Steven Todd Johnson 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 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 , A l a b a m a 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-10-0476 Steven Todd J o h n s o n v. S t a t e o f Alabama Appeal WELCH, Presiding from Lauderdale C i r c u i t (CC-10-187) Court Judge. S t e v e n T o d d J o h n s o n was c h a r g e d w i t h t w o c o u n t s o f f i r s t degree theft and one c o u n t 1975, o f a motor v e h i c l e , of third-degree f o r h i s involvement § 1 3 A - 8 - 3 , A l a . Code 1 9 7 5 , burglary, i n the thefts § 1 3 A - 7 - 7 , A l a . Code of a Kawasaki brand CR-10-0476 "mule" u t i l i t y vehicle and a four-wheeler. Johnson was also charged w i t h u n l a w f u l p o s s e s s i o n of a c o n t r o l l e d substance, § 13A-12-212, motion, Ala. Code 1975. On controlled-substance charge charges. t r i e d b e f o r e a j u r y a n d was the Johnson theft and was burglary was Johnson's severed charges. The from trial the the remaining convicted court on sentenced Johnson, a h a b i t u a l f e l o n y offender, to serve three concurrent 10-year terms to court pay assessment This of imprisonment, to costs, attorney fees, Crime ordered restitution, Victims Johnson and an Fund. S t a t e ' s e v i d e n c e t e n d e d t o show t h e f o l l o w i n g . The Alabama the court Compensation Jimmy appeal the and follows. Abernathy t e s t i f i e d t h a t he lived approximately one-half mile f r o m M i l d r e d and A l f r e d J o h n s o n , t h e d e f e n d a n t ' s g r a n d p a r e n t s . On the morning o f D e c e m b e r 9, 2 0 0 9 , A b e r n a t h y d i s c o v e r e d his Kawasaki-brand m u l e was the back of h i s garage, beneath that and he his brother, drove Abernathy's around brother a lean-to and t h a t a g o - c a r t had b e e n moved t h e l e a n - t o a n d was said m i s s i n g from beneath i n f r o n t of h i s garage. Paul Abernathy, in soon the area found 2 to the learned look mule that and from Abernathy of the for on the theft, mule. telephoned CR-10-0476 Abernathy, and A b e r n a t h y went t o t h e had been abandoned. was location man on a f o u r - w h e e l e r ; t h e two men on t h e f o u r - w h e e l e r , l e a v i n g t h e m u l e . and his testified when that i t had been mule within stolen. recovered i t held speakers, none cross-examination, Johnson the Abernathy said 20 minutes Finally, t h a t t h e m u l e h a d b e e n e m p t y when i t was i t was stereo recovered on of a which Abernathy h i s p r o p e r t y , nor mule one fled discovering the When A b e r n a t h y ' s b r o t h e r a r r i v e d , on t h e m u l e a n d a n o t h e r was brother where testified d i d he to that see of Abernathy stolen, g e n e r a t o r , a bag, belonged he but and some Abernathy. On he d i d not see Johnson driving the mule. Adam M c C o r m i c k t e s t i f i e d that on t h e m o r n i n g of December 9, 2 0 0 9 , he d i s c o v e r e d t h a t h i s P o l a r i s b r a n d f o u r - w h e e l e r h a d been stolen from h i s garage. added s p e c i a l t i r e s , wheeler, and device. He December 9, when they stated that he w h e e l s , e x h a u s t , and a w i n c h t o t h e a mount reported and McCormick for a Global-Positioning the t h e f t to the s h e r i f f ' s investigators recovered investigators verified i t . System c o n t a c t e d him McCormick on four- ("GPS") department on December 10, testified that that the v e h i c l e - i d e n t i f i c a t i o n 3 had the number CR-10-0476 on the given recovered them ignition that had t h e GPS mud. had and been number property. broken out He of been taken from the McCormick also said the said stolen from that a that the and bag h i s garage, and and the d i s c o v e r e d the in the been garage. he c l o s e d when he McCormick h i s p r o p e r t y or Abernathy, t a n k where a he last Jimmy's theft, his saw his he of identified mule a window that testified riding that he was set r e c o v e r e d from Abernathy's day had four-wheeler o p e n on on said gas testified window had McCormick four-wheeler the McCormick the Paul the items. g a r a g e was Johnson his stereo speakers stolen was McCormick i t . in speakers been mount had mounted the bag identify s w i t c h had covered the to four-wheeler as in the and that four-wheeler did not see on the four-wheeler. brother, stated that m o r n i n g o f D e c e m b e r 9, 2 0 0 9 , a f t e r h i s b r o t h e r d i s c o v e r e d t h a t his mule had been looked for i t . stolen, a g r a v e l road, wheeler front of four-wheeler identical the one and Terry. McCormick's to drove P a u l s t a t e d t h a t he t h e m u l e on in Paul he saw then Paul and Johnson he was 4 around i n the Mitchell and Terry driving J o h n s o n on saw a four- examined stated riding area a photograph that that day. i t of looked He said CR-10-0476 t h a t he was they lived Mitchell By f a m i l i a r w i t h J o h n s o n and the in time same because was the he Paul turned l o c a t i o n w h e r e he h a d on the had it mule gotten from that had had two before; Paul Johnson standing, and testified that or He him s e e n t h e men, i n the around Paul T e r r y t o l d him three like the days one Terry came up told Johnson and Terry t o go he 96.) brother When P a u l t u r n e d and four-wheeler the scene. not see tell him he t o go had also. Paul where told Terry from h i s b r o t h e r knew the mule chain hanging Paul and Paul had "were both still the mule, Terry the was his from the Terry what he borrowed said. were Paul trying got to else." to h i s t r u c k to telephone found the engine p l a y i t o f f t h a t t h e y b o r r o w e d [ t h e m u l e ] f r o m somebody (R. who back to Terry earlier. t o where Johnson knew t h a t t h e y had r e c o g n i z e d the key then he community asked stolen that said because he n o t i c e d t h a t t h e running. testified b r o t h e r ' s b e c a u s e he ignition. seen his vehicle t h e m u l e , and the mule l o o k e d night community. stopped a friend t h a t he k n e w h i m on his the w i t h J o h n s o n , a n d J o h n s o n d r o v e r a p i d l y away f r o m On Johnson cross-examination, driving the mule. 5 Paul testified t h a t he did CR-10-0476 James B r a d l e y County S h e r i f f ' s P o t t s , an i n v e s t i g a t o r w i t h Department, t e s t i f i e d D e c e m b e r 9, 2 0 0 9 , he r e c e i v e d a four-wheeler the went to belonged the from about t h e t h e f t s o f and r e t u r n e d residence and t h e b e d o f t h e mule t o M c C o r m i c k ; he r e c o v e r e d b e d o f t h e mule on t h e m o r n i n g o f When a d e p u t y recovered Abernathy's recovered information and a mule. mule had been that the Lauderdale informed him that to Abernathy, him. He a bag and speakers that several from b u t was u n a b l e spoke with Potts other items to determine who owned them. Potts the testified crimes and that that Johnson law-enforcement Johnson's v e h i c l e at Terry's permitted officers found h i d i n g Charles mother's to search inside that Brian and Terry were suspects officers house. t h e house, discovered Terry's and both in mother men were residence. Pigg testified that Johnson i s his stepbrother. He s t a t e d t h a t h e was s t a y i n g w i t h h i s m o t h e r o n December 9, 2009, morning. When P i g g other riding and opened vehicle outside. a Johnson four-wheeler knocked the door, He s a i d t h a t that, he 6 on the door that he d i d n o t s e e a c a r o r Terry said, came t o t h e h o u s e looked like the CR-10-0476 photograph o f M c C o r m i c k ' s f o u r - w h e e l e r he was P i g g t o l d T e r r y t h a t t h e f o u r - w h e e l e r was he had gotten purchased Johnson left Lauderdale and told for w i t h T e r r y on Davis the testified Pigg with 10 or looking During 11, for that he was a search of were and Johnson, vehicle the a coffee table t r e e ; both Office taken where mother testified employed had that behind house, to pursue Terry's Johnson into custody, him that he that he house. Terry behind Davis on mother's found hiding that said Davis officers and the fugitives testified Potts told and by assigned to d u t i e s Davis 2009, I n v e s t i g a t o r Terry asked his Pigg trial. four-wheeler. felony warrants. Johnson's beneath that C o u n t y S h e r i f f ' s O f f i c e b u t was people located n i c e and him. the U n i t e d S t a t e ' s Marshal's December was Terry four-wheeler the Lowery with i t . shown a t a hiding Christmas said. I. Johnson theft of failed argues, argues property to prove as acquittal he that cannot his stand the elements d i d when he at t r i a l , convictions because, he of t h a t crime. made h i s m o t i o n s for says, the State Specifically, he f o r a judgment of t h a t § 13A-8-3, A l a . Code 7 first-degree 1975, requires CR-10-0476 proof of theft of property with the theft failed o f a motor v e h i c l e to prove either Kawasaki mule, o r t h a t mule were purposes "motor o f any v a l u e the value and t h a t the State of the four-wheeler or the t h e four-wheeler and t h e Kawasaki vehicles" of the theft a v a l u e i n e x c e s s o f $2,500 o r as statute. that Johnson term brand i s defined further for argues: "A 'motor v e h i c l e ' i s defined by t h e Mandatory L i a b i l i t y I n s u r a n c e A c t as 'Every v e h i c l e t h a t i s d e s i g n e d a n d m a n u f a c t u r e d t o b e o p e r a t e d on t h e s t r e e t s and highways o f Alabama, b u t n o t o p e r a t e d upon rails.['] A L A . CODE § 32-7A-2 (1975). [emphasis added) A c c o r d i n g t o A L A . CODE § 3 2 - 8 - 2 , the Alabama Uniform Certificate of Title and Antitheft Act states t h a t t h e t e r m 'motor v e h i c l e ' includes 'every automobile, motorcycle, mobile t r a i l e r , semitrailer, truck, truck tractor, t r a i l e r , and o t h e r d e v i c e t h a t i s s e l f - p r o p e l l e d o r drawn, i n , upon, o r by w h i c h any p e r s o n o r p r o p e r t y i s o r may b e t r a n s p o r t e d o r d r a w n u p o n a p u b l i c h i g h w a y . ' (emphasis added)[.] A l s o , a c c o r d i n g t o A L A . CODE § 8-20A-1 (1975), Title 8 of Commercial Law a n d Consumer P r o t e c t i o n defines a motor v e h i c l e as a ' v e h i c l e i n t e n d e d p r i m a r i l y f o r u s e a n d o p e r a t i o n on the p u b l i c highways.' (emphasis a d d e d ) [ . ] " (Johnson's b r i e f , a t p. 18.) Johnson concludes that, because n e i t h e r stolen could the here truly theft could be l i c e n s e d be c o n s i d e r e d or driven of the "vehicles" on r o a d w a y s , t o be a m o t o r v e h i c l e statute. 8 neither as d e f i n e d by CR-10-0476 The is State c l e a r , so statutes -- contends that there as i s no Johnson the need language of the to suggests resort -- C o u r t needs to engage i n j u d i c i a l The State value, and the the mule we evidence. challenge the case. construe court's and The to a taking utility in this trial acquittal a t h e f t as include First, to analysis i t contends construction of ruling challenge on to such as agree with Johnson's the the s u f f i c i e n c y of other that this of the statute. defining argument motions the the to four-wheeler State. be s u f f i c i e n c y of the matter a challenge f o r a judgment oft-stated p r i n c i p l e s governing the of a m o t o r v e h i c l e no vehicles We statute statute, argues t h a t the p l a i n words of the first-degree its and to theft evidence the the State's review are: " ' 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 e v i d e n c e to s u s t a i n a c o n v i c t i o n , 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 b y t h e S t a t e , accord the State a l l legitimate 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 f a v o r a b l e to the p r o s e c u t i o n . F a i r c l o t h v. State, 471 So. 2d 485 ( A l a . C r i m . App. 1 984 ) , a f f ' d , 471 So. 2d 493 (Ala. 1985).' Powe v . S t a t e , 597 So. 2d 721 , 724 (Ala. 1991). I t i s not the f u n c t i o n of this Court to decide whether the evidence is b e l i e v a b l e b e y o n d a r e a s o n a b l e d o u b t , P e n n i n g t o n v. State, 421 So. 2d 1361 ( A l a . C r i m . App. 1 982); r a t h e r , the f u n c t i o n of t h i s C o u r t i s to d e t e r m i n e whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a 9 of of CR-10-0476 reasonable doubt. D a v i s v . S t a t e , 598 So. 2 d 1054 (Ala. C r i m . App. 1992 ) . Thus, '[t]he role of a p p e l l a t e c o u r t s i s not t o say what t h e f a c t s a r e . [Their 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 t o a l l o w s u b m i s s i o n o f an i s s u e f o r d e c i s i o n [ 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 . 197 8 ) ( e m p h a s i s o r i g i n a l ) . " Ex parte parte Tiller, Woodall, 730 Although outside this So. So. Johnson statutory we and are to determine intent based So. term Criminal (11th vehicle not and "motor Code. ed. to established give in a statute 2003) engage vehicle" statutes m u s t be understood of the 2010). in judicial i s not defines "motor o p e r a t e d on rails." 10 given meaning, language [Ms. C R - 0 8 - 1 7 2 8 , Nov. Merriam-Webster's resolve and e f f e c t to the l e g i s l a t u r e ' s meaning App. Ex p r i n c i p l e of Only 5, the 2010] is do we no look construction. defined Collegiate vehicle" in i f there to i n t e r p r e t the words of the s t a t u t e those words The clear (Ala. Crim. way reference Code i s n e c e s s a r y t o words S t a t e v. Adams, 3d rational beyond E.g., the that commonly and (Ala. 2 001)(quoting (Ala. 1998)). I t i s an that natural, 312 658 Criminal courts statute. 652, disagree. on 310, argues construction plain, 2d 2d of the Alabama issue, their 796 as "Automotive" i n the Alabama Dictionary "an 811 automotive i s defined as CR-10-0476 "of, related machines." plain t o , or concerned w i t h I d . a t 84. meaning Johnson's motor vehicles; court that's 75.) driven The term both of language judgment jury. items stolen the court "A is plain court of a c q u i t t a l Johnson includes statute case four were wheeler not is (R. a motor and four yes, s i r . " machines. the wheels (R. 174¬ Johnson denied t o any the relief of mule, the necessary to requests. motions submitted the t h e f t i s not e n t i t l e d a Because i t i s not a 174.) ruling, a f o u r - w h e e l e r and as correctly and to commonly u n d e r s t o o d meaning unambiguous, construe the trial and self-propelled and response of the court's i s a motor v e h i c l e , ordinary, are "A and in in this or the c l e a r I t ' s a motor v e h i c l e . " four wheeler with "motor v e h i c l e " which applied trial, stated: clarification around plain, judicially The at that sought then said: court statute I t ' s motorized. When J o h n s o n trial the argument vehicle. the of The self-propelled vehicles for charges to the claim of on t h i s a error. II. Johnson next r e v e r s e d because argues that his convictions t h e S t a t e p r e s e n t e d no e v i d e n c e 11 should be establishing CR-10-0476 that he entered that he t o o k any and burglary arguments and section of to prove be we a prima $ 2 , 5 0 0 , we we Johnson took court not defendant specific E.g., App. 2007). not preserved principles for construe sufficiency set out that theft of or theft Johnson's the i n the that no this claim and a for State's previous a he J o h n s o n v. that not judgment for a 994 portion review. 12 failed mule and a value State did i n excess To the that presented i n the of acquittal. of 2d and Johnson trial When a acquittal and grounds not a l l other So. of extent testified of the s e c t i o n above, judgment waives State, State because the Johnson. witnesses motion grounds, to was the because the argument i n the adversely Therefore, for Johnson argues that motor v e h i c l e s motions makes specified. We the case of issue argues the aside. to property, his convictions s t o l e n i t e m s e a c h had property, in raises facie the the now any extent considered resolved the that t o t a k e any opinion. to the prove that and set apply f o u r - w h e e l e r are not be intended challenges this First, property, must to evidence, a dwelling, 950 Johnson's (Ala. Crim. claim was CR-10-0476 Second, although the argues preserve for review evidence as t o t h e b u r g l a r y c h a r g e the burglary acquittal, issue was degree building in his record reveals and we reject person i f he commits knowingly the the not of the d i d not for a (R. mention judgment 129-30.) a r g u m e n t as crime The or to the b u r g l a r y c o u r t d i d not of e r r when i t acquittal. of burglary remains a crime in the unlawfully therein." § third in a 13A-7-7, 1975. "The crime of burglary may be proved by c i r c u m s t a n t i a l e v i d e n c e where such circumstantial evidence presents a jury question. Wallace v. S t a t e , 52 A l a . A p p . 3 3 1 , 292 So. 2d 140 ( A l a . C r i m . App. 1 9 7 4 ) . The c o r p u s d e l i c t i i s a f a c t , p r o o f o f w h i c h may be s h o w n b y c i r c u m s t a n t i a l e v i d e n c e , a n d , if there i s a reasonable i n f e r e n c e to prove i t s e x i s t e n c e , the Court should submit to the j u r y f o r c o n s i d e r a t i o n the q u e s t i o n of the s u f f i c i e n c y and weight of the evidence t e n d i n g to support that inference. G o d f r e y v . S t a t e , 333 So. 2 d 182 ( A l a . C r i m . A p p . 1 9 7 6 ) ; B u r l i s o n v . S t a t e , 369 So. 2d 844 ( A l a . C r i m . App. 1979)." 13 of review. trial t o commit did sufficiency otherwise. enters Johnson b e c a u s e he f o r a judgment with intent Code the that motions Johnson's hold that the motions "A c h a l l e n g e to preserved for appellate conviction Alabama charge the Finally, denied any State CR-10-0476 McConnell v. State, 429 So. 2d 662, 665 ( A l a .Crim. App. 1983). "'Upon p r o o f o f a b u r g l a r y , t h e p o s s e s s i o n s o o n t h e r e a f t e r o f goods r e c e n t l y t a k e n i n a b u r g l a r y affords a logical i n f e r e n c e i n t h e absence of a s a t i s f a c t o r y e x p l a n a t i o n t h a t t h e p o s s e s s o r was t h e burglar.' T r a m m e l l v . S t a t e , 377 S o . 2 d 12 ( 1 9 7 9 ) . I t i s a l s o w e l l f o u n d e d i n t h i s s t a t e t h a t , when a b r e a k i n g a n d e n t e r i n g i s shown b y t h e e v i d e n c e a n d it appears that, at the time of the breaking, c e r t a i n p r o p e r t y was s t o l e n , w h i c h i s l a t e r f o u n d i n the possession of the defendant, this, i f unexplained to the s a t i s f a c t i o n of the jury, would be s u f f i c i e n t t o s u p p o r t a j u d g m e n t o f g u i l t . Pugh v . S t a t e , 376 S o . 2 d 1 1 3 5 ( A l a . C r i m . A p p . ) , writ d e n i e d , E x p a r t e P u g h , 376 S o . 2 d 1 1 4 5 ( A l a . 1 9 7 9 ) ; M c C o n n e l l v . S t a t e , 429 S o . 2 d 662 ( A l a . C r i m . A p p . 1 9 8 3 ) ; Moon v . S t a t e , [ 4 6 0 S o . 2 d 287 ( A l a . C r i m . App. 1 9 8 4 ) ] . "In this cause, the defense attempted to establish an a l i b i by p l a c i n g the appellant i n Florida. This presents a question f o r the jury w h i c h was r e s o l v e d a g a i n s t M a r l o w . I t i s true that no o n e saw M a r l o w o n t h e p r e m i s e s o n t h e d a t e o f t h e burglary. No f i n g e r p r i n t s w e r e f o u n d . " H o w e v e r , s u f f i c i e n t e v i d e n c e was p l a c e d b e f o r e the j u r y to s u s t a i n Marlow's c o n v i c t i o n . Thus, t h e t r i a l court's d e n i a l of the appellant's motion f o r j u d g m e n t o f a c q u i t t a l a n d f o r a m o t i o n f o r new t r i a l was n o t i n e r r o r . " Marlow v. State, 538 So. 2d 8 04 , 81 0-11 ( A l a .Crim. App. 1988). The McCormick State i n this case presented discovered h i s four-wheeler 14 evidence was showing missing that from h i s CR-10-0476 garage when and t h a t McCormick allowing a window t o t h e g a r a g e was last the person four-wheeler in the or persons to gain entry that garage had been had responsible into been opened, for taking the garage. On Abernathy Paul questioned Terry saw J o h n s o n Terry about later searched found behind f o r Johnson a Marlow, the State presented conviction alibi implied theory trial for Christmas that he was w i t h Terry burglary. tree. As properly allowed a question the case though the evidence evidence, 15 riding away officers Johnson i t did in to sustain the Johnson that presented an d a y -- a n d he The defense f o r the jury, and t h e to proceed to the jury evidence. was w e a k , we h o l d t h a t t h e S t a t e when v i e w e d after sped and M i t c h e l l , had s t o l e n the four-wheeler. i t s r e s o l u t i o n of the c o n f l i c t i n g sufficient and Johnson his girlfriend of the case presented court had been s u f f i c i e n t evidence f o r third-degree -- t h a t a n d he Terry same stolen, and F u r t h e r m o r e , when l a w - e n f o r c e m e n t a residence hiding a four-wheeler, t h e mule g o t on t h e f o u r - w h e e l e r from the l o c a t i o n . was riding the the morning McCormick d i s c o v e r e d t h a t h i s v e h i c l e had been Paul closed i n the l i g h t most Thus, even presented favorable CR-10-0476 to the State, Johnson guilty The for trial a judgment relief For circuit on this f r o m w h i c h t h e j u r y might have beyond court of a l l the court a reasonable doubt. d i d not acquittal, claim of e r r when and i t denied the Johnson i s not entitled reasons, t o be and judgment affirmed. Burke, the AFFIRMED. Windom, K e l l u m , motions to error. foregoing i s due reasonably found 16 J o i n e r , J J . , concur. of the

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