Moore v. State

677 So. 2d 819, 1996 Ala. Crim. App. LEXIS 4, 1996 WL 17881
CourtCourt of Criminal Appeals of Alabama
DecidedJanuary 19, 1996
DocketCR-94-1447
StatusPublished
Cited by3 cases

This text of 677 So. 2d 819 (Moore 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
Moore v. State, 677 So. 2d 819, 1996 Ala. Crim. App. LEXIS 4, 1996 WL 17881 (Ala. Ct. App. 1996).

Opinion

LONG, Judge.

The appellant, Winifred Howard Moore, was convicted of burglary in the first degree, a violation of § 13A-7-5, Code of Alabama 1975. He was sentenced to 10 years’ imprisonment.

Veronica Irby testified at trial that in September 1994, she and Kathleen Williams were sharing an apartment. Irby stated that in the early morning hours of September 20, 1994, she and Williams were both in the apartment when she said she observed two males entering the apartment through an upstairs window. Irby called out to Williams and then ran out of the apartment and telephoned the police.

Kathleen Williams testified at trial that she was awakened by the sound of Veronica Irby screaming. When Williams left her bedroom on the second floor of the apartment to investigate, she saw two men standing in the upstairs hallway. She recognized one of the men as her cousin, the appellant. Williams testified that she had not given either man permission to enter her apartment that night.

The appellant and the other male, Ricky Lee Ward, ordered Williams downstairs. Williams testified that Ward had a shotgun pointed at her. She testified that at Ward’s direction, the appellant took the stereo from her apartment, and returned a short time later and took her stereo speakers. While this transpired, Williams remained seated on the sofa, and Ward pointed the gun at her.

Williams testified that she became concerned for her and her children’s safety, so she got into a struggle with Ward over the weapon. She indicated that at that point, the appellant intervened in the struggle and tried to help her. As they were struggling over the weapon, Williams heard Veronica Irby call her name. The appellant and Ward fled [820]*820the apartment and were captured by the police outside the apartment.

The appellant did not deny his involvement in the burglary; he told the police that he took the stereo from Williams’ apartment and took it to Ricky Ward’s girlfriend’s apartment, located approximately 150 yards from Williams’s apartment. The police recovered the stereo from Ward’s girlfriend’s apartment.

I.

The appellant contends that the evidence was insufficient to support his conviction because, he argues, the state failed to prove that he acted with the requisite intent. Specifically, he maintains that because he helped Kathleen Williams, one of the victims, during the struggle over the weapon, and because Williams testified that she did not want to press charges against him, the evidence showed that he had renounced his involvement in the burglary. We disagree.

The appellant was charged with burglary in the first degree, a violation of Section 13A-7-5, Code of Alabama 1975, which reads, in pertinent part:

“(a) A person commits the crime of burglary in the first degree if he knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in dwelling or in immediate flight therefrom, he or another participant in the crime:
“(1) Is armed with explosives or a deadly weapon.”

Section 13A-2-24, Code of Alabama 1975, states, in relevant part:

“Unless otherwise provided by the statute defining the offense, a person shall not be legally accountable for behavior of another constituting a criminal offense if:
“(3) Prior to the commission of the offense, he voluntarily terminated his effort to promote or assist its commission and either gave timely and adequate warning to law enforcement authorities, or to the intended victim, or wholly deprived his complicity of its effectiveness in the commission of the offense. The burden of injecting this issue is on the defendant, but this does not shift the burden of proof.”

(Emphasis added.)

When viewing the evidence in the light most favorable to the state, Jackson v. State, 516 So.2d 726 (Ala.Crim.App.1985), we find that the evidence was sufficient to support the jury’s verdict. Testimony from Williams revealed that she awoke to find the appellant and another man, who was armed with a shotgun, in her apartment. While the appellant’s accomplice held a gun on Williams, the appellant removed the stereo and stereo speakers from her apartment. Evidence indicated that Williams did not give the appellant or his accomplice permission to enter her apartment or to take the stereo.

“Intent is a jury question.” Hoobler v. State, 668 So.2d 905, 906 (Ala.Crim.App.1995). The jury was charged on the principle of repudiation, but as evidenced from its verdict, the jury did not believe that the appellant had repudiated his involvement in the crime before the commission of the offense, and its verdict is amply supported by the evidence. From the evidence presented, the jury could certainly have reasonably inferred that the appellant did not renounce his participation in the burglary, but rather, he intervened to help the victim only after the burglary had been committed.

We find that the jury’s verdict is supported by sufficient evidence. Accordingly, the appellant’s conviction for burglary in the first degree is affirmed.

II.

While we affirm the appellant’s conviction, we must nevertheless remand this cause to the trial court because a review of the record reveals that the appellant’s sentence of 10 years’ imprisonment is not in compliance with the law. See, Scott v. State, 627 So.2d 1133 (Ala.Crim.App.1993) (wherein this Court took notice that the trial court incorrectly ordered that the defendant’s enhanced sentences were to run concurrently, and this Court remanded the cause to the trial court with instructions that the trial court resentence the appellant in accordance [821]*821with the law). See also, Hoppins v. State, 451 So.2d 365, 365 (Ala.1983) (wherein the Alabama Supreme Court stated that “[i]n approving Rule 45B [Ala.R.App.P.], this Court did not intend to restrict the authority of the Court of Criminal Appeals to consider obvious errors” 1).

As noted, the appellant was convicted of burglary in the first degree. Burglary in the first degree is a Class A felony. 13A-7~5(b), Code of Alabama 1975. Section 13A-5-6, Code of Alabama 1975, provides, in relevant part:

“(a) Sentences for felonies shall be for a definite term of imprisonment, which imprisonment includes hard labor, within the following limitations:
“(1) For a Class A felony, for life or not more than 99 years or less than 10 years.
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“(4) For a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 20 years.”

In Hammond v. State, 497 So.2d 558 (Ala.Crim.App.1986), this Court addressed a contention by a defendant that because the evidence did not establish that he actually possessed the deadly weapon during the commission of the robbery for which he was convicted, his sentence had been illegally enhanced pursuant to § 13A-5-6(a)(4), Code of Alabama 1975. In rejecting this contention, we held:

“[E]ven if Hammond was actually unarmed, we find his contention to be without merit.

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Related

Case v. State
230 So. 3d 1159 (Court of Criminal Appeals of Alabama, 2016)
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45 So. 3d 380 (Court of Criminal Appeals of Alabama, 2009)

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Bluebook (online)
677 So. 2d 819, 1996 Ala. Crim. App. LEXIS 4, 1996 WL 17881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-state-alacrimapp-1996.