Brown v. State

737 So. 2d 487, 1999 Ala. Crim. App. LEXIS 102, 1999 WL 254479
CourtCourt of Criminal Appeals of Alabama
DecidedApril 30, 1999
DocketCR-97-0862
StatusPublished
Cited by2 cases

This text of 737 So. 2d 487 (Brown v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. State, 737 So. 2d 487, 1999 Ala. Crim. App. LEXIS 102, 1999 WL 254479 (Ala. Ct. App. 1999).

Opinion

LONG, Presiding Judge.

John William Brown III was convicted of assault in the second degree, a violation of § 13A-6-21(a)(3), Ala.Code 1975. He was sentenced to six years’ imprisonment. The sentence was split, and he was ordered to serve 18 months in confinement, to be followed by 4 years on probation.

On appeal, Brown contends that the trial court erred in refusing his request that the jury be instructed on the lesser included offense of assault in the third degree, as defined at § 13A-6-22(a)(2), Ala.Code 1975.

The evidence presented at trial tended to show the following. Sometime between 3 p.m. and 4 p.m. on the afternoon of July 6, 1996, six-year-old Virginia Cantrell was playing with several other children in the street near the curb in front of Crystal Martin’s house on Ninth Avenue in Decatur. Amanda Peebles, who was babysitting Martin’s two sons, and Donna Cantrell, Virginia’s mother, were sitting on the front porch of Martin’s house, watching the children play. Peebles and Cantrell heard the squeal of tires and looked up to see an automobile pulling away from a stop sign one block south of Martin’s residence. According to Peebles and Cantrell, the car was approaching Martin’s residence at a high rate of speed. When the car reached Martin’s residence, it glanced off another car that was parked at the edge of the street and spun around, striking and injuring Virginia and two other children as they stood near the curb. Brown was driving the car that struck the children.

Robert Summerford, a passenger in the car driven by Brown, testified that as Brown approached Martin’s residence, Brown told him to “Watch this,” and said that he was “going to fuck with the kids.” (R. 223-24.) Summerford stated that Brown then swerved to the right, toward the children, and then jerked the steering wheel back to the left. At that point, Summerford said, Brown’s car “went sideways,” struck the parked car, and then hit the children. (R. 224.) According to Sum-merford, the children were standing in the street when Brown’s car hit them. Sum-merford stated that Brown was driving between 40 and 50 miles per hour when his car swerved. He testified that Brown was under the influence of alcohol at the time and was driving erratically before the incident.

The injuries to Virginia Cantrell formed the basis of the assault charges that were filed against Brown. Medical testimony revealed that Virginia suffered a broken arm as a result of being hit by Brown’s car. Dr. Verne Webster, the emergency room physician who treated Virginia at the hospital immediately after the incident, testified that Virginia had sustained a dis[489]*489placed fracture of her left humerus, the bone between the shoulder and the elbow, as a result of the accident. Dr. Webster stated that Virginia was complaining of pain in her arm as he treated her in the emergency room. After taking X-rays of Virginia’s arm and diagnosing the fracture, Dr. Webster called in an orthopedic physician, who set the fracture and placed Virginia’s arm in a cast. Virginia was released from the hospital that same evening. Dr. Webster testified that he did not treat Virginia again after the evening of the incident.

When questioned on cross-examination, Dr. Webster stated that he considered a broken arm to be a serious physical injury. He explained that such an injury required emergency treatment, and that if it were not treated, it could lead to disability or disfigurement. He stated that because he did not conduct any follow-up examinations on Virginia, he did not know whether she suffered any disfigurement or other complications as a result of her injury. On redirect examination, Dr. Webster stated that even if a break like the one suffered by Virginia was properly treated, there was a chance that such an injury could cause a loss of function in the arm, such as an inability to straighten the arm completely. On recross-examination, Dr. Webster testified that children generally recuperate from broken bones better than adults do; he acknowledged that most of the children he had treated for broken arms “come out of it just fine.” (R. 138.)

Donna Cantrell, Virginia’s mother, testified that Virginia wore a cast on her arm for two months after the incident. She stated that Virginia was in “a lot of pain” during that time, and that she cried every day. (R. 269.) Ms. Cantrell testified that Virginia continued to have trouble using her arm at the time of trial, some 16 months after the incident. She explained that Virginia “cannot pick up the stuff that she used to because she has to' use her right hand; she uses her left, and she can’t straighten her left arm all the way out.” (R. 270.) On cross-examination, Ms. Cantrell acknowledged that Virginia’s arm had been “getting better” over time. (R. 272.)

As noted above, the jury found Brown guilty of assault in the second degree, as defined at § 13A-6-21(a)(3), Ala.Code 1975. Brown contends that the trial court erred in refusing his request for an instruction on the lesser included offense of assault in the third degree, as defined at § 13A-6-22(a)(2).

Section 13A-6-21(a)(3), AlaCode 1975, provides: “A person commits the crime of assault in the second degree if ... [h]e or she recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.”

Section 13A-6-22(a)(2), Ala.Code 1975, provides: “A person commits the crime of assault in the third degree if ... [h]e recklessly causes physical injury to another person.”

An element of assault in the second degree, as defined at § 13A-6-21(a)(3), is that the victim has sustained a “serious physical injury.” An element of assault in the third degree, as defined at § 13A-6-22(a)(2), is that the victim has sustained a “physical injury.” Brown argues that he was entitled to have the jury instructed on the lesser included offense of assault in the third degree, defined at § 13A-6-22(a)(2), because, he says, the jury reasonably could have concluded that the injury sustained by Virginia Cantrell was not a “serious physical injury,” but was instead merely a “physical injury.” A defendant is entitled to an instruction on a lesser included offense where a reasonable view of the evidence supports the defendant’s position. Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973).

Although the State concedes that there are circumstances under which assault in the third degree, as defined at § 13A-6-22(a)(2), may be a lesser included offense of assault in the second degree, as defined at § 13A-6-21(a)(3), the State argues that there was no evidence tending to bring Brown’s offense within the definition of the [490]*490lesser offense. The State argues that because the uncontroverted evidence showed that a “dangerous instrument,” i.e., Brown’s automobile, inflicted Virginia Cantrell’s injuries, Brown’s offense did not fall within the definition of assault in the third degree, as defined at § 13A-6-22(a)(2). Assault in the second degree, as defined at § 13A-6-21(a)(3), involves the use of a dangerous instrument, which is defined at § 13A-1-2(12), Ala.Code 1975, as “[a]ny instrument, article or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is highly capable of causing death or serious physical injury, and such term includes a ‘vehicle,’ as that term is defined in subdivision (13) of this section.” Assault in the third degree, as defined at § 13A-6-22(a)(2), however, does not specify the instrumentality of the injury.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Morris v. State
196 So. 3d 1256 (Court of Criminal Appeals of Alabama, 2015)
Parker v. State
153 So. 3d 864 (Court of Criminal Appeals of Alabama, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
737 So. 2d 487, 1999 Ala. Crim. App. LEXIS 102, 1999 WL 254479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-state-alacrimapp-1999.