author: SAM W. TAYLOR, Judge.

text:
    Gayle Weaver PHELPS v. STATE.
    3 Div. 497.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-988.

      Calvin M. Whitesell, Roger S. Morrow, and Wesley Romine, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   SAM W. TAYLOR, Judge.

Following the death of her twenty-month-old son, appellant was indicted and convicted for child abuse stemming from her failure to prevent harm to the boy by his stepfather, appellant’s husband. The stepfather’s conviction for murder was affirmed by this Court in Phelps v. State, 435 So.2d 158 (Ala.Cr.App.1983). Appellant was sentenced to five years’ imprisonment.

The State’s evidence established that on August 24, 1981, David Phelps caused the death of James Allen (Jamie) Weaver, Jr. by striking him in the abdomen. Dr. Thomas P. Gilchrist, forensic pathologist who performed an autopsy on the child, testified that the boy died as a result of a lacerated stomach, pancreas and mesentery which allowed the escape of air and blood into the abdominal cavity. Gilchrist gave his opinion that the injuries had been caused by a blow of “tremendous force” to the abdomen. The pathologist also noted the presence of numerous bruises on the child’s body, specifically on the chest, abdomen, head, face, back, buttocks and groin areas. He stated that, in his judgment, the bruises were two to five days old, while the fatal blow had been administered only hours pri- or to the child’s death.

Mrs. Joy Bozeman testified that she provided daycare for appellant’s children, Jamie and Kristie, in her Autauga County home from February to May of 1980, and from September 1980 to February 1981. In February of 1981, Mrs. Bozeman observed a severe burn on Jamie’s- ear, and she questioned appellant about how the injury occurred. At first appellant told her that Kristie had burned Jamie’s ear, but later she said that her husband David had accidentally burned the child’s ear with a hair dryer.

During the same period of time, Mrs. Bozeman also noticed a burn on Jamie’s back, which appellant explained by saying the boy had backed into her cigarette lighter, and a bump on the child’s head which appellant said had happened when Jamie fell down the steps. Mrs. Bozeman noted that, unlike other mothers who brought their children for daycare, appellant never pointed out Jamie’s injuries before being asked about them. When Mrs. Bozeman mentioned that Jamie was having “too many injuries” appellant replied that he was “just accident prone.”

Mari Lynn Fredrickson Doyle lived near appellant and David Phelps in Autauga County from January to the summer of 1980, and often babysat for appellant’s two children. She stated that appellant and David Phelps were married in April of 1981, although Phelps had been living with appellant since January of that year. The witness testified that she often noticed unusual bruises and burns on Jamie, and she specifically recalled the child’s burned ear. When Ms. Doyle asked appellant about the boy’s ear, appellant first stated that her husband David had inadvertently burned it with a blow dryer, but she later admitted to Ms. Doyle that David “held Jamie down on the bed and waited for the skin to bubble.”

On another occasion, appellant called Ms. Doyle at work and requested that she come to appellant’s trailer to babysit. When the witness arrived, she saw David Phelps’ things packed and she thought he was leaving. Phelps told Ms. Doyle, in appellant’s presence, that he had hit Jamie without realizing how hard he was striking him. Ms. Doyle saw Jamie and observed that his back was badly bruised all over. Appellant told Ms. Doyle to keep a shirt on Jamie and not to let anyone see the bruises.

Ms. Doyle also recounted that she witnessed David Phelps hold Jamie down or pry open the boy’s mouth, with appellant present, and blow marijuana smoke in the child’s face. The witness said that “whenever a marijuana cigarette would be lit [Jamie] would start crying and run into another room.” Once Ms. Doyle saw David strike Jamie so hard the child “went across the kitchen.” When the babysitter mentioned the incident to appellant, appellant said not to worry about it. Ms. Doyle also told appellant that David said he did not like Jamie because the boy looked too much like his natural father, appellant’s first husband.

Ms. Doyle testified that after witnessing numerous incidents of abuse, she informed appellant “that she needed to get away from David, that he wasn’t right for her or the kids and that he was going to end up really hurting one of them.” According to the witness, appellant replied that she loved and wanted David and “things would be okay later.”

Lisa Hyde, the sister of David Phelps, testified that she kept Jamie at her mother’s Montgomery home the Friday night before his death on Monday. At that time she noticed several small round bruises on Jamie’s stomach and back. She questioned her brother about the bruises and he said he did not know how they had occurred. Approximately three weeks earlier, Ms. Hyde saw a large, red handprint on Jamie’s back and called it to appellant’s attention. Appellant stated that she had not seen it, that she knew nothing about it. Several days later, according to Ms. Hyde, the handprint was still there but it was turning blue.

Sue Ann Weaver, Jamie’s grandmother, testified that appellant was formerly married to her son. She last saw Jamie about three weeks before he died. At that time she observed a large bruise covering the side of his head and ear.

At the conclusion of the State’s case, the defense attorney moved to exclude the evidence on the grounds that the State had not presented a prima facie case and, specifically, had not proved venue in Montgomery County. The motion was overruled and the defense presented numerous friends and coworkers of appellant who testified, in substance, that they had never observed unusual bruises, marks or burns on Jamie, that appellant was a good mother, and that her general reputation was good.

The appellant testified in her own behalf that she married David Phelps on April 6, 1981, but that he was at her trailer “all the time” in the four months preceeding that date. She said that she was either not present or had no knowledge of the infliction of the various injuries on her son Jamie as related by witnesses for the State. On the two occasions when she was aware of abuse to the boy — once when Phelps hit him on the back and once when he blew marijuana smoke in the child’s face — she testified that she and Phelps had a big argument about his treatment of Jamie.

Appellant denied that Mari Doyle had informed her of David’s ill treatment of Jamie. She testified that David gave her an explanation of all Jamie’s injuries but she acknowledged that her husband’s explanations were contradictory at times. For example, he first told her Kristie had burned Jamie’s ear with the hair dryer, but then he said he himself had done it accidentally.

Appellant stated that she and Phelps moved to Montgomery on July 10, 1981. About a week before Jamie died, her daughter Kristie complained that her leg hurt, saying that she fell in the sandbox at school. Appellant took Kristie to the hospital, the child was admitted, and appellant stayed with her daughter virtually the entire time she was hospitalized. During this period, appellant left Jamie with David Phelps. Appellant stated that because she spent all her time, during the last week of Jamie’s life, in the hospital with Kristie she did not bathe or clothe Jamie and had no occasion to notice any bruises or injuries on him. When she did periodically come home from the hospital, Jamie was sleeping and she had very little contact with him.

Appellant acknowledged that Phelps had physically abused her and, immediately before they moved to Montgomery, Phelps had gotten into a violent argument with appellant’s father, who lived next door to them in Autauga County. The altercation resulted in both Phelps and appellant’s father having to be sewed up at the emergency room for wounds received in the fight. Appellant conceded that David Phelps had a violent temper and stated that prior to Kristie’s hospitalization she had planned to take the children and leave but she “never got the opportunity.”

On Monday August 24,1981, David called her at work to tell her Jamie needed to see a doctor. She went home, called the paramedics, and gave the child mouth-to-mouth resuscitation. Appellant noticed Jamie’s bruises for the first time when the paramedics cut away the boy’s pajamas.

After the defense rested, the State called paramedic Buddy Pitts, in rebuttal. Pitts said that when he and the other fire medics arrived on the scene Jamie Weaver was wearing only a diaper and had no clothing covering his legs or chest.

I

Appellant contends that the trial court erred by overruling her demurrer to the indictment because the charge against her failed to state an offense. The statute under which she was prosecuted, § 26-15-3, Code of Alabama 1975, provides that

“A responsible person, as defined in section 26-15-2, who shall torture, willfully abuse, cruelly beat or otherwise willfully maltreat any child under the age of 18 years shall, on conviction, be punished by imprisonment in the penitentiary for not less than one year nor more than 10 years.” (Emphasis added)

Omitting the formal parts, the grand jury of Montgomery County charged that

“GAYLE WEAVER PHELPS, alias
GAYLE WEAVER, alias
GAYLE DANIELS,
“whose name is to the Grand Jury otherwise unknown, being the natural parent, legal guardian, custodian or a person with the permanent or temporary care or responsibility for the supervision of James Allen Weaver, Jr., a child under eighteen years of age, did torture, wilfully abuse, cruelly beat or otherwise maltreat said child, by to-wit: GAYLE WEAVER PHELPS, alias GAYLE WEAVER, alias GAYLE DANIELS, did voluntarily fail to remove the child James Allen Weaver, Jr., from the custody, care or control of David Wilson Phelps who had repeatedly subjected the child James Allen Weaver, Jr., to acts of beating or burning or kicking, said omission thereby worsening or aggravating the injuries or conditions which lead to the death of James Allen Weaver, Jr., in violation of Section 26-15-3 of the Code of Alabama, ...” (Emphasis added).

Citing Dates v. State, 335 So.2d 222 (Ala.Cr.App.), cert. denied, 335 So.2d 225 (Ala.1976), appellant maintains that the omission of the word “willfully” before the term “maltreat” in the accusation rendered the indictment fatally defective. Generally, of course, if a criminal statute makes a certain act an offense if it is done willfully, then willfulness is an essential element of the crime, and “in describing the offense it is necessary that the word ‘wilfully’ should be used, or words equivalent in their meaning.” Joyce on Indictments § 403 at 456 (A. Blakemore 2d ed. 1924) (emphasis added).

Unlike the indictment in Dates, however, which, by omitting the term “willfully” simply did not charge an offense or put the accused on notice that he was alleged to have committed any crime at all, the factual averments of the indictment in the present case spelled out precisely what offense was charged and put appellant on notice that her crime was one of “fail[ure] to remove the child James Allen Weaver, Jr., from the custody, care or control of David Wilson Phelps who had repeatedly subjected the child James Allen Weaver, Jr., to acts of beating or burning or kicking, said omission thereby worsening or aggravating the injuries or conditions which lead to the death of James Allen Weaver, Jr.,

In People v. Peckens, 153 N.Y. 576, 47 N.E. 883 (1897), the New York court held that under a statute requiring the indictment to contain “[a] plain and concise statement of the act constituting the crime, without unnecessary repetition,” the defendant was not harmed when the indictment omitted the term “willfully” but alleged facts necessary to constitute the offense. The court observed the following:

“That the indictment in this case charged all the facts, instead of alleging a conclusion, constituted no sufficient objection to its validity. The defendant, being fully apprised of the particular acts for which he was to be held responsible, had no just reason to complain.”

47 N.E. at 885-86 (Construing N.Y. Code Crim.Proc. § 275 (1881)). Section 15-8-25, Code of Alabama 1975, is similar to § 275 of the New York Code of Criminal Procedure in that it also requires the indictment to “state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.” See also Gayden v. State, 38 Ala.App. 39, 80 So.2d 495 (1954), aff’d, 262 Ala. 468, 80 So.2d 501 (1955).

More importantly, the factual averment here charged that appellant voluntarily engaged in the described conduct. In our judgment, the word “voluntarily” in this context is equivalent in meaning to the word “willfully” as found in the statute. The two terms have even been used interchangeably. “Willful” has been defined as “[proceeding from a conscious motion of the will; voluntary.’’ Black’s Law Dictionary 1773 (rev. 4th ed. 1968) (emphasis added). Likewise, the word “voluntary” has been determined to mean “[pjroceeding from the free and unrestrained will of the person.” Black’s Law Dictionary at 1746-47 (emphasis added). We therefore find that the word “voluntarily” as used in the indictment is substantially equivalent to the statutory term “willfully.” “An accusation sufficiently charges a statutory offense if it follows the language of the statute substantially or uses equivalent words, if the accused is thereby fully informed of the particular statute on which the charge is based.” Wharton’s Criminal Procedure § 289 at 118, 120 (C. Torcia 12th ed. 1975).

In Rumely v. United States, 293 F. 532 (2d Cir.), cert. denied, 263 U.S. 713, 44 S.Ct. 38, 68 L.Ed. 520 (1923), the Court of Appeals noted the following:

“The general rule is that the term ‘wilfully’ cannot be omitted from an indictment when the term is part of a statutory definition. But it has been held that, where the facts alleged necessarily import wilfulness, the failure to use the word ‘wilfully’ is not fatal to the indictment.”

293 F. at 547 (citations omitted). Similarly, against a challenge to an indictment omitting “willfully” from a charge that the accused knowingly and willfully caused false writings to be made, another federal court observed:

“Formal words are unnecessary where the allegations necessarily or fairly import guilty knowledge; words which import an exercise of the will may take the place of the word ‘willfully.”’

United States v. Okin, 154 F.Supp. 553, 555 (D.N.J.1955) (emphasis added and citations omitted).

It is our opinion that the language of the indictment here “necessarily import[ed] guilty knowledge” and that the term “voluntarily” substituted for the word “willfully.” Any other construction would be contrary to good common sense. Moreover, in view of the detailed factual aver-ments, there can be no serious claim that appellant was tried for an offense different from that intended by the grand jury, that she was unable to prepare her defense, or that the court was unable to pronounce judgment on the record. See Gayden v. State, supra. As the Kentucky court concluded in Toler v. Commonwealth, 94 Ky. 529, 23 S.W. 347 (Ct.App.1893):

“The word ‘wilfully’ is omitted in the accusatory part of the indictment but, as to the mode of committing the offense, it is charged that the defendant wilfully . .. shot and wounded [the victim] with the intent to take his life; and to say that the offense is not stated with such certainty as to apprise the defendant of what he stands charged would be extremely technical and nullify a conviction warranted by both the indictment and the proof.” 23 S.W. at 347.

II

Appellant also claims that the indictment was defective for failing to specify that she was charged with complicity, as defined in § 13A-2-23, Code of Alabama 1975. That section provides, in pertinent part, that

“A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
“(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make.”

Appellant insists that because she was tried for an omission to act, which she claims is not prohibited by the child abuse statute, she should have been put on notice by the indictment that her crime was one of complicity. We note, first, that the child abuse statute does encompass acts of omission as well as those of commission. See Gullatt v. State, 409 So.2d 466 (Ala.Cr.App.1981) (failure to provide proper nutrition).

Second, although in our judgment the indictment did put appellant on notice that she was charged with a failure to remove the child from the abusive environment created by her husband, David Phelps, there is no requirement that an accused be charged with complicity in the indictment. Johnson v. State, 405 So.2d 149, 153 (Ala.Cr.App.1981).

If the State relies on the theory of complicity, its proof must, of course, establish the elements of complicity, but it need not specify those elements in the indictment. Johnson v. State, supra.

Ill

Maintaining that the State’s proof of venue and criminal intent were insufficient, appellant argues that her motion to exclude the evidence should have been granted.

Appellant correctly points out that for a prosecution based upon breach of her duty to prevent child abuse, venue was in the county where the duty was breached. Caylor v. State, 219 Ala. 12, 121 So. 12 (1929). She claims there was no evidence that she breached a duty in Montgomery County where she was tried, and that the breach occurred in Autauga County, if at all. Appellant states that there was “[no] evidence that she voluntarily failed to remove the child from the custody, care or control of her husband, David Phelps, during any period in which the couple resided in Montgomery County.”

The foregoing contention is refuted by appellant’s own trial testimony wherein she acknowledged that she had planned to take the children and leave Phelps but “never got the opportunity.” In our judgment, the jury was authorized to conclude that appellant never made the opportunity. The jury had before it the fact that appellant left Autauga County, where her parents were located next door, and where, presumedly, they would have provided refuge for her and her children, and knowing well Phelps’s violent propensities, she voluntarily moved to Montgomery with him.

Furthermore, there was proof (albeit contradicted by appellant’s testimony) that Lisa Hyde saw evidence of abuse to Jamie in Montgomery County and reported it to appellant, thereby putting appellant on notice of her duty to protect the child in Montgomery County.

Moreover, section 15-2-6, Code of Alabama 1975, provides that “[w]here an offense is committed partly in one county and partly in another or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, venue is in either county.”

Even if all David Phelps’s abuse of Jamie had taken place in Autauga County, appellant’s duty to prevent that abuse was a continuing one and was not extinguished once the family moved to Montgomery. Thus, her failure to remove the child from Phelps’s influence in Montgomery County, after being put on notice of his ill treatment in Autauga County, falls within the venue exception of section 15-2-6, supra. See Connell v. State, 39 Ala.App. 531, 105 So.2d 695 (1958).

Contrary to appellant’s assertion, the testimony regarding acts of- violence committed on Jamie in Autauga County was properly admitted. It was admissible as part of a continuous pattern of ill-treatment which should have put appellant on notice of the need to prevent further abuse of her son. Under the circumstances, her duty to prevent harm to Jamie could not have arisen until she was alerted to her husband’s behavior. The conduct of David Phelps toward Jamie, therefore, was relevant and admissible, regardless of where it occurred, because it had a bearing on appellant’s knowledge of the abuse. Cf. Reddett v. Mosley, 45 Ala.App. 38, 222 So.2d 369 (1969) (evidence to prove owner had knowledge of animal’s vicious propensities); Atkins v. State, 60 Ala. 45 (1877) (evidence to prove seller of alcoholic beverages knew intemperate habits of drinker).

Finally, the question of appellant’s criminal intent was properly left to the jury to resolve. The evidence was in sharp dispute, with all the defense testimony pointing to the fact that appellant was unaware of her husband’s ill treatment of her son. The testimony from State’s witnesses Joy Bozeman and Mari Doyle, however, provided evidence which, if believed, would have authorized the jury to find that appellant knew of the abuse to her son and, having a duty to prevent it, did nothing to halt it. When there is legal evidence from which the factfinders can by fair inference find the accused guilty, this court will not disturb the verdict. Hughes v. State, 412 So.2d 296 (Ala.Cr.App.1982); Williams v. State, 335 So.2d 249 (Ala.Cr.App.1976).

IV

Appellant insists that the trial court’s oral instruction regarding the complicity statute, § 13A-2-23, Code of Alabama 1975, was erroneous. This issue, however, has not been preserved for review, since defendant announced “satisfied” at the conclusion of the oral charge, see Tuck v. State, 384 So.2d 1240 (Ala.Cr.App.1980), and took no exception to the court’s refusal of certain requested written charges, see Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), affirmed, 414 So.2d. 993 (Ala.1982).

V

Appellant maintains that her trial counsel was ineffective, due to his “failure to note a continuing objection to the venue of the trial” and due to his failure to object or except to certain portions of the court’s oral charge.

As we have indicated in part III of this opinion, venue was proper in Montgomery County. In addition, although counsel did not object to the court’s oral charge regarding complicity, we do not deem this omission to constitute inadequate representation.

An accused is not entitled to error-free counsel. Graham v. State, 403 So.2d 275 (Ala.Cr.App.1980), cert. quashed, 403 So.2d 286 (Ala.1981). In order to have a conviction reversed because of ineffective counsel, defendant must show that the lawyer’s representation was merely perfunctory, and that the conduct of the attorney reduced the trial to a farce, sham or mockery of justice or shocked the conscience of the reviewing court. Bridges v. State, 391 So.2d 1086 (Ala.Cr.App.1980).

“[E]ven though it can be definitely shown that an attorney has made a mistake in the trial of a case that results in a judgment unfavorable to his client, this alone is not sufficient to demonstrate that his client has been deprived of his constitutional right to adequate and effective representation by counsel....

Lee v. State, 349 So.2d 134, 136 (Ala.Cr.App.1977).

A review of the entire record clearly indicates that appellant’s trial was not reduced to a sham or mockery of justice. Trial counsel conducted a vigorous defense by cross-examining the State’s witnesses and by calling some twenty-eight witnesses for the defense. Appellant herself expressed satisfaction with her trial attorney even after she had been convicted and had retained different counsel on appeal, as shown by the following “Notice of Withdrawal and Release of Counsel.”

“COMES NOW, The Defendant Gayle Phelps and releases the Honorable Robert M. Beno from any future responsibility in reference to the above styled cause. This release is not by way of dissatisfaction, but due to certain financial obligations and sureties I have retained separate counsel. The representation by Mr. Beno has been adequate and I am satisfied with the same.
“This release is with the understanding that the motion for a new trial must be filed no more than thirty days from judgment of November 21, 1981. Having stated my satisfaction with Mr. Beno as providing adequate representation; I hereby release him from all future responsibility in reference to this case in whatever form it may take.”

We do not find that appellant’s right to counsel has been abridged.

VI

Appellant argues that her motion for new trial should have been granted because prejudicial photographs of her dead son were introduced at trial, because she had newly discovered evidence, and because the weight of the evidence did not support a finding of her criminal intent.

Appellant concedes the fact that the photos of the victim were not inadmissible by virtue of their gruesomeness, but claims instead that the pictures of the dead child were irrelevant because she was not charged with either murder or the actual beating of her son.

Evidence is relevant if it has any probative value, however slight, upon a matter at issue in the case. C. Gamble, McElroy’s Alabama Evidence § 21.01 (3d ed. 1977). The matter at issue here was whether the appellant failed to remove the child from the destructive influence of her husband after having knowledge of his abuse of the child. The photographs showing the nature and location of bruises and other injuries on the child’s body, tended to shed light on the issue of appellant’s knowledge that her son was being abused, and therefore were relevant.

Appellant also maintains that she was entitled to a new trial because of newly discovered evidence which she presented in the form of an affidavit from Montgomery paramedic Paul Harper. Harper’s statement included the fact that when he arrived on the scene the day of Jamie Weaver’s death, he (Harper) cut pajamas away from the child’s body. At trial, another paramedic, Buddy Pitts, had testified that the boy was not wearing pajamas and had no clothing covering his legs or chest that day.

Appellant argues that Pitts’ testimony undermined her defense of being unaware of the severity of the child’s injuries due to the fact that he was dressed in pajamas. She contends that Harper’s affidavit contradicting Pitts entitled her to a new trial on the grounds of perjured testimony or “surprise.”

In our judgment, the trial court was well within his discretion in ruling that Harper’s affidavit did not entitle appellant to a new trial. To gain a new trial on the ground of newly discovered evidence, the defendant must allege and prove the following:

“(1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching.”

Bland v. State, 390 So.2d 1098, 1101-02 (Ala.Cr.App.), cert. denied, 390 So.2d 1109 (Ala.1980). Appellant’s proffered evidence fails to meet all but the fourth criterion listed above.

Since there was other evidence pointing to appellant’s unawareness of her child’s injuries, we cannot say that Harper’s testimony would “probably change the result” on a retrial. In addition, appellant knew, or by the exercise of due diligence could have determined, that Harper was at the scene on the day in question. See Gilley v. State, 367 So.2d 597, 599 (Ala.Cr.App.1978), cert. denied, 367 So.2d 600 (Ala.1979). Notwithstanding appellant’s claim that the prosecution had released Harper from his subpoena and he was therefore unavailable to testify for the defense, appellant could have requested an instanter subpoena and had the benefit of Harper’s testimony. Finally, and more importantly, the evidence did not entitle appellant to a new trial because it was “merely cumulative [and] impeaching,” Bland v. State, supra. It was cumulative to appellant’s testimony and impeaching of Pitts’s testimony at trial.

Furthermore, in the absence of an allegation and proof that Pitts’s testimony was used by the prosecution with knowledge that it was perjured, that it was on a matter of such importance that the truth would have prevented the conviction, and that appellant was not dilatory in discovering the falsehood and raising the issue, Pitts’s trial testimony, even if untrue, does not entitle appellant to another trial. See Summers v. State, 366 So.2d 336, 343 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979).

When conflicting evidence on the issue of criminal intent presents a jury question, a motion for new trial based on the same grounds is properly overruled. Travis v. State, 32 Ala.App. 637, 29 So.2d 359 (1947).

We have examined the issues presented on appeal and have found no error. The judgment of conviction by the Montgomery Circuit Court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Robert F. BURKETT v. STATE.
    3 Div. 677.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-1018.

      L.H. Walden and Horace N. Lynn and C. Michael Mclnnish, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   SAM W. TAYLOR, Judge.

Child abuse; sentence: six years’ imprisonment.

On July 11, 1982, Cecilia Melton and the victim, her five-year-old daughter Juanita, visited appellant at his residence in Montgomery. During the course of the visit, the victim was severely beaten which caused severe bruises and contusions over a large portion of her body. The child’s condition was reported to the police on July 12, by Teresa Hyatt, a babysitter. She was taken into protective custody and remained therein throughout the course of the instant proceeding.

I

Appellant first challenges the sufficiency of the State’s evidence, specifically contending that he was not a “responsible person ... who has the permanent or temporary care or custody or responsibility for the supervision of a child,” under § 26-15-2 Code of Alabama 1975.

Juanita Melton testified that on July 11, her mother. and she went to appellant’s house where she watched television and then went into another room and fell asleep. Juanita stated that she was awakened by appellant and whipped on her face, hands, abdomen, and legs because she had fallen asleep. She stated that during her visit with appellant, he had given her a beer to drink. Later that evening at her home, Juanita exhibited her injuries to her mother. The victim testified that her mother did not inflict them.

Dr. Maurice White testified that on July 12, he examined the victim in the emergency room of St. Margaret’s Hospital. He described the victim’s injuries in detail as well as the treatment prescribed therefor. White stated that the bruises “appeared to be at least a day old, and they were severe and generalized, and in a severe nature.”

Cecilia Melton testified that she had known appellant since January, 1981. On July 11, she and the victim visited appellant at his residence. Melton stated that she and appellant were watching television while her daughter was in the living room listening to music. Melton and appellant had a couple of drinks and appellant gave the victim a beer to drink. Melton testified that she fell asleep, then awakened only long enough to go into the bedroom. She stated that she heard Juanita crying but she thought that she was dreaming. After-wards, appellant and the victim awakened Melton and appellant told her that he had spanked Juanita “because she had lied to him about changing her panties, because I [Melton] told her not to.” Melton testified that appellant told her that he had spanked the victim with a belt.

Later that evening, after Melton and the victim returned home, the child complained about her injuries and Melton observed the bruises. She did not take the victim to the hospital. The next day, Melton left her daughter with Teresa Hyatt, a babysitter. When she called Hyatt to check on her, Hyatt told her that the police had come and taken her daughter. Melton testified that she called appellant and informed him of such, at which appellant instructed her “not to tell anybody that we were seeing each other.”

Melton testified as follows:

“Q So you and Nita went over there... Let me ask you this. Does Robert have— in the past and around this time, has Robert had responsibility for supervising Nita?
“A He has watched her, yes.
“Q Okay, and he — have you ever left her with him before?
“A Yes, on several occasions.
“Q And he has had temporary care for her?
“A Yes.” (R. 46-47)

Reviewing the evidence presented by the State prior to appellant’s motion in the light most favorable to the State, we find that it raised questions of fact for the jury to determine as to whether the appellant was a “. . . person who has the .. . temporary care ... of a child.” The evidence, if believed by the jury, is sufficient to sustain a conviction and, thus, the denial of appellant’s motion to exclude the State’s evidence does not constitute error.

Appellant admitted to giving Juanita a “simple spank.” A question of fact existed from the appellant’s own testimony on this aspect of the case; the trial court properly denied appellant’s request for the affirmative charge as well as his motion for a new trial on this ground. Gullatt v. State, 409 So.2d 466 (Ala.Cr.App.1981).

II

Appellant contends that the trial court erred in denying his motion to suppress admission of a belt taken from him while at police headquarters.

Montgomery Police Youth Aid Division investigator F.T. Brock testified that pursuant to a complaint lodged by the victim’s babysitter, he investigated this incident. After Officer Rushing brought the victim to the police station, Brock observed the child’s injuries. He interviewed both the victim and her mother and determined that appellant had caused the injuries. Based upon such, he obtained a warrant for appellant’s arrest on the charge of assault in the second degree. He served the warrant on appellant at appellant’s home, advised him of his constitutional rights, and transported him to the police station. There appellant was again advised of his rights, but refused to sign a waiver or make a statement. Brock testified that during his interview of the victim, she had told him that appellant had whipped her with a belt. He stated that the injuries on the victim were of the same general width as the belt on appellant when he was arrested. After appellant had refused to make a statement, Brock asked some general information questions which appellant answered. During the course thereof, Brock informed appellant of the charge against him and that the victim had accused him of beating her with a belt. At that point, Brock removed a western-style belt from appellant and marked it as evidence.

Appellant testified that after he was arrested, he requested to call his father who was an attorney. The request was refused at that time and appellant was told that he could contact him from the police station. Appellant was then transported to the police station. Appellant admitted being given his Miranda rights at both his home and the police station. He refused to sign or say anything and requested an attorney. Appellant stated that he answered Brock’s general information questions and was read the complaint filed against him. During this period of time, appellant was handcuffed to the chair in the office. Appellant stated that Brock informed appellant of the victim’s allegation concerning the belt. He stated that Brock then removed his belt and seized it as evidence. Brock prepared a receipt for the belt which appellant refused to sign. Afterwards, appellant was allowed to call his father. Subsequent thereto, he was processed and placed in jail.

Based upon the above testimony, the trial court denied appellant’s motion to suppress.

At trial, Brock testified in substance to that which he had testified at appellant’s motion to suppress. He produced and identified the belt he had taken from appellant and he stated that the belt had been in his custody since its seizure. Upon its offer into evidence, the trial court initially admitted it. However, appellant objected contending that there had “been no evidence that this belt was the belt that was used to spank this child, or beat her, ...” The trial court reversed its prior ruling and sustained appellant’s objection. Appellant did not move to exclude the above testimony.

After the close of all the evidence and prior to the oral charge of the trial court, appellant moved to exclude the belt from the evidence. The trial court noted that the belt had never been admitted. Appellant then requested to have the jury instructed that the belt was not admitted into evidence. No ruling was made on appellant’s request and appellant did not object to the failure of the trial court to rule.

In its oral charge, the trial court instructed the jury that in addition to the sworn testimony of the witnesses, it could consider as evidence “exhibits ... if they are introduced into evidence.... If they have not been admitted into evidence for one reason or another, then you are not to consider them.”

Although the arrest warrant was not made a part of the record on appeal, there is no doubt, as evidenced by the testimony recited above, that Brock had probable cause to arrest appellant. See generally Nance v. State, 424 So.2d 1358 (Ala.Cr.App.1982). In addition, Brock had gained information from the victim concerning the manner in which she had been abused and had personally observed her injuries. With such knowledge he had cause to suspect that the instrumentality which inflicted the victim’s injuries was the belt being worn by appellant at the time of his arrest. Thus, it is reasonable to conclude that Brock could have seized the belt at the time of appellant’s arrest rather than postpone such until after reaching the police station. Furthermore, while not clear from the record, it appears that there was not an inordinate passage of time between appellant’s arrest and the seizure of his belt. When seized, Brock was in the process of obtaining the necessary information for administrative processing and jailing. As stated in United States v. Edwards, 415 U.S. 800, 807-8, 94 S.Ct. 1234, 1239, 39 L.Ed.2d 771 (1974):

“[Ojnce the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the ‘property room’ of the jail, and at a later time searched and taken for use at the subsequent criminal trial. The result is the same where the property is not physically taken from the defendant until sometime after his incarceration.” (Footnotes omitted).

See generally Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). Consequently, the seizure of appellant’s belt was proper.

Furthermore, the trial court never admitted the belt into evidence and it was never given to the jury to examine.

Although there was some testimony in the record concerning the belt, appellant never moved to exclude such from the jury’s consideration or have it instructed to disregard the testimony. Thus, in this regard, appellant can not now be heard to complain as he did nothing to invoke a ruling and thereby preserve error for review. See Harris v. State, 420 So.2d 812 (Ala.Cr.App.1982); Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981).

Moreover, the trial court in its oral charge to the jury instructed it as to what was and was not evidence in the case, especially in regard to the exhibits admitted. The instruction was clear and directed specifically to that which appellant now asserts as error.

After a careful reading of the trial court’s oral charge as well as consideration of the above facts and circumstances, we find no error in the trial court’s actions.

Ill

Appellant contends that the trial court abused its discretion in finding the victim competent to testify. He argues that it was error for the trial court to lead the witness in questioning her to determine her competency. He also contends that the victim was not sworn in before testifying.

We quote from the record:

“THE COURT: Anita, you know that you are in a courtroom here, don’t you?
“THE WITNESS: Yes.
“THE COURT: I am the judge, and these men right here are the lawyers in the case, and these people right over here, they are the Jury. All we want you to do is to tell us what you know, and we want you to tell us the truth. You know what the truth is, don’t you?
“THE WITNESS: Yes.'
“THE COURT: You know the difference between telling the truth and telling something that is not the truth, don’t you?
“THE WITNESS: Yes.
“THE COURT: We don’t want you to tell a story. All we want you to do is to. tell the truth.
“THE WITNESS: Yes.
“THE COURT: Do you know what happens to people when they don’t tell the truth?
“THE WITNESS: Yes.
“THE COURT: What?
“THE WITNESS: They get punished or something.
“THE COURT: They get in trouble, right?
“THE WITNESS: Yes.
“THE COURT: All right. Now, you understand whatever question is asked to you, if you don’t understand the question, you just say I don’t understand.
“THE WITNESS: Okay.
“THE COURT: When you answer and you understand, then you tell them the truth, okay?
“THE WITNESS: Okay.
“MR. WALDEN: Judge, I would like the Jury excused, and I would like to ask this young lady some questions on competency-
“THE COURT: All right. Okay, ladies and gentlemen, if you will please step back into the Jury room for a moment.” (R. 13-15)

Defense counsel then questioned the victim as follows:

“Q What is you name, darling?
“A Anita.
“Q Anita, how old are you?
“A Six.
“Q You are six?
“A Yeah.
“Q Back in September how old were you at that time?
“A Five.
“Q And when is your birthday?
“A September 3.
“Q September 3?
“A Yeah.
“Q Do you realize that you have sworn to tell the truth? Do you know what that means?
“A No.
“Q You don’t?
“(No response from the Witness.)
“Q Do you know what the Judge means when he has you to raise up your right hand and you swear that you will tell the truth, the whole truth, and nothing but the truth?
“A (Nods head in the affirmative.)
“Q Do you know that?
“A Yeah.
“Q Okay. Do you realize what could happen to you if you was to not tell the truth?
“A Yes.
“Q What?
“A Get punished or something.
“Q How would you be punished?
“Q How would you be punished if you did not tell the truth?
“(No response from the Witness.)
“Q Do you know? I don’t want to scare you, darling. I am trying to be as nice as I can. I love little children, so I am not trying to scare you. Don’t you be afraid of me. Do you know what kind of punishment you would have if you didn’t tell the truth?
“A Couldn’t watch T.V. or couldn’t go in somebody’s room.
“Q Okay. Do you know the difference between telling the truth and telling a lie?
“A No.
“Q You don’t? Your Honor, I just think that this witness is not competent to testify.” (R. 15-17)

The trial court further inquired of the victim:

“THE COURT: Anita, do you know what a lie is?
“THE WITNESS: Yes.
“THE COURT: What is a lie?
“THE WITNESS: You doing something wrong.
“THE COURT: You are telling something that is not true?
“THE WITNESS: Yes.
“THE COURT: What is the truth?
“THE WITNESS: Doing something good.
“THE COURT: Telling it the way it is?
“THE WITNESS: Yes.
“THE COURT: Okay, you can show the Jury out. The Court is of the opinion that the witness is competent to testify. “One other thing. I want you to promise me and everybody here that you are going to tell us the absolute truth and you are not going to tell us something that is not true. Do you understand?
“THE WITNESS: Yes.
“THE COURT: You are going to tell us the way things happened, and if it didn’t then you will tell us what happened, okay?
“THE WITNESS: (Nods head in the affirmative.)” (R. 17-18)

As to the last contention of appellant, the record reflects that the trial court had the victim “promise” to tell “the absolute truth” and not tell “something that is not true.” This clearly served the purpose of swearing an oath to tell the truth in substance if not in form. Prior to the reception of the victim’s testimony, the transcript noted that she had “promised to tell the truth.” We therefore find no merit to this contention. Rodgers v. State, 42 Ala.App. 660, 177 So.2d 460, cert. denied, 278 Ala. 712, 177 So.2d 464 (1965); Ala.Code § 12-21-136 (1975); see generally Jones v. State, 398 So.2d 360 (Ala.Cr.App.), cert. denied, 398 So.2d 369 (Ala.1981).

We also find no abuse of discretion in the trial court asking leading questions of the victim during the preliminary inquiry into her competency. See generally McDaniel v. State, 24 Ala.App. 314, 135 So. 421, cert. denied, 223 Ala. 217, 135 So. 424 (1931).

Finally, we have completely reviewed all the testimony of the victim and find no error in the trial court’s determination as to her competency. Appellant has the burden of establishing the victim’s incompetency. Roberson v. State, 384 So.2d 864 (Ala.Cr.App.), cert. denied, 384 So.2d 868 (Ala.1980). See also Harville v. State, 386 So.2d 776 (Ala.Cr.App.1980). Consequently, we find no error in the trial court allowing the victim to testify or in denying appellant’s motion to strike her testimony. Miller v. State, 391 So.2d 1102 (Ala.Cr.App.1980).

IV

Appellant asserts that he was prejudiced by the fact that the victim was not appointed a guardian ad litem pursuant to § 26-14-11 Code of Alabama 1975.

Section 26-14-11 Code of Alabama 1975 states that, “In every case involving an abused or neglected child which results in a judicial proceeding, an attorney shall be appointed to represent the child in such proceedings. Such attorney will represent the rights, interests, welfare and well-being of the child, and serve as guardian ad litem for said child.” While this section appears to have carte blanche application to all judicial proceedings involving an abused child, we feel that it is directed primarily at protecting the interests of the child in a civil proceeding instituted against the child or in those proceedings attendant to a criminal prosecution for child abuse where the interests of the child conflict with those of the original guardian and/or cannot be adequately represented or protected by the State. Such a conclusion gains support from the nature of the chapter in which the above section appears and the expressed purpose stated therein by the legislature. Ala.Code § 26-14-2 (1975). It is also supported by the definition of guardian ad litem who “is a special guardian appointed by the court to prosecute or defend, in behalf of an infant or incompetent, a suit to which he is a party, and ... to represent the interest of the infant or incompetent in the litigation.” Black’s Law Dictionary 635 (rev. 5th ed. 1979).

The two cases cited by appellant, In the Interest of Joseph Genusa, 381 So.2d 504 (La.1980), and State of Louisiana in the Interest of Kendra Brown, 387 So.2d 1366 (La.Ct.App.1980), are clearly distinguishable from the case at bar. Both of the above cases were civil proceedings having as their dispositive issue the right of the child to counsel and the scope of representation thereof under Article 95 of the Louisiana Code of Juvenile Procedure. Neither case involved a criminal prosecution wherein the child was the victim of abuse. Furthermore, representation for a juvenile is provided for in our rules of juvenile procedure. A.R.J.P. 10, 11(A), (G), 22.

In Murphy v. State, 355 So.2d 1153 (Ala.Cr.App.1978), a child, the victim of carnal knowledge, was appointed counsel to represent her pursuant to § 26-14-11. The appointment was made after the child was taken into protective custody by the local Department of Pensions and Security. The defendant was the child’s father. The facts as reported in the Murphy case give no indication whether counsel for the child was present at or involved in the criminal proceeding against the defendant. We do not find Murphy to be supportive of appellant’s position.

Appellant has not demonstrated in what manner his rights were prejudiced by the failure of the victim to have appointed counsel nor does the record shed light on this issue.

Based upon the foregoing, we do not find reversible error in the fact that the victim had not been appointed counsel pursuant to § 26-14-11.

V

Appellant asserts he was denied the opportunity to confront the victim “face to face” during the examination to determine her competency to testify. Thus, he argues that the trial court erred in denying his motion to exclude the victim’s testimony.

The above contention, as the previous two issues raised by appellant, arose during the examination of the victim to determine her competency to testify. Immediately prior to appellant’s voir dire examination of the victim and after the jury had been excused from the courtroom, the assistant district attorney made the following request:

“MR. WILLIAMS: Will you instruct the Defendant to stay on his side of the counsel table?
“THE DEFENDANT: I cannot see the witness.
“THE COURT: We will have her speak up. Just have a seat back over here.
“THE DEFENDANT: Can I stand?
“THE COURT: That will be fine.” (R. 15)

Upon conclusion of appellant’s voir dire examination and near the end of his argument to the trial court, the trial court made the following statement to appellant:

“THE COURT: Have a seat at the counsel table.
“THE DEFENDANT: I was looking at the witness.
“THE COURT: I understand that. Follow the rules as I have set them up.” (R. 18-19)

Direct examination of the victim began, but was interrupted by the trial court after one question was asked in order that “a five minute recess” could be taken. After-wards, the examination of the victim was resumed and completed. Appellant then moved to exclude her testimony. The jury was excused and the trial court, in denying the motion, made the following statement:

“THE COURT: Okay, on this ruling, the Court would make the following observations: Any question that was asked the little girl that anybody didn’t hear, we asked it be repeated or repeated the answer so that they could. There was no other requests that I know of.
“The first time she came in here to testify, to what Mr. Walden refers to, the Defendant gets out of the chair at counsel table and walked around and stood right in front of the witness, and the Court had to take a 15 minute recess so that the little girl could get her composure back. I just want to make sure that the record reflects exactly what happened, and at that point in time I instructed the Defendant to take a seat at counsel table and not walk over here and stand right in front of the little girl.” (R. 37-38)

At the hearing on appellant’s motion for a new trial, one of appellant’s attorneys, Raymond Johnson, testified that he was seated to appellant’s left during the above examination of the victim. He stated that appellant was around ten to twelve feet away from the victim and slightly nearer the witness stand than he. From his seat, Johnson stated that he could neither see nor hear the victim. After appellant had left his seat, Johnson moved to appellant’s chair and to the middle of the defense table but still could not see. Finally, Johnson stood and could then see and hear the victim. Johnson stated that he did not see appellant make any threatening gestures or motions toward the victim while appellant was away from his seat. The trial court questioned Johnson, as follows:

“THE COURT: I have a few questions. Were you there when the Defendant, without any permission from anybody, got up, walked around the table and started walking toward the witness?
“THE WITNESS: I was there when he stood up.
“THE COURT: And ended up about five or six feet from the witness and the witness broke down and started crying and the Court had to call a recess?
“THE WITNESS: I could not see the witness at that time. I do not know what her deameanor was. I did see him get up and leave the table and get closer so he could see.
“THE COURT: He walked around the table, the side of the witness and walked toward the witness and stood there and looked at her at which time the witness immediately broke down and started crying.
“THE WITNESS: I don’t know whether she started crying or not. I could not see her. I saw him get up.
“THE COURT: You didn’t see the witness crying?
“THE WITNESS: Not until after Court had recessed.
“THE COURT: And when Court recessed the witness was crying, wasn’t she?
“THE WITNESS: Right.
“THE COURT: Is it so as stated by Mr. Lynn in his affidavit that after I told him to go back over there and sit down and he was allowed to stand beside his chair?
“THE WITNESS: I believe ... I’m not sure about that, Judge.” (R. 176-177)

Johnson further testified that appellant got up from his seat and sat in the assistant district attorney’s chair, which was located directly in front of the witness. Upon the request of the assistant district attorney, appellant moved and then walked toward the victim. Johnson stated that he was aware that the victim began crying at some point during this time but was not sure whether such occurred before or after the recess.

Horace Lynn, an attorney, testified that he was a spectator during this portion of appellant’s trial. He was seated on the front row of the courtroom. Lynn stated that from his location he could not understand the victim’s testimony. He stated that the victim was not emotional when she was brought into the courtroom and was not so until some point after appellant had gotten out of his seat. Lynn testified that he heard the victim crying after the trial court had instructed appellant to sit down. Lynn stated that during this incident appellant had moved to the end of the State’s table, which was the table closest to the witness stand.

Appellant testified that contrary to the advice of one of his attorneys, he got out of his chair and moved. He admitted not asking or having permission from the trial court to do such. Appellant stated that he moved to and sat in the assistant district attorney’s chair. At the request of the State’s prosecutor, appellant left the chair and sat in a chair located at the State’s table. After a short period of time, he was again asked to move at which time appellant got up and asked the trial court for permission to stand. The request was granted and appellant moved to the next closest chair at the defense table and stood behind it. From this and the earlier positions, appellant stated that he could see and hear the victim. Appellant denied that he moved to the end of the State’s table. He stated that throughout this incident, his view was obstructed.

Based upon the foregoing, we find no breach of appellant’s Sixth Amendment right to confront the witness. Before the trial court was a young girl who had been physically abused by appellant. The trial court was aware that the witness might become upset. In order to ensure that the witness’ testimony be understandable and of some worth to the State, appellant, and the jury, the trial court properly treated the examination of the victim with delicacy. The record is clear that appellant’s proximity to the witness caused her discomfort thus necessitating a recess. The possibility of appellant intimidating the victim was present, regardless of her subsequent testimony stating that she was not afraid of appellant.

Appellant was never removed from the courtroom and thus denied the opportunity to view the examination of the witness. Rather, he was given much leeway in moving freely about the courtroom. It was only when appellant’s actions began to disrupt the conduct of the trial that his movement was limited. However, the trial court granted appellant’s request to stand in order that he might observe and hear the victim better. No situation arose where testimony was taken from the witness without the presence of appellant and his counsel. Appellant and the witness were physically present in the courtroom at all times. See generally, Allison v. State, 331 So.2d 748 (Ala.Cr.App.), cert. denied, 331 So.2d 751 (Ala.1976).

The trial court exercises discretion in the conduct of a trial, and unless clearly abused, such will not be overturned on appeal. The trial court exercises this discretion in light of the facts and circumstances of each case. Thomas v. State, 393 So.2d 504 (Ala.Cr.App.1981); Snipes v. State, 364 So.2d 424 (Ala.Cr.App.1978). The cases of Wray v. State, 154 Ala. 36, 45 So. 697 (1908), and Strange v. State, 43 Ala.App. 599, 197 So.2d 437 (1966), cert. denied, 280 Ala. 718, 197 So.2d 447 (1967), upon which appellant heavily relies, are not applicable to the facts of the instant cause.

Appellant’s movements might have been a good deal more restricted at the court’s discretion. “Considerations for the safety and security of all persons present in the courtroom, including the defendant, and for the judicial process itself, justified the trial judge in feeling that it was unwise to allow defendant to wander freely about the courtroom.” People v. Chessman, 238 P.2d 1001, 38 Cal.2d 166, cert. denied, Chessman v. People of State of California, 343 U.S. 915, 72 S.Ct. 650, 96 L.Ed. 1330, rehearing denied 343 U.S. 937, 72 S.Ct. 773, 96 L.Ed. 1344.

VI

Appellant asserts that the trial court erred in admitting evidence of his prior conviction and prior criminal acts involving the victim.

A

Appellant initially raised the instant issue through a motion in limine. However, the record illustrates that although the trial court thought the prior conviction would be admissible, it withheld ruling on appellant’s motion “until we get to that in the time of the trial.. . . ” Thus, there was no ruling on appellant’s motion from which he could appeal.

B

The victim’s testimony concerning prior incidents similar to the one now under scrutiny was admissible as being relevant to prove intent and to show motive. Likewise, Cecilia Melton’s testimony concerning the same was also admissible. Carlton v. State, 415 So.2d 1241 (Ala.Cr.App.1982); Graham v. State, 403 So.2d 275 (Ala.Cr.App.1980), cert. denied, 403 So.2d 286 (Ala.1981); Howton v. State, 391 So.2d 147 (Ala.Cr.App.1980).

C

On his cross-examination of Cecilia Melton, the victim’s mother, appellant focused his defense on the theory that Melton caused the injuries giving rise to the instant prosecution. Melton’s testimony regarding appellant’s threats against her and his physical abuse of her was highly competent to illustrate why she did not act to prevent appellant’s abuse of the victim and thus it explained her cross-examination testimony and rebutted appellant’s theory of defense. We find no error in the admission of the testimony.

VII

The trial court sustained many of appellant’s objections during the rebuttal testimony of former Montgomery County Department of Pensions and Security crisis unit investigator Andy Beckham. At the conclusion of his testimony, the trial court granted appellant’s motion to exclude Beck-ham’s testimony and instructed the jury to “disregard the testimony of. this witness.” Thus, no adverse ruling exists from which appellant may now complain. Trawick v. State, 431 So.2d 574 (Ala.Crim.App.1983); Van Antwerp v. State, 358 So.2d 782 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978).

VIII

No error was committed by the trial court in allowing the State to question appellant about a prior conviction. Appellant had pled guilty to assault in the third degree of this same victim following an incident that occurred in February, 1981. The record reveals that the 1981 incident was similar in nature to the one in the instant inquiry. Although the prior conviction was a misdemeanor and may not involve moral turpitude, it was admissible under the intent and motive exceptions to the general rule prohibiting evidence of collateral acts. The above inquiries are pertinent when the prior conviction is not offered solely for the purpose of establishing the accused’s bad character. See authorities cited in Part VI, B, supra. See generally Partridge v. State, 431 So.2d 1377 (Ala.Crim.App.1983).

We disagree with appellant’s contention that the State improperly admitted the details of the prior conviction. The State displayed to appellant but not to the jury, some photographs apparently part of the record of the prior crime to rebut appellant’s testimony that his conduct on that occasion was nothing more than a “simple spank.” It also rebutted appellant’s testimony concerning the sensitive nature of the victim’s skin and his testimony that the injuries were caused in some degree by “bed-wetting.” The State did not divulge or question appellant about the specifics of the prior conviction per se. The photographs were not admitted into evidence. Thus, we find no error in this regard.

IX

The photographs of the victim were properly admitted into evidence. Although six of the twelve photographs contained extraneous matter written on their backs, the trial court had the writing on each covered with sheets of opaque paper taped thereto. It instructed the jury not “to look behind” the paper as “whatever is being covered up is improper for you to see and consider.” The trial court admonished the jury not to “peel that off. It is covered up. Leave it covered up.” We find the action of the trial court sufficient to protect appellant from any prejudice which could have resulted from display of the writings to the jury. Washington v. State, 415 So.2d 1175 (Ala.Cr.App.1982); Elmore v. State, 414 So.2d 175 (Ala.Cr.App.1982); Donner v. State, 409 So.2d 461 (Ala.Cr.App.1981).

X

We have reviewed the three instances noted by appellant in his brief where he alleges that the trial court improperly suggested to the State the proper manner in which to admit evidence and we find no reversible error. In the first instance, the trial court twice sustained objections by appellant to the State’s questions and in one instance the court stated that if the State would ask proper questions it would admit the testimony. In the second instance, the trial court again sustained appellant’s objection and told the State to attempt to lay the proper predicate for the testimony. In the last instance, the trial court inquired of the State which photographs it was about to use in examining a witness.

XI

Appellant’s contentions concerning the trial court allowing the jury to carry the indictment with it while it deliberated and in failing to cover the amount of appellant’s bond ($40,000) which was written on the back thereof have been answered to his detriment in Herring v. State, 401 So.2d 296 (Ala.Cr.App.1981), and Thomas v. State, 399 So.2d 915 (Ala.Cr.App.1981).

The trial court thoroughly instructed the jury that the indictment was not evidence to be considered in reaching a decision. Further, it gave appellant’s written requested charge covering the same point. While appellant did move to have the amount of his bond covered from the jury’s view, his contention that display of such to the jury would prejudice it against him is pure speculation. There is nothing in the record to suggest that the jury did not follow the instructions of the trial court which had carefully charged it as to the composition of the evidence. Appellant’s contention is conjectural and does not mandate reversal of this cause.

XII

Appellant raises three issues concerning the trial court’s oral charge. In one instance, appellant asserts that the trial court failed to instruct the jury on the principle expressed in § 13A-3-24(1) Code of Alabama 1975. Appellant offered no written requested charge to cover the alleged omission. In the latter two instances, appellant argues that the trial court erred on two specific occasions in the manner in which it charged the jury. Appellant made no timely, specific objection to such. Thus, in none of the situations did appellant properly preserve the issue for our review. See Byrd v. State, 421 So.2d 1344 (Ala.Cr.App.1982); Brooks v. State, 418 So.2d 195 (Ala.Cr.App.1982); Yates v. State, 390 So.2d 32 (Ala.Cr.App.1980).

XIII

Lastly, appellant contends that the trial court erred in refusing nine of his thirty-four written requested charges. We have carefully reviewed the record and find that appellant not only failed to call to the attention of the trial court the specific refused written charges but he also failed to set forth any specific grounds for his objection to their refusal. Johnson v. State, 433 So.2d 479 (Ala.1983); Knight v. State, - So.2d - [Ms. 4 Div. 7, May 3, 1983]; Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), aff’d, 414 So.2d 993 (Ala.1982).

The trial court, in its colloquy with appellant, identified in substance two of the refused charges, numbers six and nine. We have reviewed those charges and find them to be misstatements of the law. Consequently, they were properly refused.

The judgment of the circuit court is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Ples Henry McDAVID a/k/a Ples Henry McDavid Woods v. STATE.
    6 Div. 48.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-978.

      William H. Manasco, Carbon Hill, for appellant.
    Charles A. Graddiek, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted of the fraudulent use of a credit card in violation of Section 13A-9-14(b), Code of Alabama 1975. He was sentenced as an habitual offender to twenty-five years’ imprisonment. Four issues are presented on appeal.

I

The defendant contends that the statute under which he was indicted and convicted is unconstitutionally vague and indefinite because “it defines an attempt to violate the article and the completed commission as one and the same fact”, and is therefore in conflict with Section 13A-4-2 defining attempts.

In pertinent part, Section 13A-9-14(b) provides:

“A person commits the crime of fraudulent use of a credit card ... if he uses, attempts to use or allows to be used, a credit card ... for the purpose of obtaining property, services or anything else of value with knowledge that:
“(1) The card is stolen.” (emphasis added)

The fraudulent use of a credit card (of using or attempting to use) is a Class C felony. Section 13A-9-14(e).

Section 13A-4-2(a) defines an attempt: “A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.” An attempt may be a felony or a misdemeanor and is graded at one level below that for the substantive crime committed. Section 13A^-2(d). An attempt to commit a Class C felony would ordinarily constitute a Class A misdemeanor. Section 13A-4-2(d)(4).

A statute making an offense both a felony and a misdemeanor would be unconstitutional and in violation of Ala. Const. Art. I, Section 6, giving the accused the right in all criminal prosecutions to demand the nature and cause of the accusation. Kyles v. State, 358 So.2d 797, 799 (Ala.Cr.App.), cert. denied, Ex parte Kyles, 358 So.2d 799 (Ala.1978); State v. Hall, 24 Ala.App. 336, 337, 134 So. 898 (1931).

Applying clear and simple rules of statutory construction, we find no conflict between the statute defining the offense of fraudulent use of a credit card and the statute defining attempts. Statutes adopted at the same time and constituting one system of law “will be construed in pari materia so as to effectuate the legislative intent, giving each, where it is reasonably possible to do so, a field of operation.” Coan v. State, 224 Ala. 584, 585, 141 So. 263 (1932). “Special provisions relating to specific subjects control general provisions relating to general subjects. The things spe-dally treated will be considered as exceptions to the general provisions.” City of Birmingham v. Southern Express Co., 164 Ala. 529, 538, 51 So. 159 (1909). A particular statute will govern a general statute. Grimes v. State, 402 So.2d 1094, 1096-97 (Ala.Cr.App.1981). “General statutory provisions yield to specific provisions where conflicts exist between the two.” Chesteen v. State, 365 So.2d 102, 107 (Ala.Cr.App.), cert. quashed, 365 So.2d 108 (Ala.1978).

“A statute making it a crime to attempt to commit an offense is intended to be of a general nature, punishing all attempts to commit any crime, and it has been held to apply only where there is no other specific provision of law, punishing such attempt.”
22 C.J.S. Criminal Law, Section 74, p. 227 (1961).

Applying these principles, we find that Section 13A-9-14 makes both the actual commission and the attempted commission of the crime defined in that section a Class C felony.

The fact that the statute punishes both the attempt and commission of the crime as a Class C felony does not render it unconstitutional. The legislature has the power to define crime and fix the punishment for the violation of its criminal statutes. Woco Pep Co. of Montgomery v. City of Montgomery, 213 Ala. 452, 454, 105 So. 214 (1925); State v. Campbell, 21 Ala.App. 303, 304, 107 So. 788 (1926). As noted in the Commentary to Section 13A-9-14, this special statute “is justified because of the unusual nature of the type of theft.”

II

Since Section 13A-9-14 makes the fraudulent use of a credit card a felony, the offense need not have been committed in the officer’s presence before he could make an arrest without a warrant. Alabama Code Section 15-10-3 (1975).

The City of Sumiton is located in Walker County. A Sumiton police officer arrested the defendant in Jefferson County. However, the officer testified that the arrest was still made within the police jurisdiction of Sumiton. Under Section 11-40-10, Code of Alabama 1975, the police jurisdiction of cities having less than 6,000 inhabitants “shall extend also into the adjoining territory within a mile and a half of the corporate limits of such city or town.”

III

The defendant argues that some form of “testimonial verification” was necessary to properly introduce at the sentencing hearing the certified copies of the minute entries of the defendant’s prior convictions.

Under Section 12-21-35(a), Code of Alabama 1975, prior convictions are properly proved through the use of certified copies of the minute entries showing the prior convictions. The purpose of this statute admitting certified copies of public records as prima facie evidence is “to avoid the necessity of removing the original records from their proper custody and of requiring the attendance of public officers and employees as witnesses in the courts.” Lidge v. State, 419 So.2d 610, 615-16 (Ala.Cr.App.), cert. denied, Ex parte Lidge, 419 So.2d 616 (Ala.1982).

IV

When the trial judge asked the defendant if he had anything to say before the sentence was pronounced, the defendant responded:

“DEFENDANT: Well ... the indictment that ya’ll’ve got me convicted on, I’m not that person. You’ve got me convicted for the wrong person.
“MR. MANASCO (Defense Counsel): For what grounds do you state that, please?
“DEFENDANT: My name, I’m not a Woods.”
“I wasn’t indicted and convicted in my name. I was convicted in a false name.”
“How could you plead me guilty or sentence me on a habitual act, when they’re not none of me? I’m not a Woods, I’m a McDavid.”

The defendant was indicted as “Pies Henry McDavid, also known as Pies Henry McDa-vid Woods.” Five of the prior felony convictions were in the names of Pies Henry McDavid. The sixth was listed as “Pies McDavid, alias Pies Henry McDavid, alias Pies McDaniel, alias Pies Henry McDaniel.” The identity of names is presumptive evidence of the identity of the person. Nelson v. State, 151 Ala. 2, 43 So. 966 (1907).

V

The trial judge’s refusal to give the defendant’s two requested charges is not properly preserved for review. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), affirmed, Ex parte Allen, 414 So.2d 993 (Ala.1982). Additionally, one of the charges is an incorrect statement of law and the second requested charge is merely a request for instructions.

We have reviewed all the issues raised on appeal. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Willie MINNIFIELD v. STATE of Alabama.
    6 Div. 659.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-997.
    William K. Higgins, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Willie Minnifield was indicted for and convicted of sodomy in the first degree, pursuant to § 13A-6-63, Code of Alabama 1975, and sentenced under the Habitual Felony Offender Act to life imprisonment without parole.

The evidence is undisputed that on April 19, 1980, an act of sodomy, as defined in §§ 13A-6-63 and § 13A-6-60(2), Code of Alabama 1975, was committed on a three-year-old boy in an abandoned house near his grandmother’s home. The boy had been missing for several hours and was found after dark in the abandoned home as a result of a police search of the neighborhood.

The police officers located the boy by flashlight and testified that when he was discovered he was lying, nude from the waist down, beside the appellant. The appellant was not wearing any pants at the time.

An examination of the appellant’s clothing revealed a mixture of blood and fecal matter on his undershorts, the bottom of his sweater, his undershirt and the front of his pants.

The appellant entered a plea of not guilty and testified that, although he remembered entering the abandoned house at approximately 7:30 p.m. to “sleep-off” the effect of some alcohol and drugs that he had consumed, he did not know where the boy came from and he did not touch the boy. He stated that he was on probation and parole at the time, and chose to sleep in the abandoned house rather than risk an arrest for public drunkeness. He testified that he had consumed six or seven beers, two “fifths” of wine and a half pint of gin during the day prior to entering the abandoned house at 7:30 p.m.

I

The appellant was not denied his right to a “speedy trial.” He was arrested on April 19, 1980, the date of the instant offense, and indicted on June 6, 1980. Several unexplained continuances delayed his scheduled trial date until December 19, 1980, on which date a crowded trial court docket caused a further continuance to March 30, 1981. On March 25, 1981, a final unexplained continuance to June 29, 1981, was granted the State. On March 26,1981, the appellant filed a “speedy trial” motion requesting that the trial be conducted as previously scheduled on March 30, 1981. This motion was denied, but the trial was held as scheduled on June 29,1981, approximately 14 months after appellant’s initial arrest, and only three months after his request for a speedy trial.

The only prejudice claimed by the appellant due to this trial delay is his incarceration between the arrest and trial. However, according to his own testimony, the appellant was on probation and parole at the time of his arrest in the instant case. For aught that appears in the record, his incarceration prior to his trial for the instant offense resulted from a revocation of his parole or probation or both.

In any event, we have reviewed the facts and circumstances of the delay in this case in light of the standards established in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). On the authority of our recent holdings in Byrd v. State, 421 So.2d 1344 (Ala.Cr.App.1982), and Cofer v. State, 440 So.2d 1116 (Ala.Cr.App.1983), we here conclude that in this instance, the trial delays (14 months from date of arrest and only three months from the date of the filing of the speedy trial motion) were not long enough to be “presumptively prejudicial”, were not “patently offensive” to this appellant, and did not deny him his constitutional right to a speedy trial.

II

The appellant further contends that the trial court erred by refusing to give appellant’s charge on intoxication. The requested charge, a photostatic copy of a page from an unidentified reference book with the undesired portions marked out, (R. 164) stated as follows:

“1. It is for you to determine the extent of the defendant’s intoxication, and whether it operated to prevent his forming the intent necessary to constitute the crime.
“2. Whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute a particular type or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose,,motive, or intent with which he committed the act. Any intoxication, not necessarily total, may be considered on the question of intent.
“3. The term ‘intoxication’ means a condition resulting from the drinking of alcoholic beverages which impair a person’s normal faculties—either of perception or will or judgment—so that he or she no longer has the capacity to know the nature of the act he is committing, or the capacity to form an intent to commit such an act.”

Jury instructions, even those stating accurate legal principles, are properly refused if they are confusing or misleading or fail to relate such legal principles to the facts of the case at bar. See, Brown v. State, 39 Ala.App. 149, 96 So.2d 197 (1957); Hudson v. State, 335 So.2d 208 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala.1976); Wyrick v. State, 409 So.2d 969 (Aia.Cr.App.1981); Rogers v. State, 417 So.2d 241 (Ala.Cr.App.1982). See also, People v. Summer, 64 A.D.2d 658, 407 N.Y.S.2d 53 (1978).

Appellant’s requested instruction on “intoxication” is generally faulty because it is incomplete, confusing and misleading. It contains more than one principle of law. It defines “intoxication” in a manner which is somewhat inconsistent with the definition of “intoxication” set forth in § 13A-3-2(e)(1), Code of Alabama 1975. Most noticeably, it fails to instruct the jury with reference the effect of such legal principles on the facts and issues of the instant case. Therefore, it was properly refused.

Furthermore, even if an “intoxication” instruction was justified by the evidence, the trial court will not be placed in error for failing to so charge because a proper instruction was not here requested by the appellant. Green v. State, 342 So.2d 419 (Ala.Cr.App.1977).

Ill

Appellant’s other contention on appeal is without merit. The trial court did not err in denying appellant’s motion for a mistrial on the ground that evidence, from witness Knoppenger’s toxicology report, should have been excluded because appellant was not provided a copy of the report prior to trial. The State was not required to provide the appellant with a copy of this report. Brown v. State, 401 So.2d 213 (Ala.Cr.App.), cert. denied, 401 So.2d 218 (Ala.1981). Although the appellant filed a motion to produce, which included a request for any toxicology reports, he never obtained a ruling thereon from the trial court. See, Heard v. State, 351 So.2d 686, 688 (Ala.Cr.App.1977).

Moreover, there was evidence that the State’s attorney did not even have a copy of the report. In any event, the appellant was not denied a copy of the report, because this is a public record which he could have obtained from the Auburn Laboratory Headquarters. (R. 93).

There being no error in this record, this ease is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur. BOWEN, P.J., in result only.

      . For examples of proper “intoxication” instructions in other situations see, Johnson v. State, 32 Ala.App. 217, 24 So.2d 228 (1945) (negating “felonious intent to steal” in larceny case); Moran v. State, 34 Ala.App. 238, 39 So.2d 419 (1949) (negating “intent to ravish” in assault with intent to rape case); Lawrence v. State, 341 So.2d 188 (Ala.Cr.App.1977) (negating “intent to kill” in homicide case).


text:
    Bonita RICHARDSON v. STATE.
    8 Div. 794.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-981.
    William R. Hovater, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for theft of property in the second degree. Alabama Code Section 13A-8-4(a) (1975). Sentence was five years’ imprisonment. The only issue raised on appeal concerns a violation at the trial judge’s favorable ruling on the defendant’s motion in limine.

Mrs. Lilly Henderson was working at Colony Warehouse in Muscle Shoals on June 10, 1982. She testified that the defendant came in the store “with another woman and two other fellows” and they were all trying on clothes. She observed the defendant take her purse from underneath the cash register. The defendant then told the others to “come on”. Mrs. Henderson testified that “(t)he ones that had things in their hands just threw them up in the air and ran out the door” with the defendant.

After a jury had been selected but prior to any witness testifying, defense counsel filed a motion in limine to prevent Mrs. Henderson from using the term “shoplifting” in describing the activities of the defendant and her companions in the store. The trial judge granted the motion • and thoroughly and patiently explained to Mrs. Henderson that she could only testify to what she actually observed and could not say that the group was shoplifting or attempting to shoplift “because that’s a legal conclusion” and because “it’s not legal testimony to testify to what somebody else is thinking.”

When Mrs. Henderson was called as a witness at trial and during her testimony on direct examination the alleged error occurred:

“Q. All right and would you tell the Court and the Jury, please ma’am, what you observed them do during the period of time that they were there?
“A. O.K. They were — they were picking up clothes to try on and they were trying to shoplift.
“MR. HOVATOR (Defense Counsel): I object and move for a mistrial, Your Hon- or.”

The trial judge sustained the objection and immediately and thoroughly instructed the jury to completely disregard the witness’s last answer.

Out of the jury’s presence, the trial judge stated that he thought that he had “made it perfectly clear to the jury that they cannot consider that.” Defense counsel declined the trial judge’s offer for additional instructions.

The availability and utility of the motion in limine practice in this state were recognized in Acklin v. Bramm, 374 So.2d 1348, 1349 (Ala.1979).

The witness’s use of the term “shoplifting” in violation of the order and instructions of the trial judge did not automatically entitle the defendant to the declaration of a mistrial. See Lynn v. State, 250 Ala. 384, 386, 34 So.2d 602 (1948). A violation of the exclusionary ruling granting a motion in limine does not always or automatically result in ineradicable prejudice to the accused and error requiring a mistrial. Factors which must be considered are the likelihood of prejudice resulting from the violation and whether or not the trial court gave any “curative” instructions. Annot. 63 A.L.R.3d 311 (1975).

We fail to see how the use of the term “shoplifting” necessitates a mistrial in this particular case. While a witness may not testify to the legal effect of a transaction, Raper v. State, 30 Ala.App. 302, 303, 4 So.2d 657 (1941), we fail to apprehend the prejudice created by this remark when the witness further testified to exactly and only what she saw and observed. Davis v. State, 352 So.2d 3, 7 (Ala.Cr.App.), cert. denied, Ex parte Davis, 352 So.2d 8 (Ala.1977); Wade v. State, 349 So.2d 141, 147-48 (Ala.Crim.App.1977).

The situation here is substantially identical to that present in Richardson v. State, 374 So.2d 433, 435 (Ala.Cr.App.1979), where we held that “(i)f the trial judge acts promptly to impress on the jury that improper statements are not to be considered by them in their deliberation, the prejudicial effect of the remarks is removed.” We conclude that the trial court committed no error in denying the deféndant’s motion for a mistrial.

Besides the motion for a mistrial, the defendant raised this issue in her motion for a new trial. In support thereof she filed the sworn affidavit of Christine Gais-ser who served on the jury.

In the affidavit, juror Gaisser stated that another juror stated that based on his experience in working in a retail department store, he “felt Ms. Henderson knew to watch them for shoplifting.” Gaisser stated that she was not sure whether the juror used the term “shoplift” but his discussion implied that.

Based on this affidavit, the defendant asserts that Ms. Henderson’s statement at trial was not cured by the instructions of the trial court and consequently his motion for a new trial should have been granted. We disagree.

Ms. Henderson testified that she had worked at the store for seven years and gave a detailed statement of what she actually observed. Her account of the defendant’s actions in concealing the merchandise and leaving the store without paying admit only one reasonable conclusion — that the defendant was stealing or shoplifting.

Juror Gaisser’s affidavit does not supply the necessary basis for this Court to conclude that the unidentified juror’s statement was a direct consequence of Ms. Henderson’s reference to “shoplifting”. Additionally, we note that public policy forbids the disclosure of deliberations in the jury room. The verdict of the jury cannot' be impeached by the affidavits of jurors as to what transpired among them while deliberating. Harris v. State, 241 Ala. 240, 243, 2 So.2d 431 (1941); Law v. State, 407 So.2d 572, 574 (Ala.Cr.App.1981).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.