Bryant Bernard Evans v. State of Alabama

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REL: 09/30/2011 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-09-1806 Bryant Bernard Evans v. S t a t e o f Alabama A p p e a l from J e f f e r s o n C i r c u i t C o u r t (CC-09-396; CC-09-397; CC-09-398; and CC-09-399) BURKE, Judge. Bryant first-degree 1975. Bernard Evans robbery, appeals violations E v a n s was s e n t e n c e d , imprisonment without parole h i s four of § convictions f o r 13A-8-41, A l a . Code as a h a b i t u a l o f f e n d e r , f o reach c o n v i c t i o n . to life CR-09-1806 On February indictments against first-degree victim were Frank which Cut Bowden. August day, Rutledge towards walked his back through barbershop. minutes testified According were w a i t i n g customers f e l l o w walk from that later, counts a of different facts. The Michael Rutledge, consolidated that four for trial, from he was t h e o w n e r to Rutledge, down Rutledge t h e man t h e man later he t u r n e d and walked was d i d n o t know that right that and Evans was he down around back up t h e man i n front of man. by t h e b a r b e r s h o p , 2 f o r the the top of the h i l l l o t , which returned, day i n i n s i d e the barbershop, Rutledge explained passed of A f o r him i n the parking l o t . i n the alley the parking one the barbershop a n d maybe t w o m i n u t e s the shop." (R. 109.) testified involved set of were four four 10, 2 0 1 0 . l e tthose a short came cases returned him with when he a r r i v e d t o o p e n p a s t [ t h e ] shop, and jury indictment t h e same barbershop. 2008, "noticed from grand charging Each Rutledge a few customers After Evans, The o n May trial, Beyond the Joshawan Brown, L a r r y H u n t e r , began At 2009, robbery. b u t stemmed victims and 6, Rutledge b u t , a few with him. CR-09-1806 R u t l e d g e k n e w E v a n s b e c a u s e he h a d and had g o t t e n a shave After middle of holding from they the a b l u e gym his told who them the and bag not At shorter that move. area Evans shot Rutledge twice at whether had Evans. either that then grabbed he he dropped testified right. get that shot h i t Evans, h i t Evans. As his that white Evans Rutledge into At their but left the the was E v a n s was the door a gun cutting a t Bowden pointed the and and gun at a " t u s s l e " ensued. (R. Rutledge counter did found fleeing the and his gun. the barbershop and then not out and know later barbershop, Rutledge to the further testified t h a t he d i d n o t s e e t h e men vehicle i t was the because parked barbershop. A f t e r making sure that everyone was Rutledge unhurt, in barbershop, Rutledge cap by from a nearby time, baseball t h e gun then h i s gun stood Rutledge of R u t l e d g e , b u t Brown " r u s h e d " Evans and 112.) stood Evans then p u l l e d time, waiting Rutledge past. Evans man Evans p o i n t e d i n the to barbershop, the Initially, were i n the i n h i s hands. waistband. Brown's h a i r . Hunter, from Rutledge entered shop, s o l d magazines to called emergency 3 911. i n the ran behind barbershop CR-09-1806 Rutledge his call. met them testified that the When t h e p o l i c e a r r i v e d a t t h e b a r b e r s h o p , outside. The owner standing outside, and he Chevrolet automobile and told The p o l i c e pursued the p o l i c e q u i c k l y responded police: other man that "There the who of nearby pointed business was also an older model smoking badly was car Rutledge toward as i t drove away they had a to go and right there." apprehended entered the (R. Evans barbershop 116-17.) along with with Evans earlier. Hunter t e s t i f i e d of the barbershop "shorter guy" guy was guy came pointed there, then with entered holding in and walked us up his pointed the man getting his the gun and they haircut began gunshots. gun i n the a guy" 173.) The to Hunter, and the (R. and the guy that The man them. man was Hunter arm "tussling." (R. 174.) 4 the taller of out, sitting the gun getting testified the that was the a shorter gun with who grabbed Hunter t e s t i f i e d a area and "the brought 173.) at waiting "taller (R. shirt [Bowden], Rutledge the when According toward and sitting barbershop. n o b o d y move." haircut h e a r d two and was Bowden bag. lifted me he the a blue i t toward told that a that man with Hunter then taller guy was CR-09-1806 shot in the dropped his little b a c k and gun ragged little car Chevy." a p p r e h e n d e d by height and outside the car call who were that After started stop. his a progress stopped, walking away. driver Evans as driver the in, the men were i d e n t i f y them blue bag Birmingham at the at the was got A Cut Beyond scene, in Police two men to him out out tan-colored and car a stopped i t . of Myers ordered responded that the he and driver the car to going to was a f t e r O f f i c e r M y e r s drew h i s weapon get on the Myers's order. At the down person 5 by responded pointed away Myers p u r s u e d the driver to complied with O f f i c e r driving the see were they 2 0 0 8 , he barbershop Officer the 22, Myers a r r i v e d were he "did the the in car identified for robbery the shot, men. August Officer the that on suspects Initially, able to that, outside he that the officer was after stated identified a police aunt's house, but, ordered Shortly guy that street also car. the the taller H u n t e r was when he standing Chevrolet down When O f f i c e r two stated Hunter about the Hunter 179.) testified barbershop. the police, Myers, Department, a (R. the after fled. going size. Darryl to and that, who ground, trial, was and the driver Officer Myers seated in the CR-09-1806 passenger's Myers day, also seat o f t h e c a r when testified that, Evans had been shot. i d e n t i f i c a t i o n number that was license plate Hospital through the Evans's At O f f i c e r Myers checked the v e h i c l e - ("VIN") o f t h e c a r a n d t h e l i c e n s e p l a t e medical records on A u g u s t side profile of DNA that showed that 22, 2008, w i t h of h i s chest. blood found was i n s u f f i c i e n t of the State's to support first-degree-robbery State indicating property. After that failed Evans (R. 2 6 2 - 6 4 . ) May admitted the barbershop to wound t e s t i n g showed evidence, to that matched 12, 2010, set forth court the defense the j u r y counts of f i r s t - d e g r e e robbery. 6 found for a evidence on a n y o f t h e Evans sufficient to deprive trial moved the State's Specifically, intended The Evans a f i n d i n g of g u i l t y charges. t h e m o t i o n was d e n i e d , On he was DNA at person. profile. the close the t h e V I N and t h e a s i n g l e gunshot j u d g m e n t o f a c q u i t t a l on t h e g r o u n d t h a t that Officer i n the car that w e r e n o t r e g i s t e r e d t o t h e same the l e f t DNA stopped. when he saw E v a n s on t h e c a r , a n d he d i s c o v e r e d Evans's UAB i t was alleged evidence any p e r s o n denied that of h i s motion. rested. Evans guilty of On J u n e 2 1 , 2 0 1 0 , E v a n s four filed CR-09-1806 a pro se court motion f o r a new sentenced Evans, imprisonment without conviction. On Evans's motion appealed trial. as a the his convictions J u n e 25, habitual possibility August f o r a new On 16, 2010, trial. to On this the trial to life for each offender, of the 2010, parole trial September court 1, denied 2010, Evans court erred Court. I. On in appeal, Evans f i r s t a l l e g e s t h a t the d e n y i n g h i s motion f o r a judgment of says, the S t a t e p r e s e n t e d a c q u i t t a l because, i n s u f f i c i e n t evidence to support of h i s f i r s t - d e g r e e - r o b b e r y c o n v i c t i o n s . appears evidence victims to argue that indicating of their Section the that State he not present intended to deprive 13A-8-41(a), A l a . Code 1975, any of provides: crime of r o b b e r y i n S e c t i o n 13A-8-43 and the he: dangerous Causes s e r i o u s p h y s i c a l i n j u r y to another." Code 7 1975, any sufficient a d e a d l y weapon or 13A-8-43(a), A l a . he Evans property. "(1) Is armed w i t h i n s t r u m e n t ; or Section Specifically, did "A p e r s o n c o m m i t s t h e f i r s t d e g r e e i f he v i o l a t e s "(2) trial provides: the CR-09-1806 "A third he: p e r s o n commits degree i f i n the the crime of robbery i n the course of committing a t h e f t " ( 1 ) Uses f o r c e a g a i n s t t h e p e r s o n of t h e owner or any p e r s o n p r e s e n t w i t h i n t e n t t o overcome h i s p h y s i c a l r e s i s t a n c e or p h y s i c a l power of r e s i s t a n c e ; or " ( 2 ) T h r e a t e n s t h e imminent use of f o r c e a g a i n s t t h e p e r s o n of t h e owner o r any p e r s o n p r e s e n t w i t h i n t e n t to compel acquiescence to the t a k i n g of or escaping w i t h the p r o p e r t y . " Furthermore, it does not "robbery require that e l e m e n t s o f r o b b e r y t o be So. 2d 399, 402 ... a i s a crime theft be accomplished "Proof person; of for the Ex p a r t e V e r z o n e , established." ( A l a . 2003). a g a i n s t the 868 an actual taking of p r o p e r t y i s not r e q u i r e d to s u s t a i n a c o n v i c t i o n f o r robbery." C r a i g v. State, 893 So. "'[T]he former crime 2d of 1250, attempted robbery.'" C a s e y v. App. ( q u o t i n g P e t t y v. Crim. 2005) App. State, 925 So. State, ( A l a . C r i m . App. robbery 2d 414 1005, So. 2004). now constitutes 1006 (Ala. Crim. 2d 182, 183 (Ala. 1982)). Concerning conviction, 1256 this the sufficiency Court has of the evidence to sustain held: "'"In determining the sufficiency 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 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 S t a t e , accord the State a l l l e g i t i m a t e i n f e r e n c e s 8 a CR-09-1806 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 t h e 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. 2d 1033, 1034 ( A l a . C r i m . App. 1998), q u o t i n g F a i r c l o t h v . S t a t e , 471 So. 2 d 4 8 5 , 488 (Ala. C r i m . A p p . 1 9 8 4 ) , a f f ' d , 471 So. 2 d 493 ( A l a . 1985). '"The test used in determining the s u f f i c i e n c y of evidence to s u s t a i n a c o n v i c t i o n i s whether, v i e w i n g the evidence i n the l i g h t most f a v o r a b l e 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 d e f e n d a n t g u i l t y beyond a r e a s o n a b l e d o u b t . " ' 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 there i s l e g a l evidence from which the j u r y could, by f a i r i n f e r e n c e , f i n d t h e d e f e n d a n t g u i l t y , the t r i a l court should submit [ t h e c a s e ] to the j u r y , and, i n such a c a s e , 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 c o u r t ' s d e c i s i o n . " ' F a r r i o r v . S t a t e , 728 So. 2 d 6 9 1 , 696 ( A l a . C r i m . A p p . 1 9 9 8 ) , q u o t i n g W a r d 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 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 . ' " Ingram v. S t a t e , 878 So. 2 d 1 2 0 8 , q u o t i n g Ex p a r t e B a n k s t o n , 358 1210 So. ( A l a . C r i m . App. 2d 1040, 1042 ( A l a . 1978). Furthermore, " ' C i r c u m s t a n t i a l 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 , a l o n g w i t h the other evidence, i s s u s c e p t i b l e of a reasonable inference pointing unequivocally to the defendant's guilt. W a r d v . S t a t e , 557 So. 2 d 848 ( A l a . Cr. App. 1 9 9 0 ) . In r e v i e w i n g a c o n v i c t i o n b a s e d in whole or i n part on circumstantial 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 r e a s o n a b l y f i n d that the 9 2003), CR-09-1806 evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so c o n c l u d e . Cumbo v . S t a t e , 368 So. 2 d 871 ( A l a . C r . A p p . 1 9 7 8 ) , c e r t . d e n i e d , 368 So. 2 d 877 ( A l a . 1 9 7 9 ) . ' " "Ward, 610 So.2d at L o c k h a r t v. S t a t e , Concerning 715 1191-92." So. 2d 8 9 5 , intent, this 899 Court ( A l a . C r i m . App. has 1997). held: " [ I ] n t e n t i s a q u e s t i o n f o r the j u r y 'Intent, ... b e i n g a s t a t e or c o n d i t i o n of the mind, i s r a r e l y , i f ever, 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 , a n d m u s t u s u a l l y be i n f e r r e d f r o m t h e f a c t s t e s t i f i e d t o by w i t n e s s e s and t h e 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 . ' Pumphrey v. S t a t e , 156 A l a . 1 0 3 , 47 So. 1 5 6 , 157 (1908)." McCord v. State, 501 So. 2d 520 , 528-29 (Ala. Crim. App. 1986). In the evidence present in a light case, considering, most f a v o r a b l e as we must, to the State, we a l l the hold 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 Evans g u i l t y that beyond a r e a s o n a b l e doubt of a l l f o u r counts of f i r s t - d e g r e e robbery. The evidence saw the space presented shorter of barbershop man by Evans State indicated past walk approximately with the the barbershop two a few minutes minutes 10 and then later. that Rutledge twice in the return to the Based on that CR-09-1806 evidence, the jury and h i s a c c o m p l i c e c o u l d have t h a t t h e s h o r t e r man to The was State's evidence after an that had a gun, that, after bag Evans E v a n s and parked out of on car the were license plate the person. B a s e d on t h o s e facts, and not indicated e n t e r i n g the s h o r t e r man sight; before that could t h r e a t e n i n g everyone i n the altercation, been that further c a r r y i n g a b l u e gym c a r r y away p r o p e r t y ; Evans produced inferred were s u r v e y i n g the scene i m m e d i a t e l y they e n t e r e d the shop. used reasonably be shop, shop; that, fled in a car the VIN and that registered to c o n t r a r y to Evans's the same allegation, the j u r y c o u l d have r e a s o n a b l y i n f e r r e d t h a t Evans i n t e n d e d compel the taking or e s c a p i n g The could were Again, walk past the minutes whole, a with reasonably s u r v e y i n g the Evans of everyone i n the barbershop to few inferred scene Rutledge and then minutes i t seems t h a t Evans immediately testified barbershop twice r e t u r n to later. highly the property. d i s s e n t t a k e s i s s u e w i t h our c o n c l u s i o n t h a t the have shop. two acquiescence to i n the Based probable 11 before t h a t he the and accomplice they entered the the shorter man saw space his jury of barbershop approximately with an on the circumstances that the men were armed as a surveying CR-09-1806 the scene. t o be strolling pleasure an It i s u n l i k e l y that b a c k and a few this In Court, surveying have forth any to the event, reasonably We he entered i t i s the determine scene. s h o r t e r man i n f r o n t of minutes before a r m e d man. the factually hold inferred the the duty barbershop the the men for barbershop of with the jury, the men were certainly could whether that that j u s t happened jury were not surveying the scene. Next, while the shorter dissent carry variety man points gym agreeing could out be that clothes, of o t h e r t h a t the used the to gym agree. duty of the j u r y to decide, i n the presented, whether away p r o p e r t y could have or i n f e r r e d that to conclude bag an to t h a t when a man away context of the purpose I t i s not armed a c c o m p l i c e , carry the gym of t h e man 12 property, also be tools, or used a The the gym the evidence was jury to vast i t was of a l l the bag the to carry certainly bag was to u n r e a s o n a b l e o r mere g u e s s w o r k c a r r y i n g a gym property. away c a r r i e d by However, a g a i n , to c a r r y something e l s e . c a r r y away p r o p e r t y . with purpose t h a t was could burglary We the bag carry bag groceries, items. gym bag enters i s i n t e n d i n g t o use a store that gym CR-09-1806 The Evans "out dissent and of Evans the also other sight." fled, building park testified and out issue fled in a who that of h i s s i g h t . car was the in front with our that in car statement had the was been parked barbershop parked Rutledge that also when behind their of the barbershop car i n the p a r k i n g l o t i n f r o n t the barbershop reasonably purposefully people in intended We inferred attempted the wielding that Evans and to hide barbershop, the whom of the a gun, and his car from Evans and the testified that within C o n s i d e r i n g t h a t Evans and h i s a c c o m p l i c e chose before entering have man Rutledge, t h e p a r k i n g l o t was sight. takes not could accomplice sight his to barbershop the j u r y the his had of the accomplice to accost. conclude that the State presented evidence from which the j u r y c o u l d have r e a s o n a b l y i n f e r r e d t h a t Evans i n t e n d e d t o compel the acquiescence of everyone t a k i n g or e s c a p i n g w i t h p r o p e r t y . State presented convictions did not sufficient err in denying T h e r e f o r e , we evidence for first-degree i n the barbershop to robbery; Evans's acquittal. 13 support thus, motion the for to the hold that the Evans's four trial court judgment of CR-09-1806 II. Lastly, cases Evans that named reversed. cases, adverse but he was "denied witnesses the at affidavits signed nor by not Confrontation witnesses him alleges as right to the two should in be those two cross-examine i s guaranteed testified in victims that, of a w a r r a n t Bowden is introduced Clause only of by the Brown and Sixth Bowden f o r Evans's a r r e s t , at trial. the trial, i t does not introduced at trial. accused "to While and jury be (Evans's merit. the arrest trial. The to the in a Therefore, United criminal with Confrontation some o u t - o f - c o u r t v. The o f an confronted Washington, to o u t - o f - c o u r t 14 at Amendment the Crawford apply the Sixth right him." without Bowden i n s u p p o r t to gives the against at completely presented a p p l i e s to i n - c o u r t testimony not the fundamental Brown and Constitution prosecution (2004), as C o n s t i t u t i o n " because allegation were States convictions 31-32.) Evans's warrant Bowden i n support Brown his Evans his U.S. that and against affidavits neither brief, Brown Specifically, Amendment o f signed alleges Clause statements U.S. 36 statements that are Evans's 541 the allegation does CR-09-1806 not present a valid ground for the reversal of his convictions. Furthermore, this because Evans d i d not issue i s barred present this from specific appellate review i s s u e to the trial court. " ' R e v i e w on a p p e a l i s r e s t r i c t e d t o q u e s t i o n s and i s s u e s p r o p e r l y a n d t i m e l y r a i s e d a t t r i a l . ' Newsome v. State, 570 So. 2d 703, 717 (Ala. Crim. App. 1 9 8 9 ) . 'An i s s u e r a i s e d f o r t h e f i r s t t i m e on a p p e a l i s not s u b j e c t t o a p p e l l a t e r e v i e w b e c a u s e i t has n o t b e e n p r o p e r l y p r e s e r v e d and p r e s e n t e d . ' P a t e v. S t a t e , 601 So. 2d 2 1 0 , 213 ( A l a . C r i m . App. 1992)." Ex parte Coulliette, constitutional court or they 857 issues are ( A l a . C r i m . App. not properly for review 28(a)(10), an must waived." 822 this A l a . R. appellate Evans App. brief P., reasons other therefor, authorities, and be is the not has (Ala. 2003). raised v. of 15 723 is properly failed So. "the trial 2d 821, issue this comply t h a t an Court with of to the i s s u e s p r e s e n t e d , the the record cases, relied Rule argument i n contentions to was waived. before to "Even the because t h i s issue citations parts before State, which requires contain with 794 Therefore, appellant/petitioner with respect the 793, Stanley trial, claim because 2d first 1998). r a i s e d at Moreover, So. the and statutes, on." This CR-09-1806 C o u r t has to do stated: " ' I t i s not a party's legal appellate courts to the job of the a p p e l l a t e r e s e a r c h . Nor "make a n d i s i t the f u n c t i o n address legal sufficient So. 2d 1060, Indus., 1110 1074 I n c . v. without deemed without adequate 2d 820, App. 1999). of 827 the to any claim. satisfy arguments (Ala. Crim. thus, the Based is Therefore, Evans's requirements the of Rule issue on is the 740 State, So. 926 Pileri 2d 1108, of authority and r e l i e d upon has been S k i n n e r v. 2002). legal bare for a "[r]ecitation listed." App. the supported quoting legal of the f a c t s t h i s C o u r t , E v a n s does n o t c i t e any his Inc., Furthermore, citation recitation Hodges v. 2005), C o n s o l i d a t e d Indus., a waiver So. or argument."'" (Ala. Crim. ( A l a . C i v . App. allegations 843 authority of arguments p a r t y b a s e d on u n d e l i n e a t e d g e n e r a l p r o p o s i t i o n s n o t by courts State, In h i s b r i e f a u t h o r i t y to allegation 2 8 ( a ) ( 1 0 ) , A l a . R. to support does not App. P.; waived. f o r e g o i n g , the judgment of the trial court Welch, P.J., affirmed. AFFIRMED. Windom, K e l l u m , and Joiner, dissents with opinion. 16 J J . , concur. CR-09-1806 WELCH, P r e s i d i n g J u d g e , dissenting. B r y a n t E v a n s was c o n v i c t e d robbery. dissent of The m a j o r i t y a f f i r m s t h e c o n v i c t i o n s ; I r e s p e c t f u l l y because the State f i r s t - d e g r e e robbery The majority presented by d i d not present a prima f o r any o f t h e f o u r has accurately the State. The where t h e i n c i d e n t o c c u r r e d , he of four counts of f i r s t - d e g r e e Michael the of the Rutledge, evidence barbershop testified knew E v a n s b e c a u s e E v a n s h a d s o l d h i m m a g a z i n e s on occasions the p a s t . who was and pass were On t h e m o r n i n g o f t h i s shorter by than Evans t h e shop and R u t l e d g e sitting entered door. several i n c i d e n t , R u t l e d g e saw a man walk again. past A a blue Evans area accompanied gym pulled h i s shop, short while bag. by The a gun f r o m the d i r e c t i o n o f t h e two w a i t i n g not t o move. turn around, later, a male i n one o f t h e b a r b e r ' s was c u t t i n g B r o w n ' s h a i r . i n the waiting t h e shop carrying that and because Evans had been a b a r b e r s h o p customer i n c u s t o m e r , J o s h a w a n B r o w n , was s i t t i n g chairs case counts. summarized proprietor facie Two of the small the shorter shorter man shop. man, stayed h i s waistband, customers, other Evans who was near the pointed and t o l d men i t in t h e men Evans then w a l k e d toward R u t l e d g e and Brown, and 17 CR-09-1806 he pointed Evans got grabbed toward above to the men, gun. As the two counter. man gun was man w i t h the barbershop; Rutledge were injuring the customers him. r e c o v e r e d by bag the Rutledge panicked, ran then grabbed h i s gun from two s h o t s a t E v a n s as he barbershop; police. established gun he and then who was told the waiting tussled with chair. Evans lost control and other man attempted of the to the the Evans customer nor the in the One a bag, customers and he was leave the shop, the entered to i n the only of that not gun shop; said t h a t Evans had and struck f o u r men the shop. carrying the inside that into man shot N e i t h e r Evans evidence walked one h i s gun a n y t h i n g from first with When and demanded the Rutledge. Evans dropped the at tussled i n the w a i t i n g area t e s t i f i e d the that the Brown fired Evans shop w i t h a n o t h e r pointed and head, tussled, leaving " D o n ' t move," when he the Brown's t h e b a t h r o o m t o g e t away, and other Evans, gun closer the a nearby the the Evans move, barber's shot the as he witness said. Evans and when stop. a police the second officer Officers man were apprehended near followed their determined that 18 the vehicle vehicle and the scene executed a identification CR-09-1806 number The ("VIN") d i d n o t match b l u e bag R u t l e d g e and found from inside Evans argues denied court, of as he evidence this issue, f o r a judgment the State's of law facts The sustain appeal, that In t h e m a j o r i t y has here the presented case. robbery. disagreement to i t s owner, d o e s on any or at the at the test t a g on testified scene. or the i s with as the vehicle. a b o u t was Nothing was not taken customers. on a p p e a l t h a t t h e t r i a l the motion conclusion license the customer the v e h i c l e the barbershop, the c o u r t e r r e d when i t of a c q u i t t a l Evans he argued made a t i n the the State f a i l e d rejecting Evans's to trial present argument s e t out the r e l e v a n t caselaw. the majority's application adduced from the evidence sufficiency of of in determining a conviction the i s whether, v i e w i n g the evidence evidence in factfinder the parte 2d Stewart, 900 W e b s t e r v. S t a t e , 900 So. So. appellate 475, 2d 460, 476-77 463 the Ex (Ala. 2004)(quoting ( A l a . C r i m . App. courts i s to determine 19 to could g u i l t y beyond a reasonable doubt. of the My actually have found the defendant role on trial. l i g h t most f a v o r a b l e t o t h e S t a t e , a r a t i o n a l The the 2004)). whether the CR-09-1806 evidence i s l e g a l l y sufficient, by find fair inference, Section first the 13A-8-41(a), that i s , whether a j u r y c o u l d , defendant A l a . Code "A p e r s o n c o m m i t s t h e d e g r e e i f he v i o l a t e s guilty. 1975, Id. provides: crime of robbery i n S e c t i o n 13A-8-43 and "(1) I s armed w i t h a d e a d l y weapon o r instrument; or the he: dangerous "(2) Causes s e r i o u s p h y s i c a l i n j u r y t o a n o t h e r . " Section 13A-8-43(a), A l a . Code "A p e r s o n c o m m i t s t h i r d degree i f i n the he: 1975, provides: the crime of robbery i n the course of c o m m i t t i n g a t h e f t "(1) Uses f o r c e a g a i n s t t h e p e r s o n of t h e owner o r any p e r s o n p r e s e n t w i t h i n t e n t t o overcome h i s p h y s i c a l r e s i s t a n c e or p h y s i c a l power of r e s i s t a n c e ; or "(2) T h r e a t e n s the imminent use of f o r c e a g a i n s t t h e p e r s o n o f t h e owner o r any p e r s o n p r e s e n t w i t h i n t e n t to compel acquiescence to the t a k i n g of or escaping w i t h the p r o p e r t y . " After quoting the relevant principles, r e s t a t e s i t s summary o f t h e e v i d e n c e and, to be conjecture presented a prima and surmise facie to the majority employs what conclude that the appears State case: "[W]e h o l d t h a t a r a t i o n a l f i n d e r o f f a c t c o u l d h a v e found Evans g u i l t y beyond a r e a s o n a b l e doubt of a l l four counts of f i r s t - d e g r e e robbery. The evidence p r e s e n t e d by t h e S t a t e i n d i c a t e d t h a t R u t l e d g e saw 20 CR-09-1806 t h e s h o r t e r man walk past the barbershop twice i n the space of a p p r o x i m a t e l y t e n m i n u t e s and then r e t u r n t o t h e b a r b e r s h o p w i t h E v a n s a few minutes later. B a s e d on t h a t e v i d e n c e , t h e j u r y c o u l d h a v e reasonably i n f e r r e d t h a t E v a n s and h i s a c c o m p l i c e were s u r v e y i n g the scene immediately before they entered the shop. The State's evidence further i n d i c a t e d t h a t t h e s h o r t e r man was c a r r y i n g a b l u e gym b a g t h a t c o u l d be u s e d t o c a r r y away p r o p e r t y ; t h a t , a f t e r e n t e r i n g t h e shop, E v a n s p r o d u c e d a gun, t h r e a t e n i n g e v e r y o n e i n t h e s h o p ; t h a t , a f t e r an a l t e r c a t i o n , E v a n s a n d t h e s h o r t e r man f l e d i n a c a r t h a t had b e e n p a r k e d out o f s i g h t ; and t h a t t h e VIN a n d l i c e n s e p l a t e on t h e c a r w e r e n o t r e g i s t e r e d t o t h e same p e r s o n . B a s e d on t h o s e f a c t s , c o n t r a r y t o Evans's a l l e g a t i o n , the j u r y c o u l d have reasonably inferred that Evans intended to compel the a c q u i e s c e n c e of everyone i n the barbershop to the t a k i n g or e s c a p i n g w i t h property." So. 3d at (emphasis Without has any concluded shorter man indicates turned the were around minutes testimony that only jury the the was the shorter he entered is no initially, anything -- minutes later. only or that The of the that he to the walked majority 21 that man past the has added man's w a l k p a s t the that men was shop a and few walked "surveying" and this shop. shop Evans the the testimony the shop w i t h shorter majority The walked past testimony the the conclude scene." man that together witnesses, free There later. interpretation from "surveying that and added). So, returned post too, hoc did CR-09-1806 the majority carry that is a a gym to bag true of gym the Furthermore, been the the could testified contrary was no the of to blue clothes or of "could is correct, carry gym reasonably bag here he d i d not (R. to the tools only or by that the sight." car That inferred the therefrom. car was " p a r k e d on the inference drawn by t h a t Evans had bag. left car i n Rutledge's the in too, or after back of majority, hidden the "'"This Court is well aware that where ' c i r c u m s t a n t i a l e v i d e n c e p o i n t s to the g u i l t of the accused, i t w i l l support a conviction as strongly as direct evidence.' Newsome v . S t a t e , 570 So. 2d 703, 710 ( A l a . C r . App. 1989). Accord, J o n e s v. State, 514 So. 2d 10 60 , 10 67 ( A l a . C r . A p p . ) , c e r t . d e n i e d , 514 So. 2d 10 68 ( A l a . 1 987). H o w e v e r , 'no r u l e i s more f u n d a m e n t a l o r b e t t e r s e t t l e d t h a n 22 that Rutledge i n t o the not -¬ evidence get was been statement, men car i t carrying Evans the the evidence suggesting in see The but groceries carried states to course, have the been 115.) used of could have be be away p r o p e r t y , limited could "out bag burglary items, majority shot Evans because but majority used gym f a c t s a c t u a l l y e s t a b l i s h e d by that building." blue be bag, parked overstates he the The that variety capacity that could carry vast had that away p r o p e r t y . " equally used add the sight, there vehicle. CR-09-1806 t h a t c o n v i c t i o n s c a n n o t be p r e d i c a t e d u p o n surmise, speculation, and suspicion to e s t a b l i s h the accused's c r i m i n a l agency i n the o f f e n s e c h a r g e d . ' B e n e f i e l d v. S t a t e , 28 6 A l a . 722 , 7 2 4 , 24 6 So. 2 d 4 8 3 , 485 ( 1 9 7 1 ) , q u o t e d i n C r a f t s v . S t a t e , 439 So. 2 d 1 3 2 3 , 1325 ( A l a . C r . A p p . 1983)." " ' A t w e l l v. App. 1991), 1992). State, cert. 594 S o . denied, 2d 202, 594 So. 213 2d ( A l a . Cr. 214 ( A l a . "'"'"While a j u r y i s under a duty to draw whatever permissible inferences i t may from the evidence, including circumstantial evidence, mere speculation, conjecture, or surmise that the accused is guilty of the o f f e n s e charged does not a u t h o r i z e a c o n v i c t i o n . [Citations omitted.] A defendant should not be c o n v i c t e d on m e r e s u s p i c i o n o r o u t o f f e a r t h a t he m i g h t h a v e committed the crime. Harnage v . S t a t e , 49 A l a . A p p . 5 6 3 , 274 So. 2d 333 (1972) . While reasonable inferences from the e v i d e n c e may f u r n i s h a b a s i s f o r p r o o f beyond a r e a s o n a b l e doubt, R o y a l s v. S t a t e , 3 6 A l a . App. 1 1 , 56 So. 2 d 3 6 3 , c e r t . d e n i e d , 256 A l a . 390, 56 So. 2d 368 (1951), mere possibility, suspicion, or guesswork, no matter how strong, will not overturn the presumption of innocence. [Citations omitted.] "'"'"An i n f e r e n c e i s m e r e l y a p e r m i s s i b l e deduction from the 23 CR-09-1806 proven f a c t s which the j u r y may accept or r e j e c t or g i v e such p r o b a t i v e v a l u e t o as i t w i s h e s . [Citations omitted.] It is a l o g i c a l and r e a s o n a b l e d e d u c t i o n from the evidence and is not supposition or conjecture. Guesswork i s not a substitute. [Citations omitted.] A supposition is a conjecture based on the possibility or p r o b a b i l i t y that a thing could have or may have occurred without proof that i t d i d occur. [Citation omitted.] The possibility that a thing may occur i s not alone evidence, even c i r c u m s t a n t i a l l y , t h a t the thing did occur."'" " ' P a t t e r s o n v . S t a t e , 538 So. 2d 3 7 , 42 (Ala. C r . App. 1987), c o n v i c t i o n r e v ' d , 538 So. 2d 43 ( A l a . 1 988 ) , q u o t i n g Ex parte Williams, 468 So. 2d 99, 101-02 (Ala. 1985).'" "Mullins Cr. App. Boyington v. C i t y o f D o t h a n , 1998)." v. State, 19 9 9 ) ( e m p h a s i s 748 added), [Ms. 0 9 - 1 5 4 0 , May App. 2d quoted So. 8 97 , inference the evidence that barbershop. presented Evans The had So. 83, 901 in part 2011] 2d in this the intent evidence 24 was 3d 86 (Ala. (Ala. Crim. in J.M.A. case to , v. App. State, 2011). The 27, So. 724 (Ala. Crim. does not rob equally the justify an f o u r men in indicative of CR-09-1806 personal toward be a n i m u s t o w a r d o n e o f t h e men, p a r t i c u l a r l y whom E v a n s was w a l k i n g pointing directed intent The to r o b any kidnap, barbershop. and more than o r harm In fact, who that but had been was no i n f e r e n c e there believed disagree with h e was f r i g h t e n e d Evans of Although missing taking defined I intended those element evidence with support an a f f i r m a n c e testimony the area they to i n its eyewitnesses. establish the to the an i n f e r e n c e i s from proven f a c t s , " and a r e supported by I have c a r e f u l l y a n d I do n o t f i n d o f any o f t h e f o u r 25 that acquiescence inferences and shoot him, by t h e m a j o r i t y from to I respectfully the property," facts. intent inside the Evans might t o compel deduction evidence the State presented, to an i n the waiting are intended the majority's or proven d i d n o t r e v e a l an r o b anyone. made move," t h a t he p a n i c k e d their testimony of "intent as "a p e r m i s s i b l e do n o t b e l i e v e the to inferences of or escaping that from the inferences the limited "Don't i t revealed Rutledge said only the witness appeared t o a n y o r a l l t h e men testified summary statement, t o t h e t w o men i n t h e w a i t i n g a r e a threaten, ran, t h e weapon. a n d a t whom E v a n s Rutledge, examined t h e i t sufficient convictions of CR-09-1806 first-degree been, the steal, jury robbery. State and could Whatever failed the State intent t o e s t a b l i s h t h a t he failed reasonably Evans's to present infer that had might the evidence have i n t e n t to from which first-degree robberies a were committed. Because I b e l i e v e t h a t these on a combination suspicion, I would denied that the on the Evans's motion menacing, surmise, r a t h e r than hold because to of jury reasonable erred evidence remand the to to was also the trial App. Martinez 2006)(appellate a c o n v i c t i o n and order However, charge court for i t (R. 323), and to v. State, 98 9 So. courts have on w h i c h sentence 2d 1143 a u t h o r i t y to e n t r y o f j u d g m e n t on the foregoing reasons, 26 the him (Ala. reverse a lesser-included offense). For of of f o u r counts of the l e s s e r - i n c l u d e d charged, See inference, acquittal. the and r e v e r s a l when i t supported case predicated speculation, o f m e n a c i n g , § 1 3 A - 6 - 2 3 , A l a . Code 1975, accordingly. Crim. court and f o r a judgment of adjudge Evans g u i l t y offense conjecture, evidence trial State's I would c o n v i c t i o n s were I respectfully dissent.

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