Timothy T. Reck v. State of Alabama
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REL: 12/17/2010 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, 2010-2011 CR-09-1411 T i m o t h y T. Reck v. S t a t e o f Alabama Appeal KELLUM, Code of Court Judge. The counts from B a l d w i n C i r c u i t (CC-05-625) appellant, of assault Timothy i n the f i r s t 1975, a n d one c o u n t § 13A-6-22, T. A l a . Code Reck, degree, of assault was c o n v i c t e d o f two s e e § 13A-6-20, A l a . i n thethird 1 9 7 5 . The c i r c u i t degree, see court sentenced CR-09-1411 Reck t o 143 m o n t h s ' i m p r i s o n m e n t f o r e a c h c o n v i c t i o n and assault Reck t o 12 m o n t h s ' i m p r i s o n m e n t f o r t h e conviction. sentences to Victims The were to run pay a circuit total evidence pertinent of $600 On in third-degree ordered that court further fines, $250 and presented facts. court c o n c u r r e n t l y . The Compensation Fund, The first-degree-assault court trial indicated ordered the Crime costs. at to the October 30, 2004, the Donna following Loving was r e t u r n i n g to Birmingham from a shopping trip in Foley with her two old at and sons, Taylor, Jordan, who was who two was years a Dodge D u r a n g o p i c k - u p center car console seat. driving While Loving t r u c k ; her to were airlifted time. down a her to a her road, road son local time, L o v i n g was laid younger county the older the o l d e r son had sleep while driving and years o l d at the a Dodge t r u c k , c r o s s e d vehicle. and t o go eight and son Reck, driving over was who the in a was T-boned Loving's Jordan sustained injuries hospital. Loving underwent s e v e r a l s u r g e r i e s w h i l e i n the h o s p i t a l to r e p a i r broken bones in both legs and injuries Loving t e s t i f i e d diabetic, to her that Jordan, suffered "really bad" 2 left elbow. who i s an cuts from insulin-dependent a l l the shattered CR-09-1411 glass had i n the vehicle. a gash almost left (R. 55.) on t h e b a c k of h i s head cut o f f . Jordan shoulder that was Loving s t a t e d that Jordan site t o remove a n i c k s " on h i s f a c e On c r o s s - e x a m i n a t i o n , keloid Reck consented blood taken content further testified 1 from Loving testified resulting had shot." (R. 56.) that Jordan could very of the accident because of high blood-sugar levels. t e s t . B l o o d was t a k e n Reck indicated was i n Reck's that .295 g r a m s from Reck Reck's blood-alcohol p e r 100 m i l l i l i t e r s f o r a f o r e n s i c t o x i c o l o g i s t w i t h t h e Alabama of Forensic Sciences, A keloid that Jordan two h o u r s a f t e r t h e a c c i d e n t . An a n a l y s i s o f t h e ethanol. K i r t Harper, ethanol at the f r o m t h e g l a s s t h a t make i t a p p e a r to a blood at the time Department inches i n had developed i n the face with a b i r d and Jordan's approximately cut to h i s two t o t h r e e that 1 w e l l h a v e k i d n e y damage a s a r e s u l t trauma e a r was was g o i n g t o h a v e t o h a v e s u r g e r y o n Loving a s t h o u g h he was " s h o t the Jordan o f g l a s s , l e a v i n g a s c a r on h i s s h o u l d e r . of the injury. "little and t h a t h i s l e f t approximately from a p i e c e shoulder explained that also sustained a significant length his Loving blood was i s a raised testified three that and a h a l f the l e v e l times growth of f i b r o u s scar 3 of t h e .08 tissue. CR-09-1411 level that constitutes d r i v i n g under the i n f l u e n c e u n d e r A l a b a m a l a w . R e c k was in the first degree and one count of alcohol two c o u n t s o f charged with of assault assault i n the third degree. R e c k ' s c a s e was rested law, the and t h e c o u r t the j u r y first assault sole -- first contends Reck g u i l t y that degree ( T a y l o r ) . raised sufficient by Reck State on evidence -- as i t r e l a t e s the o f two counts and Jordan) f i n d i n g Reck g u i l t y degree had had i n s t r u c t e d t h e j u r y on t h e a p p l i c a b l e (Donna L o v i n g issue presented verdict the degree i n the t h i r d The State found t r i e d before a jury. After both sides This o f one to Jordan. presented demonstrating that Jordan sustained a n d one appeal appeal to of assault the the jury's of a s s a u l t Specifically, insufficient in Reck evidence a serious physical injury. "'"In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must a c c e p t as t r u e a l l e v i d e n c e i n t r o d u c e d by t h e State, accord the State a l l l e g i t i m a t e inferences t h e r e f r o m , and c o n s i d e r a l l e v i d e n c e i n a l i g h t most favorable to the prosecution."' B a l l e n g e r v. S t a t e , 720 So. 2d 1033, 1034 ( A l a . Crim. App. 1 998), quoting F a i r c l o t h v . S t a t e , 471 4 8 5 , 488 ( A l a . C r i m . A p p . 1 9 8 4 ) , a f f ' d , 471 S o . 2 d 493 ( A l a . 1 9 8 5 ) . '"The t e s t u s e d i n d e t e r m i n i n g t h e s u f f i c i e n c y o f evidence to s u s t a i n a c o n v i c t i o n i s whether, viewing the 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 to the 4 of followed. i s whether support count count in CR-09-1411 prosecution, a r a t i o n a l f i n d e r of f a c t c o u l d have found the defendant guilty beyond a reasonable d o u b t . " ' N u n n v . S t a t e , 697 S o . 2 d 4 97 , 498 ( A l a . C r i m . A p p . 1 9 9 7 ) , q u o t i n g O ' N e a l v . S t a t e , 602 So. 2 d 4 6 2 , 464 ( A l a . C r i m . A p p . 1 9 9 2 ) . '"When t h e r e i s l e g a l e v i d e n c e f r o m w h i c h t h e j u r y c o u l d , by fair inference, find the defendant guilty, the trial c o u r t s h o u l d s u b m i t [the case] t o t h e j u r y , and, i n such a case, t h i s court w i l l not d i s t u r b the t r i a l court's d e c i s i o n . " ' F a r r i o r v . S t a t e , 728 So. 2d 691 , 696 ( A l a . C r i m . App. 1 9 9 8 ) , q u o t i n g Ward v. S t a t e , 557 So. 2 d 8 4 8 , 850 ( A l a . C r i m . App. 1990). '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 w h a t t h e f a c t s a r e . Our r o l e ... i s to judge whether the evidence i s l e g a l l y s u f f i c i e n t to allow submission o f an i s s u e f o r d e c i s i o n [ b y ] t h e j u r y . ' E x p a r t e B a n k s t o n , 358 So. 2 d 1 0 4 0 , 1042 ( A l a . 1978)." Gavin v. cert. denied, State, State, 610 person while So. 891 So. 2d So. Section 891 1190, 2d 2d 907, 998 1191 13A-6-20(a)(5), commits the d r i v i n g under substance o r any 32-5A-191 he crime the of serious (Ala. Crim. (Ala. Crim. assault bodily a motor v e h i c l e . " defined as " [ p ] h y s i c a l i n j u r y which of death, disfigurement, or which protracted to the impairment creates serious v. "a degree i f or a c o n t r o l l e d "Serious physical causes 5 first in violation injury Ward 1992)). of a l c o h o l thereof 2003), provides that i n the with risk App. A l a . Code 1975, another a App. (Ala. 2 004 )(quoting influence combination causes 974 of Section person of injury" is a substantial and protracted of h e a l t h , or protracted CR-09-1411 loss or impairment of the § 1 3 A - 1 - 2 ( 1 4 ) , A l a . Code In this testified presented very injuries. Jordan's mother that Jordan and The S t a t e had "little a little records i n d i c a t i n g that on h i s f a c e regarding the offered keloid require that caused by injuries Jordan regarding was sustained shoulder. effects of there was that evidence from This sufficient on h i s shattered regarding evidence hospital multiple the medical abrasions Further, Jordan d i d not his injuries. The Jordan's his original a d d i t i o n a l surgery. scar Indeed, the only medical Jordan's a laceration to h i s l e f t testimony continued p r o b l e m s was t h a t o f h i s m o t h e r , who t e s t i f i e d a evidence testified to three-inch o f f e r e d no m e d i c a l regarding testimony two- nicks" of Jordan's i n j u r i e s . testify organ." e a r was a l m o s t c u t o f f i n t h e w r e c k . She f u r t h e r offered and bodily 2 the State shoulder extent any case, Jordan's l e f t glass. 1975. of Jordan's regarding left function shoulder Court medical t h a t Jordan had injury that has r e p e a t e d l y to create only a jury would held question A l t h o u g h § 1 3 A - 6 - 2 0 ( a ) ( 5 ) , A l a . Code 1 9 7 5 , r e f e r e n c e s "serious bodily i n j u r y " instead of "serious physical i n j u r y , " t h i s Court has p r e v i o u s l y r e c o g n i z e d t h a t t h e term " s e r i o u s p h y s i c a l i n j u r y " i s the equivalent of the term " s e r i o u s b o d i l y i n j u r y " as i t p e r t a i n s t o i n t e r p r e t i n g § 1 3 A - 6 - 2 0 ( a ) ( 5 ) . See H e m r i c k v . S t a t e , 922 S o . 2 d 9 6 7 , 969 ( A l a . C r i m . A p p . 2 0 0 5 ) . 2 6 CR-09-1411 as to whether where the a victim sustained State presented victim testified See M a r l o w e v. aff'd, of 854 So. "serious testimony 686 So. regarding "serious extent 1994)(State established that injury" (Ala. did not that the her suffered State, App. [Ms. son's to "serious physical and Crim. suffered App. "serious Loving's without 28, shot injury." medical See, 2010] of So. serious in right v i c t i m denied shooting). 7 automobile testimony). evidence surgery (Ala. testified i n s u f f i c i e n t to e s t a b l i s h w h e r e v i c t i m was long-term e f f e c t s from the 59 State, sufficient following injuries, C R - 0 8 - 1 7 7 8 , May have evidence physician's where v i c t i m victim was 2002), a l s o S i z e m o r e v. 2d victim's 2010)(holding insufficient have a So. the or J o r d a n ' s t e s t i m o n y , Crim. injury by treating injuries 654 sufficient 1996)(finding injury" State, regarding Jordan H i n k l e v. v. her See App. physical of on the injuries. ( A l a . C r i m . App. based Crim. James testimony 1182 victim's testimony). of testimony 2d injury" collision); physical So. injury" and/or e f f e c t s of h i s or her (Ala. 2003)(finding (Ala. physical testimony 2d 1189 544 regarding medical 854 2d evidence the "serious State, physical and expert a e.g. 3d physical cheek having but any CR-09-1411 H o w e v e r , we establish degree that conclude that the evidence the l e s s e r - i n c l u d e d offense under § 13A-6-22(a)(2), "a] degree person i f commits ... [h]e another person." "physical the i n j u r y " as crime Jordan's at the scene that establish a prima Because showing failed degree, for that State the a judgment circuit court offense of presented physical a "physical of a s s a u l t to present sustained serious circuit of provides erred a c q u i t t a l as instructed third-degree insufficient the to condition jury assault, evidence to on and, or regarding injury" and to to i n the t h i r d degree. sufficient evidence physical i n denying that to defines sufficient f a c i e case of a s s a u l t court third injury A l a . Code 1975, of to third the physical failed to e s t a b l i s h a prima and in o f t h e w r e c k was suffered f a c i e case Jordan which assault causes i n the testimony presented at t r i a l Jordan the of "[i]mpairment The establish of a s s a u l t 13A-1-2(12), substantial pain." condition sufficient A l a . Code 1975, recklessly Section was i n the Reck's charge. the injury, i t first motion However, the lesser-included although support 3 a the conviction State for Indeed, Reck concedes i n h i s b r i e f on a p p e a l t h a t t h e e v i d e n c e i n t h e i n s t a n t c a s e s h o w e d t h a t J o r d a n s u f f e r e d some p h y s i c a l i n j u r i e s as a r e s u l t o f t h e c o l l i s i o n . 3 8 CR-09-1411 assault i n the f i r s t evidence to support degree. for degree, a T h e r e f o r e , we the State presented conviction remand t h i s f o r assault included offense i n the third to the c i r c u i t cause i t t o e n t e r a judgment f i n d i n g sufficient court Reck g u i l t y of third-degree assault of the l e s s e r - and t o resentence Reck a c c o r d i n g l y . See C o c k r e l l v . S t a t e , 890 S o . 2 d 168 Crim. aff'd, ( A l a . 2004). App. 2003), R E V E R S E D AND in 890 S o . 2 d 174 REMANDED. Wise, P . J . , and Welch, J . , c o n c u r . the result. Main, J . , d i s s e n t s w i t h MAIN, J u d g e , I (Ala. Windom, J . , c o n c u r s opinion. dissenting. believe that, under Court's standard of the State presented minimally sufficient evidence t o support the submission of the case r e s o l v e d any c o n f l i c t s records, The State to the jury, Court and, t h e j u r y introduced the c h i l d and I b e l i e v e that those c h i l d had y e t t o have another met victim's medical records, coupled with the e a r was a l m o s t the c o l l i s i o n , that the c h i l d had s e v e r a l shoulder having s h o u l d n o t go b e h i n d t h e j u r y ' s mother's testimony that the c h i l d ' s his review, i n the evidence or c r e d i b i l i t y choices a d v e r s e l y t o Reck, t h i s verdict. this scars, cut o f f i n and t h a t t h e s u r g e r y t o remove a k e l o i d the State's 9 burden of showing the from child CR-09-1411 victim's injuries statute defining requirement regarding conviction that t o be first-degree the the v i c t i m ' s and serious physical assault. State introduce injuries. Thus, sentence. For dissent. 10 injuries this under There expert is I no testimony I would a f f i r m reason, the Reck's respectfully
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