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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2011-2012
Jason Andrew Murphy
State of Alabama
Appeal from Houston Circuit Court
(CC-07-69; CC-07-70; CC-07-71; CC-07-74)
The appellant, Jason Andrew Murphy, was indicted for one
count of criminal mischief in the first degree, a violation of
§ 13A-7-21, Ala. Code 1975; one count of burglary in the
second degree, a violation of § 13A-7-6, Ala. Code 1975; one
count of making a terrorist threat, a violation of § 13A-1015, Ala. Code 1975; and five counts of attempted murder, a
violation of §§ 13A-4-2 and 13A-6-2, Ala. Code 1975.
subsequently filed a motion requesting that he be treated as
a youthful offender. Following a hearing, the circuit court
Thereafter, Murphy was convicted of one count of criminal
mischief, one count of second-degree burglary, one count of
making a terrorist threat, and one count of attempted murder.
The circuit court sentenced Murphy to 10 years' imprisonment
for the first-degree criminal-mischief conviction; 15 years'
imprisonment for the
second-degree burglary conviction; 10
conviction; and 35 years' imprisonment for the attemptedmurder conviction, the sentences to be served consecutively.
Additionally, the court ordered Murphy to pay a $2,000 fine
and $1,000 to the crime victims compensation fund for each of
the four convictions.
The evidence presented at trial established the following
pertinent facts. On Thursday, February 1, 2007, Murphy, who
was then living in Auburn, was in Dothan visiting his mother,
Sharon Murphy. Murphy was congested, had a stuffy nose, and
mother, a registered
nurse, took Murphy to PrimeCare in Dothan, where he was
examined by Dr. Steve Sherrer. After an examination, Dr.
Sherrer prescribed Avelox (an antibiotic), Tessalon Perles
(cough medicine), and Sudex (to relieve congestion). Dr.
Sherrer also provided Murphy with an injection of Kenalog (a
steroid for inflammation). Murphy took the Avelox and the
Sudex that evening, but was awake for most of the night
because of a severe headache. At this time, Murphy experienced
no problems with his memory and was not confused in any
The following morning Murphy called PrimeCare to complain
about his headache, and Dr. Sherrer prescribed Darvocet (pain
medication), a drug to which Murphy may have been allergic.
Later that day Murphy went back to PrimeCare, where he was
examined by Dr. Michael Williams. Dr. Williams diagnosed
Murphy with an ear infection, muscle-tension headaches, and
neck strain. Dr. Williams was notified that Murphy, who was a
member of the United States National Guard at the time, had a
physical-fitness test with the National Guard the following
recommending that Murphy not participate in rigorous physical
activity. That evening Murphy was again awake and talking with
his mother until about 6:00 a.m.
The next day Murphy had to wake at 6:30 a.m. to attend
drill with the National Guard. After drill, Murphy came home
experiencing problems with his "speech patterns ... where his
train of thought was not very good." (R. 1335.) Murphy was
also confused and disoriented for most of the evening. Murphy
again slept very little, talking with his mother until around
5:00 a.m., even though he had to attend National Guard drill
the following day.
At drill the next day Murphy ignored Dr. Williams's
warnings and attempted to take the physical-fitness test.
During the test, Murphy experienced chest pains, vomited, and
passed out. Murphy was taken by a National Guard medic to
hours. Murphy declined treatment
checked himself out of the hospital because he was feeling
The following morning Murphy and his mother went to see
Dr. Warren Rollins, an ear, nose, and throat specialist. Dr.
Rollins examined Murphy and diagnosed him with a sore throat.
Dr. Rollins recommended Murphy undergo a chest X-ray and an
EKG and that Murphy discontinue the use of Avelox because it
could cause heart damage. During the examination Rollins noted
exhibited no speech, concentration or orientation problems.
Dr. Rollins's office
approximately 9:00 a.m., and returned home so they could make
an appointment with PrimeCare for the chest X-ray and EKG.
When Mrs. Murphy could not get an appointment for her son, she
told Murphy to lay down and told Murphy that she would take
him to another doctor when she got home from filling his
While Mrs. Murphy was out, Murphy left his mother's home
and drove to PrimeCare at approximately 9:45 a.m. Murphy
entered PrimeCare agitated and angry, holding numerous bottles
of medicine in his hands. Murphy approached the receptionist,
Robin Dunn, and screamed "you gave me too much medicine, you
are trying to make me have a heart attack." (R. 137.) Christie
McLean, the office manager, heard Murphy screaming and took
him from the lobby to an examination room. At this time,
McLean believed Murphy was agitated but coherent.
Murphy was then examined by Dr. Joseph Sewell, who noted
Murphy's blood pressure and heart rate were a bit higher than
normal, but not dangerously high. Dr. Sewell ordered the chest
X-ray and found no abnormalities. Dr. Sewell prescribed Mobic
(an anti-inflammatory) and Albuteral (an inhaler) for Murphy;
he directed Murphy to continue taking the antibiotics as he
had been prescribed. As Murphy left PrimeCare, he looked at
Dunn, smiled and calmly stated, "I'm going to the bank. I'm
coming back to see you." (R. 141-42.)
Not long thereafter, Michael Wright, an Iraq war veteran
who had come to PrimeCare for a job-related physical, looked
outside the waiting-room window and saw Murphy marching in
"parade formation," wearing a camouflage helmet and carrying
a M14 rifle on his shoulder. (R. 762.) Wright stepped outside
of PrimeCare and telephoned the police.
Dunn, whose reception desk faced PrimeCare's glass front
doors, also saw Murphy's return. Murphy walked in the building
and started firing his weapon. He shattered the glass windows
that lined the front of the building and shot out the glass
walls that separated the reception area from the waiting room.
Dunn ducked as the shooting started, then ran and hid in an
examination room with a few patients, believing that each shot
fired was likely killing someone. As patients fled from the
lobby and staff members scrambled to get out of the line of
fire, Murphy began yelling, "I'm not here to hurt y'all. Get
out, get out. I'm not mad with y'all .... I'm mad with the
difficulty he was having in getting a medical clearance from
the National Guard for deployment to Iraq. (R. 1099.)
Jennifer Herring, human-resources director at PrimeCare,
was in an examination room when she heard loud screaming.
Herring ran to the reception area and saw employees crouched
down and hiding and Murphy holding a gun and wearing his
Once Herring saw the waiting room area was empty and
that no patients or staff were in immediate harm, she went to
McLean's office. McLean had telephoned the police to report
Murphy's attack. McLean and Herring then escaped out the back
door and ran to the top of the hill behind the PrimeCare
When Herring realized other employees were still in the
facility, she returned to the building with McLean to try and
help as many people escape as possible. Herring was in the
doorway of an exam room looking for patients when she heard
another shot. Murphy had shot blindly through a closed door at
the end of a hallway; the bullet passed by Herring and struck
the lead wall of the X-ray room, causing the bullet to
fragment. A fragment of the bullet grazed Herring, tearing her
blouse and drawing a small amount of blood. This was the last
shot fired by Murphy.
PrimeCare, a standoff ensued. Dothan Police Officer Frank
Meredith pulled up to the building he was under the impression
that the gunman had fled; he was very surprised to see Murphy
pointing a gun directly at him upon his arrival at PrimeCare.
Officer Meredith ducked for cover behind the outer wall of the
building and yelled his cellular phone number to Murphy.
Murphy telephoned him; this contact led to three hours of
negotiations, with frequent breaks where Meredith and Murphy
would hang up and then call each other back. Murphy asked
about the potential criminal charges that he faced; Murphy was
especially interested in whether he would be charged with
misdemeanors or with felonies. The police negotiators gave the
phone to Assistant District Attorney David Atwell, who told
Murphy to "stop this before it does turn out worse. You know,
right now you may just be looking at broken windows." (R.
1105-06.) Shortly after this conversation, Murphy put down his
weapon, left PrimeCare, and was arrested by the SWAT team. The
ammunition, and a knife in the PrimeCare lobby that Murphy had
brought along with him but never used during the attack.
temporary, drug-induced psychosis. The circuit court ordered
Dr. Doug McKeown, a clinical and forensic psychologist, to
determine Murphy's mental state at the time he attacked the
documents provided by the State and by Murphy, and interviewed
Murphy when making his determination on Murphy's mental state.
Murphy was determined to be competent to stand trial.
At trial, the State offered expert testimony from Dr.
McKeown. Dr. McKeown testified:
"[I]t was my opinion that he was capable of
appreciating the nature and quality of his actions
and behavior at that time; that the reports and
information available were that he was taking
different medications which could have had some type
of an effect on him, but not to the point that it
would have prevented him from carrying out
purposeful behavior or knowing the difference
between right and wrong."
(R. 327.) McKeown also testified that Murphy's actions during
the police standoff, such as his negotiations with the police
inconsistent with delirium or psychosis.
In addition to Dr. McKeown, the State presented testimony
from the doctors who treated Murphy during the days leading up
to the attack at the PrimeCare facility. The doctors who
treated Murphy agreed that after examining Murphy there was
nothing to indicate mental problems, even after Murphy had
taken a number of prescription drugs. Dr Sewell, the last
doctor to see Murphy before the attack, wrote on Murphy's
chart "[o]riented times three, normal mood, affect, and normal
cranial nerves as tested," indicating that Murphy was normal
after neurologic/psychiatric testing only a few minutes before
his armed return to PrimeCare. (R. 437.)
Murphy offered expert testimony of two expert witnesses
as part of his defense. Murphy's expert witnesses presented
testimony that conflicted with that of the State's expert
witnesses. Dr. Michael D'Errico, a forensic psychologist,
performed a psychological evaluation of Murphy, interviewed
Center, PrimeCare, and Dr. Rollins. It was Dr. D'Errico's
"Mr. Murphy was experiencing side effects from a
medication which caused him to vomit, feel nauseous,
and become dehydrated, and his psychological — I
mean his speech, his ability to orient himself to
time, his ability to focus his attention, all of
which were deteriorated at the time just prior to
substance-induced state of delirium."
Dr. D’Errico testified that these combined factors would have
impacted Murphy’s decision making and behavior. (R. 1138-39.)
In addition to Dr. D'Errico, Murphy also provided expert
testimony from Dr. Brandi Odom, a doctor of pharmacy. Dr. Odom
medications taken by Murphy and testified that "given the
medications that [Murphy] was taking, and from the interviews
that I had and the information that I gathered, in my opinion
I think that Mr. Murphy experienced drug-induced psychosis or
drug-induced central nervous system effects which contributed
to his actions around the time of the alleged offense." (R.
After both sides rested, the circuit court instructed the
jury on the applicable principles of law. The jury returned a
mischief, one count of second-degree burglary, one count of
making a terrorist threat, and one count of attempted murder
as to Herring. This appeal followed.
Murphy first contends that the circuit court erred by
Specifically, Murphy contends that his age, social history,
and the fact that no one sustained physical injuries as a
result of his criminal conduct support a finding
should have been treated as a youthful offender. Nothing in
court's denial of his request for youthful-offender status.
See Harris v. State, 794 So. 2d 1214 (Ala. Crim. App.
2000)(by failing to object, the appellant did not preserve for
review whether trial court erred by denying his request for
youthful-offender status); Withee v. State, 728 So. 2d 684
(Ala. Crim. App. 1998)(issue whether trial court erred by
failing to grant defendant youthful-offender status was not
In any event, even if the issue had been preserved for
appellate review, Murphy would not be entitled to relief. A
trial court has almost absolute discretion in deciding whether
youthful-offender status, and this Court will not overturn
investigation or examination of the defendant.
State, 600 So. 2d 374 (Ala. Crim. App. 1991). The trial court
need not articulate on the record its reasons for denying a
defendant youthful-offender status. Reese v. State, 677 So. 2d
1239 (Ala. Crim. App. 1996).
"All that is required is that
the trial court undertake an examination of the defendant
sufficient to enable it to make an intelligent determination
as to whether, in its discretion, the defendant is eligible
for treatment as a youthful offender." Gamble v. State, 791
So. 2d 409, 419 (Ala. Crim. App. 2000)(citing Fields v. State,
644 So. 2d 1322 (Ala. Crim. App. 1994)). "Generally, the trial
court considers the nature of the crime charged, any prior
convictions, the defendant's age, and any other matters deemed
relevant by the court." Reese v. State, 677 So. 2d at 1240.
hearing on Murphy's application for youthful-offender status.
The record indicates that the circuit court considered the
Therefore, we cannot say that the circuit court abused its
Murphy also contends that the circuit court erred in
denying his motion for a judgment of acquittal because, he
argues, the State failed to present sufficient evidence to
sustain his convictions for attempted murder and second-degree
"'"In determining the sufficiency of the evidence to
sustain a conviction, a reviewing court must accept
as true all evidence introduced by the State, accord
the State all legitimate inferences therefrom, and
consider all evidence in a light most favorable to
the prosecution."' Ballenger v. State, 720 So. 2d
1033, 1034 (Ala. Crim. App. 1998), quoting Faircloth
v. State, 471 So. 2d 485, 488 (Ala. Crim. App.
1984), aff'd, 471 So. 2d 493 (Ala. 1985). '"The test
used in determining the sufficiency of evidence to
sustain a conviction is whether, viewing the
evidence in the light most favorable to the
prosecution, a rational finder of fact could have
found the defendant guilty beyond a reasonable
doubt."' Nunn v. State, 697 So. 2d 497, 498 (Ala.
Crim. App. 1997), quoting O'Neal v. State, 602 So.
2d 462, 464 (Ala. Crim. App. 1992). '"When there is
legal evidence from which the jury could, by fair
inference, find the defendant guilty, the trial
court should submit [the case] to the jury, and, in
such a case, this court will not disturb the trial
court's decision."' Farrior v. State, 728 So. 2d
691, 696 (Ala. Crim. App. 1998), quoting Ward v.
State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990).
'The role of appellate courts is not to say what the
facts are. Our role ... is to judge whether the
evidence is legally sufficient to allow submission
of an issue for decision [by] the jury.' Ex parte
Bankston, 358 So. 2d 1040, 1042 (Ala. 1978).
"'The trial court's denial of a motion
for judgment of acquittal must be reviewed
by determining whether there was legal
evidence before the jury at the time the
motion was made from which the jury by fair
inference could find the defendant guilty.
Thomas v. State, 363 So. 2d 1020 (Ala. Cr.
App. 1978). In applying this standard, this
court will determine only if legal evidence
was presented from which the jury could
have found the defendant guilty beyond a
reasonable doubt. Willis v. State, 447 So.
2d 199 (Ala. Crim. App. 1983). When the
evidence raises questions of fact for the
jury and such evidence, if believed, is
sufficient to sustain a conviction, the
McConnell v. State, 429 So. 2d 662 (Ala.
Crim. App. 1983).'"
Gavin v. State, 891 So. 2d 907, 974 (Ala. Crim. App. 2003),
cert. denied, 891 So.
998 (Ala. 2004)(quoting Ward v.
State, 610 So. 2d 1190, 1191 (Ala. Crim. App. 1992)).
insufficient evidence from which the jury could conclude that
he attempted to murder Herring. Specifically, Murphy argues
that the State failed to present sufficient evidence of his
specific intent to murder Herring. The State concedes that
"there was no evidence indicating that Murphy intended to kill
Jennifer Herring, the victim in the sole attempted murder
count under which [Murphy] was convicted." (State's brief, p.
"The elements of the crime of attempted murder are intent
to kill and an overt act towards commission of that act."
Bradford v. State, 734 So. 2d 364, 369 (Ala. Crim. App. 1999)
(citing Chaney v. State, 417 So. 2d 625 (Ala. Crim. App.
"'Attempted murder is a specific intent crime.... An
attempt to commit murder requires the perpetrator to
act with the specific intent to commit murder.... A
general felonious intent is not sufficient.' Free v.
State, 455 So. 2d 137, 147 (Ala. Cr. App. 1984). To
establish a prima facie case of attempted murder,
the State must present evidence of the accused's
specific intent to kill, and of 'some overt act in
part execution of the intent to commit the crime ...
which falls short of the completed crime; the
difference between attempt and commission being that
the act or step fails to produce the result
intended.' Broadhead v. State, 24 Ala. App. 576, 139
So. 115, 117 (1932)."
Minshew v. State, 594 So. 2d 703, 704 (Ala. Crim. App. 1991).
Our review of the record indicates there was insufficient
evidence to support Murphy's conviction for attempted murder.
Murphy shot through a closed door, and it was impossible for
Murphy to see what or who was behind that door when it was
closed. Testimony at trial also demonstrated that Murphy was
not aware that anyone was behind the door. While the shot
could have hit Herring had she been in the hallway behind the
door, that possibility alone does not show Murphy had the
intent to commit murder when he fired the shot.
Because the State presented no evidence indicating that Murphy
intended to murder anyone when he shot into the hallway, the
circuit court erred in denying Murphy's motion for a judgment
of acquittal as to the charge of attempted murder.
Murphy further contends that the State failed to prove a
prima facie case of second-degree burglary because, he argues,
the State failed to prove that he unlawfully entered PrimeCare
or that he unlawfully remained at PrimeCare with the intent to
commit theft or a felony. Murphy contends that his presence at
PrimeCare was not unlawful because, he says, he had license to
be in the public areas of the facility and that license was
never revoked. Murphy also contends that he could not have
PrimeCare because testimony of psychological experts at trial
(Murphy's brief, p. 39.)
"(a) A person commits the crime of burglary in
the second degree if he or she knowingly enters or
remains unlawfully in a building with intent to
commit theft or a felony therein and, if in
effecting entry or while in the building or in
immediate flight therefrom, the person or another
participant in the crime:
"(1) Is armed with explosives; or
"(2) Causes physical injury to
person who is not a participant in
"(3) In effecting entry, is armed with
a deadly weapon or dangerous instrument or,
while in the building or in immediate
flight from the building, uses or threatens
the immediate use of a deadly weapon or
dangerous instrument against another person
unlawfully' in or upon premises when he is
invited or privileged to do so." § 13A-7-1(4) Ala. Code 1975.
trespassory element of burglary, which element, when coupled
with the intent to commit a crime inside, forms the nucleus of
the burglary offense." Davis v. State, 737 So. 2d 480, 482
presented sufficient evidence from which the jury could have
concluded that Murphy remained unlawfully on the premises of
PrimeCare. The Alabama Supreme Court discussed the issue of
unlawful remaining in Davis v. State, 737 So. 2d 480. In
Davis, the defendant was convicted of first-degree burglary
after he entered the mobile home of an acquaintance, strangled
her with a cord, and then stole a $50 money order. This Court
overturned Davis's conviction, finding that the State failed
to present evidence indicating that Davis had entered the
mobile home, or had remained in the mobile home, unlawfully.
The Alabama Supreme Court reversed this Court’s judgment,
conviction can be based." Davis, 737 So. 2d at 483. After
Davis, "[t]he State is no longer required to prove that the
strictures of that element have been replaced with the general
requirement of a trespass on premises through an unlawful
entry or an unlawful remaining." Id.
The Davis Court also recognized that the termination of
a license can be implied through circumstantial evidence.
Davis, 737 So. 2d at 483-84. First, the Davis Court stated
that commission of a crime on the premises alone is not enough
to create an implied termination of license. For instance,
"evidence of a privileged entry followed by death from an
evidence of an unlawful remaining." Davis, 737 So. 2d at 485.
instantaneous method of killing, like strangulation, or a
struggle before death can create the inference of an implied
revocation of a license, because "the jury reasonably could
have found that [the defendant], from the point at which he
began committing his criminal acts, remained unlawfully in
[the victim’s] home with the intent to commit a crime." Id. at
485. Our Supreme Court's discussion in Davis demonstrates that
the inference of unlawful remaining is permitted when the
premises, and the licensor's reaction to the commission of
that crime demonstrates that the perpetrator's license to be
on the premises has been revoked.
automatic rifle, a significant amount of ammunition, and a
military helmet. Murphy then shot out the windows in the front
of the building, shot out the glass in the reception area, and
shot other items in the building. Murphy also shot through a
doorway, just missing two PrimeCare employees. When Murphy
started shooting, the patients and staff of PrimeCare fled
from the building in terror. The PrimeCare staff and patients
because they could not do so themselves in light of the danger
Murphy presented. The reaction of PrimeCare's employees to
Murphy's criminal acts implied that any license he may have
had to be on the premises was revoked. The intent to revoke
PrimeCare staff and patients and their calling the police
after Murphy started shooting. Therefore, the State provided
sufficient circumstantial evidence from which the jury could
sufficient evidence to support a conclusion by the jury that
Murphy had the requisite intent to commit a felony when he
entered PrimeCare. In a prosecution for second-degree burglary
the intent of the defendant "must be inferred by the jury from
a due consideration of all of the material evidence." Rivers
v. State, 624 So. 2d 211, 213 (Ala. Crim. App. 1993). The
record indicated that Murphy took an M14 rifle, a pistol, a
ammunition with him when he went to PrimeCare. Murphy also
parked his vehicle behind PrimeCare near a park, well away
felonies. Murphy destroyed property worth at least $2,500
during his occupation of PrimeCare, constituting the felony of
criminal mischief, a violation of § 13A-7-21. Murphy also
terrorized PrimeCare's employees and patients, constituting
the felony of making terrorist threats, in violation of § 13A10-15. Because the jury is allowed to infer intent "from a due
consideration of all of the material evidence," Rivers, 624
So. 2d at 213, and because the material evidence indicated
that Murphy entered PrimeCare with guns and live ammunition,
then used the guns and live ammunition to commit two felonies,
the logical inference is that Murphy intended to commit those
felonies when he entered PrimeCare.
Murphy argues that his intent to commit those felonies
should be negated because, he says, his drug-induced psychosis
made it impossible for him to control his behavior. The jury
Murphy's expert, forensic psychologist Dr. D'Errico, testified
that the medications Murphy took during the week leading up to
induced state of delirium, impacting Murphy's ability to make
decisions and to regulate his behavior. However, Dr. McKeown,
taking many medications, Murphy had the ability to appreciate
the nature and quality of his actions and behavior while at
"[C]onflicting evidence presents a jury question which is
not subject to review on appeal." Barnes v. State, 571 So. 2d
372, 374 (Ala. Crim. App. 1990) (citing Willis v. State, 447
So. 2d 199, 201 (Ala. Crim. App. 1983)). "'The weight of the
evidence, and the credibility of the witnesses, and inferences
to be drawn from the evidence, where susceptible of more than
one rational conclusion, are for the jury alone.'" Turrentine
v. State, 574 So. 2d 1006, 1009 (Ala. Crim. App. 1990)(quoting
permitted the jury to reasonably conclude that Murphy intended
to commit the felonious crimes that formed the basis for his
second-degree burglary conviction.
Reviewing the evidence in a light most favorable to the
Therefore, the circuit court did not err in denying Murphy's
motion for a judgment of acquittal as to that charge.
Finally, Murphy contends that the circuit court erred
when it gave the jury the following charge:
"I charge you ladies and gentleman that 'unlawfully
remains' includes a situation where the victim
terminated the defendant's license or privilege to
remain on the premises and can be inferred where a
shooting took place on the premises."
Murphy specifically contends that the
circuit court's charge amounted to an incorrect statement of
the law and unduly prejudiced him. Relying on Davis v. State,
supra, Murphy argues that "evidence of a commission of a
crime, standing alone, is inadequate to support the finding of
unlawful remaining" and therefore that it is improper for the
jury to infer that a shooting on the premises automatically
terminates a license to be there. (Murphy's brief, p. 40.)
"'A trial court has broad discretion in formulating its
jury instructions, provided they are an accurate reflection of
the law and facts of the case.'"
Toles v. State, 854 So. 2d
1171, 1175 (Ala. Crim. App. 2002)(quoting Coon v. State, 494
So. 2d 184, 186 (Ala. Crim. App. 1986)).
Our review of the record indicates the circuit court's
use of the State's requested charge number 10 accurately
reflected the law and facts of the case. As discussed above,
the Alabama Supreme Court's decision in Davis offers guidance
for when it is permissible for the jury to infer unlawful
conviction. In short, so long as the licensor is aware of the
crime being committed and takes action inconsistent with the
continuation of the license, that action acts as an implied
remaining on the premises becomes unlawful.
In the instant case, Murphy made PrimeCare's patients and
staff very aware of the commission of his crimes. Murphy shot
an M14 assault rifle multiple times in the waiting room of a
crowded medical facility. As soon as Murphy started shooting,
the patients and staff of PrimeCare ran from the facility and
telephoned the police. There is no question that the people
inside PrimeCare were aware that the shooting had taken place,
and there is no question that their reaction was inconsistent
with Murphy's retaining a license to remain lawfully on the
premises. Requiring the staff of PrimeCare to ask Murphy to
leave as he is shooting up the premises is unreasonable; their
flight from the danger presented by Murphy is enough for the
jury to infer Murphy's license to remain at PrimeCare was
revoked. Because of the timing and location of the shooting,
there was no error on the part of the circuit court when it
charged the jury that a shooting on the premises of PrimeCare
created the inference that Murphy unlawfully remained on the
Moreover, even if the jury charge that allowed the jury
to infer that the license to remain at PrimeCare had been
revoked solely because Murphy began shooting was in error,
Murphy was not prejudiced by such a charge. "After finding
error, an appellate court may still affirm a conviction or
sentence on the ground that the error was harmless, if indeed
Davis v. State, 718 So. 2d 1148, 1164 (Ala. Crim.
aff'd, 718 So. 2d 1166 (Ala. 1998). Rule 45, Ala.
R. App. P., provides, in pertinent part:
"No judgment may be reversed or set aside, nor new
trial granted in any civil or criminal case on the
ground of misdirection of the jury, the giving or
refusal of special charges or the improper admission
or rejection of evidence ... unless in the opinion
of the court to which the appeal is taken or
application is made, after an examination of the
entire cause, it should appear that the error
complained of has probably injuriously affected
substantial rights of the parties."
"The purpose of the harmless error rule is to avoid setting
aside a conviction or sentence for small errors or defects
that have little, if any, likelihood of changing the result of
the trial or sentencing."
Davis, 718 So. 2d at 1164.
Our examination of the record indicates that there was
unlawfully at the PrimeCare facility. Murphy did much more
than just shoot in a publicly accessible place; he terrorized
a crowded medical building, shot in the general direction of
patients and staff, and forced the Primecare staff to call the
police because he was too
dangerous to remove from
premises without help from the authorities. After the police
arrived on the scene, Murphy remained at PrimeCare for another
three hours until the police negotiated his surrender. These
facts alone are enough to satisfy the unlawful-remaining
element of second-degree burglary. Because the jury charge
could have had no substantial impact on Murphy's rights, any
error in the jury charge was harmless beyond a reasonable
Based on the foregoing, Murphy's convictions for one
count of first-degree criminal mischief, one count of seconddegree burglary, and one count of making a terrorist threat
are affirmed. However, for the reasons set forth in Part II.A.
of this opinion, Murphy's conviction for the attempted murder
of Jennifer Herring is due to be set aside and a judgment
rendered in Murphy's favor.
AFFIRMED IN PART; REVERSED AND JUDGMENT RENDERED IN PART.
Windom, P.J., and Welch, Burke, and Joiner, JJ., concur.