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09/30/94 RODNEY DON CAMPBELL v. STATE

September 30, 1994

RODNEY DON CAMPBELL
v.
STATE



Appeal from Etowah Circuit Court. (CC-92-835). Roy Moore, TRIAL JUDGE.

Rule 39(k) Motion Denied November 10, 1994. Rehearing Denied November 10, 1994. Certiorari Denied January 20, 1995. Released for Publication April 24, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Rodney Don Campbell, was indicted for attempted murder and was found guilty of assault in the first degree, a violation of § 13A-6-20, Code of Alabama 1975. He was sentenced to 10 years' imprisonment in the penitentiary and was fined $2,500.

I

The appellant initially argues that the court erred in denying his motion for a new trial because, he says, the verdict rendered against him was inconsistent with the verdict rendered against his codefendant, his wife. The appellant and his codefendant were tried jointly; the appellant was found guilty of assault in the first degree and his co-defendant was found guilty of assault in the second degree. We do not agree that the verdicts are inconsistent. However, inconsistent verdicts between codefendants who are tried together are not automatically grounds for reversal. As this court recently stated:

"Our research reveals no Alabama cases addressing the issue of whether inconsistent verdicts between codefendants who are tried together requires reversal. However, the United States Court of Appeals for the Eleventh Circuit, ruling in an Alabama case, held, 'With respect to any possible inconsistency in the jury's verdict, the law is clear: "inconsistency in a verdict ... is not a sufficient reason to set it aside,"' provided there is ample evidence to support the jury's Conclusions. United States v. Alexander, 850 F.2d 1500, 1505-06 (11th Cir. 1988) (quoting United States v. Alvarez, 755 F.2d 830, 852 (11th Cir.), cert. denied, 474 U.S. 905, 106 S.Ct. 274, 88 L.Ed. 2d 235 (1985), cert denied, 482 U.S. 908, 107 S.Ct. 2489, 96 L.Ed. 2d 380 (1987)). See also, United States v. Dempewolf, 817 F.2d 1318, 1323 (8th Cir. 1987) (inconsistent jury verdicts as to codefendants are not grounds for reversal). 'Juries are free to return inconsistent verdicts, for whatever reason, provided their convictions are supported by adequate evidence.' United States v. Gordon, 780 F.2d 1165, 1176 (5th Cir. 1986); United States v. Merida, 765 F.2d 1205, 1220 (5th Cir. 1985)."

Goodwin v. State, [Ms. CR-91-1365, January 21, 1994] 641 So. 2d 1289, (Ala. Cr. App. 1994).

There was sufficient evidence presented for the jury to find, beyond a reasonable doubt, that the appellant committed the offense of assault in the first degree. The state's evidence tended to show that on June 27, 1992, Greg Sims was shot in the head outside the Stop-N-Shop, a convenience store and gas station, in Ballplay, Alabama. Greg Sims underwent extensive brain surgery and remained in the hospital for three months. As a result of the injuries suffered during the shooting, the victim is confined to a wheelchair, has no bowel or bladder control, and can move only one hand.

David Sims, the victim's nephew, testified that he was inside the Stop-N-Shop buying beer when the appellant came in and said that he wanted to see him outside. David Sims walked out of the store and saw the appellant fighting with Greg Sims. He handed Greg a knife, which he testified was "blunt" and would not cut, and saw Greg push it towards the appellant. They then stopped fighting and Greg backed away from the appellant, holding the knife down by his side. The appellant's wife then appeared, pointing a gun at Greg and telling him to back away from the appellant. The appellant was telling his wife to shoot Greg. The appellant then grabbed the gun from his wife, pointed the gun at Greg Sims, and shot him in the head.

Jerry Capes was at the Stop-N-Shop filling his car with gas when the shooting occurred. He testified that he saw the appellant push the victim through a window at the Stop-N-Shop and then saw the appellant shoot the victim in the head. He did not see a knife. He testified that when the shooting occurred, the victim and the appellant where standing about 6 to 8 feet apart.

Although the verdict rendered for the appellant and that rendered for his codefendant were not the same, they were not "inconsistent verdicts." There was sufficient evidence presented to support the verdict as to each codefendant and no reversal is required here. Goodwin.

II

The appellant next contends that the court erred in failing to instruct the jury on his requested charge on reckless endangerment. "An individual accused of the greater offense has a right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position. Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973)." McMillian v. State, 594 So.2d 1253, 1267 (Ala. ...


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