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09/09/94 GARY OWEN MATTHEWS v. STATE

September 9, 1994

GARY OWEN MATTHEWS
v.
STATE



Appeal from Shelby Circuit Court. (CC-92-772; 92-597). Michael Joiner, TRIAL JUDGE.

Rehearing Denied October 21, 1994. Certiorari Denied January 13, 1995. Released for Publication April 22, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Gary Owen Matthews, was convicted of attempted rape *fn1 and of kidnapping. See § 13A-6-61, § 13A-4-2, and § 13A-6-43, Code of Alabama 1975. He was sentenced to 20 years' imprisonment on the attempted rape conviction and to 50 years' imprisonment on the kidnapping conviction, these sentences to be served concurrently.

This case was originally submitted to this court on December 29, 1993. The submission was set aside when the appellant filed a post-conviction petition under Rule 32, Ala.R.Crim.P. Action on the appeal was stayed until the trial court ruled on the petition. The cause was resubmitted to this court on June 16, 1994. The current appeal is from both the appellant's convictions for attempted rape and kidnapping and the denial of his Rule 32 petition.

The state's evidence tended to show the following. M.S.C. *fn2 was a college student who was working as a student intern at an elementary school in Helena, Alabama. M.S.C. testified that on January 24, 1992, at approximately 7:00 a.m. she was in front of her parents' house standing by her car when the appellant drove up in a car. He told her that he had seen her at the school and that he wanted them to spend the day together. She refused and went inside the house. A few days later, on January 27, 1992, she went home from school early in the morning to replace her contacts with her glasses. The appellant was standing behind her car as she left the house. He approached her, grabbed her, and dragged her across two neighbors' yards to a wooded area. The appellant then removed M.S.C.'s shirt and bra, sat on top of her, knocked her glasses off, and tried unsuccessfully to tie her hands and neck with a wire cable. He then removed the rest of her clothes and inserted his penis in her vagina. M.S.C. testified that he was having some difficulty penetrating her because she was struggling to get away. She said that the appellant then picked up a stick and stuck it in her vagina and told her that if she didn't cooperate "he would pull it through [her] mouth." The appellant then started calling her names. M.S.C. managed to get away and run to a nearby police station.

I

The appellant initially contends that the state failed to meet its burden of proof and that, therefore, the court erred in denying his motion for a judgment of acquittal. Specifically, he contends that "each and every evidentiary fact presented to the jury relating to both offenses charged was refuted by overwhelming evidence."

The appellant's argument concerns the weight of the evidence presented. The weight to be accorded the evidence is within the exclusive province of the jury.

"The 'weight of the evidence' refers to '"a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other."' Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652 (1982). Bland v. State, 601 So.2d 521, 524 (Ala. Cr. App. 1992); Johnson v. State, 555 So.2d 818, 820 (Ala. Cr. App. 1989). Conflicting evidence presents a jury issue. Smith v. State, 583 So.2d 990 (Ala. Cr. App.), writ denied, 583 So.2d 993 (Ala. 1991). 'The jury is the Judge of the facts, the demeanor of the witnesses, and their testimony.' Finch v. State, 445 So.2d 964 (Ala. Cr. App. 1983). Further, 'the testimony of the victim alone is sufficient to establish a prima facie case of either rape or sexual abuse.' Jones v. State, 580 So.2d 97, 103 (Ala. Cr. App. 1991), or any lesser included offense. Williams v. State, 51 Ala. App. 1, 282 So.2d 349, cert. denied, 291 Ala. 803, 282 So. 2d 355 (1973). Where facts are presented from which the jury could reasonably infer that the alleged crime has been committed, then the question must be submitted to the jury. Brandon v. State, 542 So.2d 1316 (Ala. Cr. App. 1989). 'The jury is then under a duty to draw permissible inferences from the circumstantial evidence presented and to base its verdict accordingly.' Id. at 1318."

Saffold v. State, 627 So.2d 1107, 1109 (Ala. Cr. App. 1993). See also Cunningham v. State, 630 So.2d 154 (Ala. Cr. App. 1993).

As this court stated in O'Barr v. State, [Ms. CR-92-595, September 3, 1993] 639 So. 2d 533, (Ala. Cr. App. 1993):

"Any inconsistencies and conflicts in the evidence were for the jury to resolve. This court is not a finder of fact and will not second-guess juries in their Conclusions as to the facts of a case. '"Verdicts rendered [on conflicting evidence] are conclusive on appeal." Johnson v. State, 555 So.2d 818, 820 (Ala. Cr. App. 1989).' Dailey v. State, 604 So.2d 436 (Ala. Cr. App. 1992). ...


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