p . up a i n the l e f t short a n d s h e was t r a n s f e r r e d 4 into that time the blood Robinson and blood. diagnosed a County to the hospital she t e s t i f i e d f o r only as was v o m i t i n g throwing the v i c t i m Finally, hospital cheek, came h a d f a l l e n two d a y s b e f o r e and that the small that time, took the v i c t i m testified at when on h e r f o r e h e a d , Renney reported was about She Renney. Cynthia and officers officers fall. a b o u t two weeks a f t e r h e r s u r g e r y , t o l d h e r what had c a u s e d t h e i n j u r i e s . law enforcement arrested that, as a r e s u l t o f a the as and that She having colon and the v i c t i m because t o DCH. her CR-08-0891 Donna Dowdy testified that she was working i n the e m e r g e n c y r o o m a t H a l e C o u n t y H o s p i t a l on M a r c h 2 2 , 2 0 0 5 , when t h e v i c t i m came i n f o r t r e a t m e n t . that and time, that further chest, the victim she s a i d testified that she down asked some that Mercer stairs She on h e r f a c e , and other that parts over f o r the and s t a t e d and t h a t that she had Finally, Dowdy t o be d e l u s i o n a l o r time. that manager h e r mother before. d i d not appear testified case testified Renney answered questions a few days at that to the hospital victim, that the victim the victim t h e trauma Mercer stairs. had b r u i s e s she had been d r i n k i n g , of her medication admitted arms they testified drank a l o t , that Leigh the the v i c t i m some vomiting t h a t Renney accompanied t h e v i c t i m t o t h e She a l s o when testified was down and a n d t h a t he a p p e a r e d t o b e n e r v o u s a n d h o v e r i n g victim. fallen off o f nausea that, at and back. hospital victim was c o m p l a i n i n g she had f a l l e n Dowdy t e s t i f i e d the She a l s o t e s t i f i e d s h e was a n u r s e a t DCH when and t h a t she the victim was i n March 2005. When s h e i n t e r v i e w e d and Renney were i n t h e room w i t h h e r . the victim had b r u i s e s o f h e r body. 5 When on h e r f a c e a n d she asked about how CR-08-0891 she incurred the injuries, respond, but looked the conversation, Mercer the testified victim the a t Renney. and t h a t Renney she d i d not during she had f a l l e n steps. then asked if d i d n o t answer s h e was a f r a i d , h i m t o move any more q u e s t i o n s that, to p e r f o r m emergency surgery talked stated that about what he n e e d e d Mercer t e s t i f i e d Renney he w a n t e d that, later mother o f Human R e s o u r c e s Afterward, Renney t o l d have facility injured about Mercer surgery, testified she told her that some done that that the t h e y were going Around that time, f o r t h e v i c t i m and order. afternoon, they she advised had contacted the officers. he h a d b e e n d r i n k i n g , t h a t and that he had contacted he a help. that, her the and law enforcement the v i c t i m , getting Afterward, she was. that on t h e v i c t i m . Department may was a n d , when s h e a s k e d a do n o t r e s u s c i t a t e and the v i c t i m ' s he a f t e r she s t o p p e d q u e s t i o n i n g v i c t i m , D r . W a l l a c e came i n a n d e x p l a i n e d Renney t o h e r and t o because the v i c t i m indicated that Mercer t e s t i f i e d up some moved c l o s e m a k i n g h e r u n c o m f o r t a b l e , b u t he d i d n o t move. victim initially H o w e v e r , a t some p o i n t she s a i d t h a t that victim sometime that 6 after Renney had the v i c t i m injured had her. CR-08-0891 Specifically, she stick butt up her testified and Finally, she testified and not appear did that the her and hurt that to the be v i c t i m " s a i d he beat v i c t i m was delusional her." (R. alert when stuck and she a 351.) oriented made that statement. C h r i s t y Bush t e s t i f i e d intensive care a f t e r her surgery. that u n i t a t DCH surgery and a colostomy, that she her abdomen, that that She further testified her arms, the Bush testified and that and the backs that could of testified that, she heart the blunt had and rate room. victim, the did. care of her, that Renney calmed down. at victim rather She also testified than comfort 7 her. on h e r Bush was take to bowel. face, became went up out so to step room, she going to her pressure the that trauma victim a s k e d him he laparotomy back. blood She and bruises that and from perforated her noticed care force a f t e r Renney l e f t victim the she legs, i n her exploratory the v i c t i m had her that an trauma diagnosis t h a t the suffered trauma that her assess had a nurse i n the t h e v i c t i m was v i c t i m had when R e n n e y a r r i v e d i n h e r she that was also t e s t i f i e d the anxious was She and she further reassured and the seemed t o the victim glare CR-08-0891 Bush t e s t i f i e d asked i f Renney that, while had i n j u r e d the v i c t i m was i n t u b a t e d , h e r and t h a t the v i c t i m once and squeezed h e r hand once t o i n d i c a t e also asked i f he h a d h u r t response. Bush further h e r , and t h e v i c t i m testified that, after e x t u b a t e d , she asked i f Renney had i n j u r e d indicated victim that said he that Officer had. Department t e s t i f i e d of surgery Although nodded and to indicate the h e r i f s h e knew not speak, that to spoke Poleon to the v i c t i m the v i c t i m and t h e v i c t i m stated family after had handle that the injured her. and then l e tthe v i c t i m rest members again Police she g o t o u t hesitated for and then a few that days he spoke later. to the v i c t i m Based on a while. had other a shovel handle was i n a p u d d l e the v i c t i m had t o l d again the information v i c t i m p r o v i d e d , he w e n t t o R e n n e y a n d v i c t i m ' s located was t o Renney. testified and who the v i c t i m she d i d . her She t h e same Greensboro he saw t h e v i c t i m talk speak day of he Poleon next that he h a d . gave her, she blinked h e r and beat h e r . to Afterward, officers Poleon and asked she c o u l d went Specifically, Renney had h u r t Maurice that she r e s i d e n c e and him about. o f w a t e r when he r e c o v e r e d i t . 8 the The CR-08-0891 Dr. Patrick testified on Bruce behalf the v i c t i m treating psychiatrist condition Atkins testified about that taking excessive they the v i c t i m place, records, what and p e r s o n testified communicating adequately particularly during the broad or that t h a t she and testified mood that swings, paranoia. health records she drank and compliant alcohol records in from and t e s t i f i e d t h a t t h e y showed and t h a t Based that was Atkins mental he h a d disorder reviewed the medical and surgery she He t e s t i f i e d s h e was n o t a l w a y s and instructions. Atkins understood showed t h a t that i n 1 9 9 6 when h e r of grandeur h a d t o be r e o r i e n t e d situation, understanding weeks in the victim's He a l s o hospitalization and s t a t e d states. result her medication amounts. psychiatrist, bipolar/manic-depressive and d e l u s i o n s reviewed clinical was o u t o f t o w n . could hallucinations, that three s h e was p r o n e t o p s y c h o t i c the her f o r about been d i a g n o s e d w i t h that a of the defense treated had Atkins, repeatedly and on h i s review was not f o r a few days a f t e r times injuring her. 9 when time, s h e was n o t c a p a b l e o f he d i d n o t b e l i e v e doing as t o she of the the v i c t i m capable of her surgery and accused Renney of CR-08-0891 Dr. that James he was Alabama Lauridson, a previously Department of forensic the chief April 27, Lauridson report 2005, but further d i d not complete 2005 r e v i e w i n g the after he h a d made. and final d i a g n o s i s as colon, abdominal Lauridson counsel listed trauma, the and testified medical He cause listed c o n t a c t e d him complete records, as abdominal also the suffering him review including to Dr. bowel that or another laparotomy i n which c a u s i n g the organ, he 10 defense victim's Wallace's surgical W a l l a c e had d i a g n o s e d or air in Because there the the was had occurred i n an exploratory performed o p e n e d t h e abdomen t o t r y t o a i r t o be the the of p e r f o r a t i o n Wallace of homicide. trial, pnuemoperitoneum, some t y p e report c o m p l i c a t i o n s of the c a v i t y , w i t h a h i s t o r y of a f a l l . a concern w h a t was from diagrams, traumatic rupture before asked autopsy s i g n e d the autopsy as body report. the notes, the testified autopsy t h e manner o f d e a t h as that, and also completed of death n o t e s , w h i c h he h a d n o t h a d b e f o r e . victim the that Shores sigmoid for the autopsy of the v i c t i m ' s and p h o t o g r a p h s the testified examiner He testified i n October listed medical Forensic Sciences. t h a t Dr. A r t Shores performed on pathologist, i n the v i c t i m ' s determine abdomen. CR-08-0891 Lauridson testified that Wallace found that resulted i n p e r i t o n i t i s , w h i c h i s an of He also the small the abdominal staining colon. there and exudate Lauridson was a large l e a k a g e and or but had and been amount of the and a pathologist removed, that examined and with he colostomy that that later disease Lauridson peritonitis infarctions, on of and that acute be divertic bodies that perforate on the consistent with for a perforation the the of t h a t he the a outpouches the bowel. 11 the the that the colon that not find He also did find any signs by of colon. victim He also ruptured of of t h a t were p r e p a r e d the peritonitis. segment colon. d i d not of that by of pathologist portion caused a victim, portion portion testified can that removed examined s l i d e s hospital pathologist complications the one. Wallace on of indicated s t a i n i n g t h a t was that areas staining records find performed testified or that not wrong injury bowel fluid around a l l observed multiple testified anything the testified could Lauridson hospital on infection that Wallace checked thoroughly injury, colon organs. peritoneum the Lauridson died from testified appendix, colon, or testified that bowel foreign that i t CR-08-0891 c o u l d be c a u s e d b y s p o n t a n e o u s b a c t e r i a l p e r i t o n i t i s , w h i c h i s sometimes Based seen on i n people the victim's abnormal liver who have history function of alcoholic abusing liver alcohol t e s t s , he t e s t i f i e d that b a c t e r i a l p e r i t o n i t i s c o u l d have been c o n s i d e r e d cause of the p e r i t o n i t i s Lauridson impossible the Based testified that f o r the shovel victim's evidence i n this colon. He a l s o his further and some spontaneous as a p o s s i b l e case. i t would have been physically h a n d l e t o h a v e c a u s e d t h e damage t o of a p e r f o r a t i o n on disease. testified that to the v i c t i m ' s review, peritonitis, with of or testified that was c o m p l i c a t i o n s On cross-examination, described cavity, gotten observing which an indicated of trauma, Lauridson anaerobic that victim did not have advanced s p o n t a n e o u s p e r i t o n i t i s was v e r y admitted that t h e most admitted smell bacteria into the peritoneum c a v i t y . likely 12 and t h a t colon. he of acute undetermined. d e a t h was no e v i d e n c e was n o t a n y rectum Lauridson believed the proper f i n a l diagnosis there He a l s o liver unlikely. cause that i n the from t h e manner Shores peritoneum the bowel admitted disease had that the and Lauridson that further of the p e r i t o n i t i s was CR-08-0891 perforation of the occurred the bowel, in quickly. ever bowel However, he and that, i t would have maintained told her him that rectum and he same s t o r y Deborah ... pushed several Dobb, a the handle and healing had fairly was not testified tested negative. rounded Finally, she of she forensic stick pushed." (R. him told pushing a and the nurses of b l o o d , found for the presence handle, two that but with the Alabama that she examined testified she explained that and biologist Sciences, for evidence the victim also t e s t i f i e d pushed that Dobb f u r t h e r t e s t i f i e d end He forcefully and that them spoke to the times. of F o r e n s i c shovel happened. testified Department also nick a perforation t h a t he R e n n e y " e n d e d up Finally, 587.) that small located. s e v e r a l t i m e s a b o u t what had up a started that In r e b u t t a l , Poleon t e s t i f i e d she i f DNA, stains near of blood, that she she was moisture and semen. the but jagged the detected not will able She test DNA to on end was the type i t . c a u s e DNA to break down m o r e q u i c k l y . Dr. Kenneth Snell, Alabama Department the chief of F o r e n s i c 13 medical Sciences, examiner performed for a the cursory CR-08-0891 review the of the report extending colon also not autopsy report indicated there from the p e c t i n a t e approximately testified see that in this that, evidence Snell three of of the through the fibrosis that and the in patients of the or colon. He Shores presented, he victim testified sigmoid saw peritonitis an ulcer released who l i v e r o r who a ruptured stated that had that bruise i n t o the contusions, can be he that stomach caused eroded contents did not there suffered a fall However, he testified victim's body were not could that were not spontaneous any the bruises consistent 14 with on such or spleen, a surgical the evidence indications that to the on the dialysis, peritonitis. cause a b r u i s e broke cirrhosis a i r through Based a bacterial have a f u n c t i o n i n g appendix. by into spontaneous s u f f e r from hepatic do and a b d o m i n a l p e r i t o n e u m c a v i t y c a u s e d by procedure, the or and opening of the p e r i t o n e u m to o u t s i d e a n i c k i n the contusion that rectum peritoneum, trauma to the mucosal area, peritonitis testified t h a t d i v i d e s the inches intestines, mucosa a He a perforation. testified rupture was line although case. the a Snell intestines. rest fall. of the CR-08-0891 Snell small testified hole i n the examined. mucosal He than one in pathologist could of the testified the mentioned area. the portion also damage previously that colon three-inch or that Snell was removed there that that could have of contusion area damage c o u l d further have m i s s e d in that testified and been that have been was area the a more of s t a i n i n g W a l l a c e o b s e r v e d s u g g e s t e d t h a t t h e r e might have been a perforation for seepage testified or that Snell have caused an seepage several believed the put abrasion that mucosa w i t h Based abdominal examined been of i t . he from without testified area across complications could an to the the causing the the handle allowed observations, cause handle and victim's mucosa an his that of he death was trauma. shovel in on trauma could rectum that actual testified and would could have perforation. have that caused i t have allowed He also abrasions in places. Snell testified changed i f a d d i t i o n a l testified that autopsy information t h a t , i f Lauridson t h a t c a u s e d him reports be amended becomes a v a i l a b l e . obtained additional t o c h a n g e h i s o p i n i o n , he 15 may should He or also information have notified CR-08-0891 the department Finally, he disclosure so testified to the to that actions Lauridson did could not be make taken. such a department. Renney argues evidence appropriate support that his the State did not present sufficient convictions. "In deciding whether there is sufficient e v i d e n c e t o s u p p o r t t h e v e r d i c t o f t h e j u r y and t h e j u d g m e n t o f t h e t r i a l c o u r t , t h e e v i d e n c e must be reviewed in the light most favorable to the prosecution. Cumbo v. S t a t e , 368 So. 2d 871 ( A l a . C r . App. 1 9 7 8 ) , c e r t . d e n i e d , 368 So. 2d 877 ( A l a . 1979). C o n f l i c t i n g evidence presents a jury q u e s t i o n n o t s u b j e c t t o r e v i e w on a p p e a l , provided the s t a t e ' s evidence e s t a b l i s h e s a prima f a c i e case. Gunn v. S t a t e , 387 So. 2d 280 ( A l a . C r . A p p . ) , c e r t . d e n i e d , 387 So. 2d 283 ( A l a . 1980) . The trial court's d e n i a l of a motion f o r a judgment of a c q u i t t a l must be r e v i e w e d by d e t e r m i n i n g whether there e x i s t e d l e g a l evidence before the j u r y , at the t i m e t h e m o t i o n was made, f r o m w h i c h t h e j u r y by fair inference could have f o u n d t h e appellant guilty. Thomas v. S t a t e , 363 So. 2d 1020 (Ala. Cr. App. 1978). In applying this standard, the appellate court will determine only i f legal e v i d e n c e was p r e s e n t e d f r o m w h i c h t h e j u r y c o u l d have f o u n d t h e d e f e n d a n t g u i l t y b e y o n d a r e a s o n a b l e doubt. W i l l i s v. S t a t e , 447 So. 2d 199 ( A l a . C r . App. 1 9 8 3 ) ; Thomas v. S t a t e . When t h e e v i d e n c e raises questions o f f a c t f o r t h e j u r y and such evidence, i f believed, i s s u f f i c i e n t to sustain a c o n v i c t i o n , the d e n i a l of a m o t i o n f o r a judgment of a c q u i t t a l by t h e t r i a l c o u r t does n o t c o n s t i t u t e e r r o r . Young v. S t a t e , 283 A l a . 676, 220 So. 2d 843 ( 1 9 6 9 ) ; W i l l i s v. S t a t e . " 16 CR-08-0891 B r e c k e n r i d g e v. S t a t e , 628 So. 2d 1012, 1018 ( A l a . Crim. 1993). "'In d e t e r m i n i n g the s u f f i c i e n c y of the evidence to s u s t a i n t h e c o n v i c t i o n , t h i s C o u r t must a c c e p t as t r u e the e v i d e n c e i n t r o d u c e d by the S t a t e , a c c o r d t h e S t a t e a l l l e g i t i m a t e i n f e r e n c e s t h e r e f r o m , and c o n s i d e r t h e e v i d e n c e i n t h e l i g h t most f a v o r a b l e t o t h e p r o s e c u t i o n . ' F a i r c l o t h v. S t a t e , 471 So. 2d 485, 489 ( A l a . C r . App. 1 9 8 4 ) , a f f i r m e d , Ex p a r t e F a i r c l o t h , [471] So. 2d 493 ( A l a . 1 9 8 5 ) . II I "'"The r o l e o f a p p e l l a t e c o u r t s i s n o t t o s a y what t h e f a c t s a r e . Our r o l e , ... i s t o judge whether the evidence i s l e g a l l y s u f f i c i e n t t o a l l o w s u b m i s s i o n o f an i s s u e f o r d e c i s i o n to the j u r y . " Ex p a r t e Bankston, 358 So. 2d 1040, 1042 (Ala. 1978). An a p p e l l a t e c o u r t may interfere w i t h t h e j u r y ' s v e r d i c t o n l y where i t reaches "a clear conclusion that the f i n d i n g and j u d g m e n t a r e w r o n g . " K e l l y v. S t a t e , 273 A l a . 240, 244, 139 So. 2d 326 (1962). ... A verdict on conflicting e v i d e n c e i s c o n c l u s i v e on a p p e a l . Roberson v. S t a t e , 162 A l a . 30, 50 So. 345 ( 1 9 0 9 ) . " [ W ] h e r e t h e r e i s ample e v i d e n c e o f f e r e d b y the s t a t e to support a v e r d i c t , i t should n o t be o v e r t u r n e d e v e n t h o u g h t h e e v i d e n c e o f f e r e d by the defendant i s i n sharp conflict therewith and presents a s u b s t a n t i a l d e f e n s e . " F u l l e r v. S t a t e , 269 A l a . 312, 333, 113 So. 2d 153 ( 1 9 5 9 ) , c e r t . d e n i e d , F u l l e r v. A l a b a m a , 361 U.S. 936, 80 S. C t . 380, 4 L. Ed. 2d 358 (1960).' G r a n g e r [v. S t a t e ] , 473 So. 2d [1137,] 1139 [ ( A l a . C r i m . App. 1 9 8 5 ) ] . 17 App. CR-08-0891 "... ' C i r c u m s t a n t i a l e v i d e n c e a l o n e i s enough t o s u p p o r t a g u i l t y v e r d i c t o f t h e most h e i n o u s c r i m e , p r o v i d e d t h e j u r y b e l i e v e s beyond a r e a s o n a b l e doubt t h a t t h e a c c u s e d i s g u i l t y . ' W h i t e v. S t a t e , 294 A l a . 265, 272, 314 So. 2d 857, c e r t . d e n i e d , 423 U.S. 951, 96 S. C t . 373, 46 L. E d . 2d 288 ( 1 9 7 5 ) . ' C i r c u m s t a n t i a l evidence i s i n nowise c o n s i d e r e d i n f e r i o r e v i d e n c e a n d i s e n t i t l e d t o t h e same w e i g h t as d i r e c t e v i d e n c e p r o v i d e d i t p o i n t s t o t h e g u i l t of the accused.' C o c h r a n v. S t a t e , 500 So. 2d 1161, 1177 ( A l a . C r . App. 1 9 8 4 ) , a f f i r m e d i n p e r t i n e n t p a r t , r e v e r s e d i n p a r t on o t h e r g r o u n d s , Ex p a r t e C o c h r a n , 500 So. 2d 1179 ( A l a . 1 9 8 5 ) . " W h i t e v. S t a t e , 546 So. 2d 1014, 1017 ( A l a . C r i m . App. 1989). Also, "'[c]ircumstantial evidence i s not i n f e r i o r e v i d e n c e , a n d i t w i l l be g i v e n t h e same w e i g h t as d i r e c t e v i d e n c e , i f i t , along with the other evidence, is susceptible of a reasonable inference p o i n t i n g u n e q u i v o c a l l y to the defendant's g u i l t . Ward v. S t a t e , 557 So. 2d 848 ( A l a . C r . App. 1 9 9 0 ) . In reviewing a conviction b a s e d i n w h o l e o r i n p a r t on c i r c u m s t a n t i a l e v i d e n c e , t h e t e s t t o be a p p l i e d i s w h e t h e r the j u r y might reasonably f i n d t h a t the evidence excluded every reasonable hypothesis except t h a t of g u i l t ; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cumbo v. S t a t e , 368 So. 2d 871 . C r . App. 1 9 7 8 ) , c e r t . d e n i e d , 368 So. 2d 877 ( A l a . 1 9 7 9 ) . ' "Ward [ v . S t a t e ] , 610 So. 2d [1190,] 1191-92 C r i m . App. 19 9 2 ) ] . " 18 [(Ala. CR-08-0891 L o c k h a r t v. S t a t e , 715 So. 2d 895, 899 ( A l a . C r i m . App. 1997). Further, " ' [ i ] n t e n t , ... b e i n g a s t a t e o r c o n d i t i o n o f t h e mind, i s r a r e l y , i f e v e r , s u s c e p t i b l e of d i r e c t or p o s i t i v e p r o o f , and must u s u a l l y be i n f e r r e d f r o m the facts testified t o by w i t n e s s e s and the c i r c u m s t a n c e s as d e v e l o p e d by t h e e v i d e n c e . ' M c C o r d v. S t a t e , 501 So. 2d 520, 528-529 ( A l a . C r . App. 1 9 8 6 ) , q u o t i n g Pumphrey v. S t a t e , 156 A l a . 103, 47 So. 156 ( 1 9 0 8 ) . " F r e n c h v. S t a t e , 687 So. 2d 202, 204 ( A l a . C r i m . App. a f f ' d i n p a r t , r e v ' d i n p a r t on o t h e r g r o u n d s , (Ala. 1995), 687 So. 2d 205 1996). "'The q u e s t i o n o f i n t e n t i s h a r d l y e v e r c a p a b l e o f d i r e c t p r o o f . Such q u e s t i o n s a r e n o r m a l l y q u e s t i o n s f o r the j u r y . McMurphy v. S t a t e , 455 So. 2d 924 ( A l a . C r i m . App. 1 9 8 4 ) ; C r a i g v. S t a t e , 410 So. 2d 449 ( A l a . C r i m . App. 1 9 8 1 ) , c e r t . d e n i e d , 410 So. 2d 449 ( A l a . 1 9 8 2 ) . ' L o p e r v. S t a t e , 469 So. 2d 707, 710 ( A l a . C r . App. 1 9 8 5 ) . " O r y a n g v. S t a t e , "A person of § 642 So. commits 2d 989, the crime 994 A l a . Code 1994). of manslaughter i f : "(1) He r e c k l e s s l y another person " 13A-6-3(a), ( A l a . C r i m . App. causes the death 1975. "A p e r s o n a c t s r e c k l e s s l y w i t h r e s p e c t t o a r e s u l t o r t o a c i r c u m s t a n c e d e s c r i b e d by a s t a t u t e d e f i n i n g an o f f e n s e when he i s aware o f and consciously d i s r e g a r d s a s u b s t a n t i a l and u n j u s t i f i a b l e r i s k t h a t the result will occur or that the circumstance exists. The r i s k m u s t be o f s u c h n a t u r e a n d d e g r e e 19 CR-08-0891 that d i s r e g a r d thereof c o n s t i t u t e s a gross d e v i a t i o n from the standard of conduct that a reasonable person would observe i n the s i t u a t i o n . A p e r s o n who c r e a t e s a r i s k but i s unaware t h e r e o f solely by reason of v o l u n t a r y intoxication, as defined in subdivision (e)(2) of Section 13A-3-2, acts recklessly with respect thereto." § 13A-2-2(3), "A person Ala. Code commits 1975. the crime of sexual torture: "(1) By p e n e t r a t i n g t h e v a g i n a or anus or mouth of a n o t h e r p e r s o n w i t h an inanimate object by forcible compulsion w i t h the i n t e n t to s e x u a l l y t o r t u r e or to s e x u a l l y abuse." § 13A-6-65.1(a), A l a . Code "A p e r s o n c o m m i t s f i r s t degree i f : 1975. the crime of sexual abuse "(1) He s u b j e c t s a n o t h e r p e r s o n s e x u a l c o n t a c t by f o r c i b l e c o m p u l s i o n § 13A-6-66(a), A l a . Based reasonably with intent also an on the have recklessly victim's presented, by forcible s e x u a l l y t o r t u r e or reasonably caused death. the t h a t Renney p e n e t r a t e d object to " jury that, compulsion that Therefore, we 20 in could her. doing with It so, ultimately resulted conclude have the v i c t i m ' s anus s e x u a l l y abuse concluded injuries the 1975. evidence concluded inanimate to Code in that the could Renney in there the was CR-08-0891 sufficient evidence manslaughter and However, Crim. App. to sexual his convictions this State, court 665 held So. 2d that 1008, "[t]he definition abuse by reference sexually held 'any touching construed using an In degree torture by t o r t u r e or also that, convictions we abuse the are is a both App. Therefore, of offenses sexual 665 to a b u s e m u s t be So. 2d conclude case violate S t a t e , 876 Renney's intent So. We be or 1013. that first- of sexual that Renney's double jeopardy 2d 492 c o n v i c t i o n and set at offense and to contact,' whether d i r e c t l y included this the sexual intimate parts' should Gunter, a specifically of ' s e x u a l touching, lesser S t r a u g h n v. 'with is (Emphasis added.)." compelled facts See first-degree phrase definition object." principles. 2003). the t o mean a n y case, for the (Ala. abuse torture incorporates s e x u a l or o t h e r inanimate under using "[u]nder of the sexual sexual s e x u a l l y abuse.' literally this of 1012 sexual l e s s e r i n c l u d e d o f f e n s e of s e x u a l t o r t u r e , n o t i n g that for torture. i n G u n t e r v. 1995), support aside. (Ala. Crim. sentence for 1 B e c a u s e o f o u r h o l d i n g i n t h i s r e g a r d , we n e e d n o t a d d r e s s R e n n e y ' s c h a l l e n g e s t o h i s f i r s t - d e g r e e s e x u a l abuse conviction. 1 21 CR-08-0891 II. Renney a l s o not argues allow a juror However, he Therefore, did this that the t r i a l c o u r t e r r e d when i t d i d to continue to ask q u e s t i o n s of L a u r i d s o n . not argument See E x p a r t e M a l o n e , object on ground at trial. i s not p r o p e r l y before this court. to challenge the weight of the 12 S o . 3 d 60 this ( A l a . 2008). III. Finally, evidence Renney presented appears i n h i s case. However, " [ i ] n J o h n s o n v. S t a t e , 555 So. 2d 818, 819-20 ( A l a . C r . App. 1 9 8 9 ) , t h i s c o u r t n o t e d t h e d i f f e r e n c e i n ' s u f f i c i e n c y ' and ' w e i g h t ' as f o l l o w s : "'The weight of the evidence i s clearly a different matter from the sufficiency of the evidence. The s u f f i c i e n c y of the evidence concerns the q u e s t i o n of whether, " v i e w i n g the evidence in the light most favorable to the p r o s e c u t i o n , [a] r a t i o n a l f a c t f i n d e r c o u l d have found t h e d e f e n d a n t g u i l t y beyond a reasonable doubt." T i b b s v. F l o r i d a , 457 U.S. 31, 37, 102 S. C t . 2211, 2215, 72 L. Ed. 2d 652 (1982). A c c o r d , P r a n t l v. S t a t e , 462 So. 2d 781, 784 ( A l a . C r . App. 1984). " ' " ' I n c o n t r a s t , " [ t ] h e 'weight o f t h e e v i d e n c e ' r e f e r s t o 'a d e t e r m i n a t i o n [by] t h e t r i e r o f f a c t t h a t a g r e a t e r amount o f c r e d i b l e e v i d e n c e s u p p o r t s one s i d e o f an 22 CR-08-0891 i s s u e o r cause than t h e o t h e r . ' " T i b b s v. F l o r i d a , 457 U.S. a t 37-38 [102 S. C t . a t 2216] ( e m p h a s i s a d d e d ) . We have r e p e a t e d l y h e l d that i t i s not the province of t h i s court t o reweigh the evidence presented at trial. E.g., F r a n k l i n v. S t a t e , 405 So. 2d 963, 964 ( A l a . C r . A p p . ) , c e r t . d e n i e d , 405 So. 2d 966 ( A l a . 1 9 8 1 ) ; Crumpton v. S t a t e , 402 So. 2d 1081, 1085 ( A l a . C r . A p p . ) , c e r t . d e n i e d , 402 So. 2d 1088 ( A l a . 1 9 8 1 ) ; N o b i s v. S t a t e , 401 So. 2d 191, 198 ( A l a . C r . A p p . ) , c e r t . d e n i e d , 401 So. 2d 204 (Ala. 1981). "'[T]he credibility of w i t n e s s e s and t h e w e i g h t o r p r o b a t i v e f o r c e o f t e s t i m o n y i s f o r t h e j u r y t o j u d g e and determine.'" H a r r i s v. S t a t e , 513 So. 2d 79, 81 ( A l a . C r . App. 1987) ( q u o t i n g B y r d v. S t a t e , 24 A l a . App. 451, 136 So. 431 (1931)).['] "(Emphasis i n o r i g i n a l . ) See S m i t h v. S t a t e , 604 So. 2d 434 ( A l a . C r . App. 1 9 9 2 ) ; P e a r s o n v. S t a t e , 601 So. 2d 1119 ( A l a . C r . App. 1 9 9 2 ) ; C u r r y v. S t a t e , 601 So. 2d 157 ( A l a . C r . App. 1 9 9 2 ) . " Zumbado v. S t a t e ^ 6 1 5 So. 2d 1223, 1240-41 1993). We will not invade reweigh the evidence i n t h i s ( A l a . Crim. the province of the case. jury App. and Therefore, to the extent Renney c h a l l e n g e s t h e w e i g h t o f t h e e v i d e n c e , h i s a r g u m e n t i s not w e l l - t a k e n . For the above-stated reasons, we affirm Renney's c o n v i c t i o n s and s e n t e n c e s f o r m a n s l a u g h t e r and s e x u a l t o r t u r e , but reverse h i s conviction s e x u a l abuse. and sentence for first-degree A c c o r d i n g l y , we remand t h i s c a s e f o r t h e t r i a l 23 CR-08-0891 c o u r t t o s e t a s i d e Renney's c o n v i c t i o n and s e n t e n c e f o r f i r s t degree s e x u a l abuse. The t r i a l c o u r t s h a l l t a k e a l l n e c e s s a r y a c t i o n t o s e e t h a t t h e c i r c u i t c l e r k makes due r e t u r n t o t h i s c o u r t a t t h e e a r l i e s t p o s s i b l e t i m e a n d w i t h i n 42 d a y s the release of this opinion. AFFIRMED AS TO CONVICTIONS TORTURE; REVERSED after AND REMANDED FOR MANSLAUGHTER AND WITH INSTRUCTIONS CONVICTION FOR FIRST-DEGREE SEXUAL ABUSE. W e l c h , Windom, K e l l u m , and Main, J J . , concur. 24 SEXUAL AS TO
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