Melvin Nicholson v. State of Alabama

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Rel: 07/29/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l 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-10-0287 Melvin Nicholson v. S t a t e o f Alabama Appeal f r o m J e f f e r s o n C i r c u i t C o u r t , Bessemer D i v i s i o n (CC-09-1343) WELCH, P r e s i d i n g , J u d g e . A J e f f e r s o n County on one convicted count of grand possessing of a crime jury a indicted pistol of violence, Melvin after a violation Nicholson having of § 7 2 ( a ) , A l a . Code 1 9 7 5 , a n d one c o u n t o f t h i r d - d e g r e e been 13A-11domestic CR-10-0287 violence, a Nicholson was tried guilty the p i s t o l - p o s s e s s i o n charge of violation § before domestic-violence N i c h o l s o n , who of 13A-6-132, a jury; charge. had two The prior term of imprisonment. the The Ala. jury and Code found not trial 1975. Nicholson guilty court of sentenced f e l o n y c o n v i c t i o n s , to a trial the court also ordered 10-year Nicholson to pay a $50 assessment to the V i c t i m s Compensation Fund, to pay court costs. Nicholson filed a an motion. on living residence sons motion appeal her Nickerson and key she she on before get the and trial, The and he later court held denying the 2009, when trial an her order on May children. returned residence. the came to and N i c h o l s o n 2 9, to N i c h o l s o n door l o c k e d , the and three sons screen door that, married her inside Nicholson residence, Nickerson new entered was with found the to and a trial. testified together that knocked minutes for follows. incident occurred, testified use the This Tamecia were a motion a m e n d e d m o t i o n f o r a new hearing this filed and to and door. she family could not and her Nickerson Once they Nickerson the bedroom window the and for several inside argued about the door the being CR-10-0287 l o c k e d and into N i c h o l s o n f a i l i n g to open the d o o r , the bedroom during the testified: "And Bible argument. under the m a t t r e s s . case and grabbed the gun dance then the out. Bible And tonight. sat on bedroom and minutes said And the later, and in the bedroom. the She cloth case. several Nickerson On had that houses denied gun police. she that their that the at l e a s t for Nicholson the given Nickerson kept to somebody she left arrived the 10-20 police she remained in the brought the gun as the a had given nine- in a black testify the on gun crossafter been b u r g l a r i z e d ; to her. testified black gun Nicholson s i n c e 2 0 0 6 ; t h a t she 3 took Nicholson the had gun appeared was there custody. neighborhood gun police the and make and in under 13.) Nicholson described had to said, The into up (R. waited taken someone in she further mattress going that Nicholson redirect examination the bed, Nickerson the afraid." and she said was walked [ s i c ] a gun reached under room was and millimeter. examination the testified house, Bible the living he was while Nicholson Nickerson I of telephoned from that so side remained into case he they Nickerson [ N i c h o l s o n ] u s u a l l y keep So, and (R. 24-25.) that Nicholson had seen the gun had in CR-10-0287 their the house p r e v i o u s l y ; gun and t h a t she had seen Erby testified that he was of F a i r f i e l d as a p o l i c e d e t e c t i v e investigate the Erby and were although record her with the p o l i c e not report the p o l i c e to the a weapon d u r i n g identified identify of to Nicholson. incident t h e p o l i c e and s a i d that a domestic had been a r r e s t e d a t t h e weapon semi-automatic p i s t o l . able the C i t y as He s t a t e d t h e owner of the r a n a " t r a c e " on t h e w e a p o n a nine- that the weapon, to locate a of i t s ownership. The State Nicholson charge presented had working Vandiber case-action and to a as guilty evidence plea to a burglary. testified that he had in officer. the domestic-violence that summary entered as a n i g h t - s h i f t p a t r o l responded residence a previously of third-degree Tonkois had police against Det. Erby stated that Nicholson scene, police case a woman h a d c o n t a c t e d millimeter Beretta that the husband had t h r e a t e n e d dispute. the that that employed by a n d t h a t he was a s s i g n e d domestic-violence stated indicated her use previously. Michael Det. Nicholson He call participated 4 May 2009 stated at in he that was he Nicholson's the arrest. CR-10-0287 Vandiber t e s t i f i e d t h a t a h a n d g u n was r e c o v e r e d f r o m t h e home, specifically, Beretta "a ammunition magazine Vandiber Nickerson a n d some l o o s e stated that into once home was r e t r i e v e d t h e gun from b e n e a t h t h e m a t t r e s s , secured, on w h a t side of the bed. the g u n as t h e one N i c h o l s o n gun belonged to Nicholson. Bible case, Vandiber Peggy Sager a friend and she Nickerson identified and she s a i d T h e g u n was i n s i d e that the a black leather said. testified had brought Nickerson had used, an (R. 48.) Nicholson with with officers was N i c h o l s o n ' s the shells. along the said went nine-millimeter," f o r the defense. a gun t o h e r house t o h e r house then came and p i c k e d that she d i d n o t know what N i c k e r s o n She s t a t e d and t h a t up t h e g u n . d i d with that Nickerson Sager stated the gun. Analysis Nicholson argues that the trial denied the motion f o r a judgment says, the failed State Specifically, had a prior he a r g u e s t h a t conviction phrase has been d e f i n e d to court of a c q u i t t a l prove the State f o r a "crime a prima failed when i t because, facie he case. t o p r o v e t h a t he of v i o l e n c e , " by Alabama a p p e l l a t e 5 erred courts; as that that the CR-10-0287 State failed d e f i n e d by failed to prove that the handgun was § 1 3 A - 1 1 - 7 0 ( 2 ) , A l a . Code 1975; to prove that he knowingly a and possessed "pistol," that the the as State gun. " ' " I n 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 a c o n v i c t i o n , a r e v i e w i n g c o u r t 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 S t a t e , a c c o r d the 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 a l l e v i d e n c e i n a l i g h t most f a v o r a b l e t o the p r o s e c u t i o n . " ' B a l l e n g e r v . S t a t e , 720 So. 2 d 1 0 3 3 , 1034 ( A l a . C r i m . A p p . 1 9 9 8 ) , q u o t i n g F a i r c l o t h v. S t a t e , 471 So. 2d 4 8 5 , 488 (Ala. Crim. App. 1 9 8 4 ) , a f f ' d , 471 S o . 2 d 493 ( A l a . 1 9 8 5 ) . '"The test used i n d e t e r m i n i n g the s u f f i c i e n c y of evidence to sustain a conviction is whether, viewing 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 i n d e r of f a c t c o u l d have found the defendant guilty beyond a reasonable doubt."' N u n n v . S t a t e , 697 So. 2 d 4 9 7 , 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 [ t h e c a s e ] t o t h e j u r y , and i n such a case, t h i s c o u r t w i l l not d i s t u r b the t r i a l court's decision."' 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 . A p p . 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 facts are. Our r o l e ... i s t o j u d g e w h e t h e r t h e 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 . ' Ex 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)." Roberson v. State, 8 64 So. 2d 379, 2002). 6 384-85 (Ala. Crim. App. CR-10-0287 Section person 13A-11-72(a), who has committing or own a pistol or her been o r h a v e one defines "crime or attempt an manslaughter of a to in 1975, provides: "No state this i n h i s or her or of of as: "Any any of of mayhem, Ala. the Code 1975, includes violence," Nicholson Code 1975, crimes namely, with i n t e n t to r a v i s h , a s s a u l t w i t h kidnapping plain and "burglary" argues of § and the on the So. 1002, 2d conviction constitutes facts underlying 665, 666-68 1004-05 Court explained (Ala. the (Ala. Crim. a 1993); Henry State App. 1998). of "crime agrees -- that depends Johnson, State, 714 Alabama the b a s i s f o r the a p p e l l a t e c o u r t s ' 7 of third-degree violence The Ala. of Ex p a r t e v. rob, murder, 13A-ll-70(2), crime conviction. to (Emphasis added.) in i t s definition -- operation intent Alabama a p p e l l a t e c o u r t s have h e l d t h a t whether a burglary murder, i n t e n t to larceny." language his following the them, assault shall or under m a n s l a u g h t e r a r i s i n g out of the rape, though elsewhere violence possession 13A-11-70(2), commit (except Code commit a c r i m e violence" robbery, burglary, Even to Section of vehicle), assault with convicted attempting control." Ala. So. 620 2d Supreme decisions: CR-10-0287 "Regarding this definition, v i o l a t i o n of § 13A-11-72(a), Appeals s t a t e d : as i t r e l a t e s t o a the Court of C r i m i n a l "'Sections 1 3 - A - 1 1 - 7 0 a n d -72 w e r e n o t e n a c t e d a s a p a r t o f A l a b a m a ' s new C r i m i n a l Code. See 1977 A c t s 8 1 2 , No. 607 ( J a n u a r y 1, 1 9 8 0 ) . Those s e c t i o n s were c r i m i n a l laws i n Alabama p r i o r t o the passage of the new C r i m i n a l C o d e , s e e A l a . C o d e 1 9 7 5 , § 13-6-150 and -152, and were t r a n s f e r r e d t o t h e C r i m i n a l Code f r o m T i t l e 13, s e e T a b l e I I -- S e c t i o n s T r a n s f e r r e d ( t o T i t l e 13A) 1982 R e p l a c e m e n t V o l . 1 2 , A l a . C o d e 1975 a t 3. "'Burglary and t h e f t a r e d e f i n e d i n t h e A l a b a m a C r i m i n a l Code, § 13A-7-7 a n d § 13A-8-2, r e s p e c t i v e l y , and each offense embraces acts which would not have constituted i t s predecessor offense prior to the Criminal Code. See § 13-2-41 ( b u r g l a r y i n t h e s e c o n d d e g r e e ) , § 13-3-50 (grand larceny), and § 13-3-51 (petit larceny).' " [ J o h n s o n v . S t a t e , 620 S o . 2 d 6 6 1 , 664 App., 1 9 9 1 ) ] . (Emphasis added.) ( A l a . Crim. "In short, as t h e C o u r t o f C r i m i n a l Appeals indicated, convictions for burglary i n the t h i r d d e g r e e and t h e f t i n t h e f i r s t and s e c o n d d e g r e e s , as s e t o u t i n t h e new C r i m i n a l C o d e p r o v i s i o n s , c a n embrace acts that a r e n o t deemed a 'crime of violence' as that term was intended by the l e g i s l a t u r e i n e n a c t i n g w h a t i s now § 1 3 A - 1 1 - 7 0 . " B e c a u s e w h a t i s now § 1 3 A - 1 1 - 7 0 ( 2 ) was e n a c t e d years before t h e new C r i m i n a l C o d e o f f e n s e s were e n a c t e d , s e e T i t . 14, § 1 7 2 ( a ) , Code o f A l a . 1940, one c a n n o t s i m p l y l o o k t o t h e name g i v e n a n o f f e n s e i n t h e new C r i m i n a l C o d e p r o v i s i o n a n d c o n c l u d e t h a t 8 CR-10-0287 it i s synonymous w i t h an 13A-11-70(2). See D o s s v . So. 231 (1929); Hudson v. S o . 2 d 909 (1953). Ex parte Johnson, The the State prove it Alabama had that he 620 So. Supreme presented had been 2d at Court at o l d e r term found i n § S t a t e , 220 A l a . 30, 123 R e e d , 259 A l a . 3 4 0 , 66 667. then considered Johnson's convicted the evidence in an a crime of trial attempt of violence, to and held: " A d d r e s s i n g t h e e v i d e n c e o f f e r e d b y t h e S t a t e on the p r i o r - c r i m e - o f - v i o l e n c e element, the Court of C r i m i n a l A p p e a l s s t a t e d : 'The S t a t e p r o v e d t h a t t h e appellant had been c o n v i c t e d of b u r g l a r y in the t h i r d d e g r e e and t h e f t o f p r o p e r t y i n t h e f i r s t and second degrees.' 620 So. 2d a t 664. Indeed, i t i s u n d i s p u t e d t h a t on t h e e l e m e n t o f a p r i o r ' c r i m e o f v i o l e n c e , ' the S t a t e p r o d u c e d o n l y e v i d e n c e of the f a c t o f t h e s e c o n v i c t i o n s u n d e r t h e new Criminal Code p r o v i s i o n s . As we have d i s c u s s e d , this is i n s u f f i c i e n t t o show p r o o f on t h e e l e m e n t o f a p r i o r 'crime of v i o l e n c e . ' Ex parte In Johnson, the case 620 now f a c t of N i c h o l s o n ' s evidence Nicholson did had not So. State at 667-68 us before the (some e m p h a s i s State presented conviction for third-degree satisfy committed State, therefore, f a i l e d The 2d the a State's prior burden crime of added). only burglary. of t o e s t a b l i s h an e l e m e n t o f t h e argues i n i t s b r i e f t h a t the 9 record That proving violence, does not the that and the crime. contain CR-10-0287 a copy of Nicholson's result, claim the exhibit third-degree the record and record. this prove the p r i o r review i s silent Court of presented no e v i d e n c e before us regarding prior nothing the underlying and t o prove Having the claim a prima found that offense necessarily of error introduced hold anything facts prove Nicholson's on a silent by t h e S t a t e t o However, o u r that other the than i s , the State of that as a State the fact presented c o n v i c t i o n , and t o e s t a b l i s h an e l e m e n t o f t h e facie the State f o r which that indicates conviction, that i n f o r m a t i o n was n e c e s s a r y crime of predicate summary to c o n v i c t i o n , and t h a t , as t o t h e m e r i t s cannot of N i c h o l s o n ' s that introduced conviction i s not i n the record. the record about State burglary The c a s e - a c t i o n 1 the case. failed Nicholson Nicholson to present was i s entitled an e l e m e n t convicted, to relief we on h i s of error. "The j u d g m e n t m u s t b e r e v e r s e d a n d a j u d g m e n t rendered f o r the defendant, because the State f a i l e d i n i t sburden of proof. This Court cannot a f f i r m a conviction where the record i s silent, as i t e f f e c t i v e l y i s h e r e , as t o an e s s e n t i a l e l e m e n t o f The S t a t e does n o t argue t h a t N i c h o l s o n f a i l e d t o r a i s e the i s s u e i n t h e t r i a l c o u r t , and, i n f a c t , i t acknowledged t h a t N i c h o l s o n r a i s e d t h i s s p e c i f i c c l a i m i n an amended m o t i o n f o r a new t r i a l . ( S t a t e ' s b r i e f , p. 14.) 1 10 CR-10-0287 the o f f e n s e . See Ex p a r t e 987 ( A l a . 1 9 8 4 ) . " Johnson, So. 620 S o . 2 d a t 6 6 9 . 2 d 140 ( A l a . Crim. Because based on the discussion on we hold App. that failure of of the remaining Peterson, 466 S o . 2 d 9 8 4 , See a l s o A v e r h a r t v. S t a t e , 668 1995). Nicholson proof at i s entitled trial, we to relief pretermit i s s u e s he h a s r a i s e d i n h i s b r i e f appeal. For court the foregoing i s reversed, R E V E R S E D AND reasons, the judgment and a judgment i s rendered of the f o r Nicholson. JUDGMENT RENDERED. Windom, K e l l u m , Burke, and J o i n e r , J J . , c o n c u r . 11 circuit

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