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10/21/94 WILLIE LEE ANDERSON v. STATE

October 21, 1994

WILLIE LEE ANDERSON
v.
STATE



Appeal from Jefferson Circuit Court. CC-93-3787. Michael McCormick, TRIAL JUDGE.

As Amended.

Bowen, Presiding Judge. Patterson, McMillan, J.j., concur; Taylor, J., Dissents with opinion; Montiel, J., Dissents with opinion.

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

Willie Lee Anderson, the appellant, was convicted of assault in the first degree and was sentenced to ten years' imprisonment. That sentence was "split," and he was ordered to serve three years in prison and three years on probation. This is a direct appeal from that conviction.

The appellant was indicted for rape in the first degree. He contends that the trial court erred by instructing the jury on the crimes of assault in the first, second, and third degrees as lesser included offenses of the charged rape. The appellant claims that he was indicted for one offense and was convicted for another, and that assault in the first degree, the crime for which he was convicted, is not a lesser included offense of rape, the crime with which he was charged. In the alternative, he argues that, even if assault is a lesser included offense of rape, an instruction on assault was error because the prosecution presented a prima facie case of rape.

G. H. testified that the appellant, a former boyfriend who lived next door to her, came to her home on the evening of March 4, 1993, while she was cooking dinner. G. H. was standing at the stove when the appellant hit her in the back of the neck and said, "I'm going to teach you a lesson, you bitch." R. 20. The appellant then grabbed a knife from the dish rack, held it to G. H.'s neck, and said, "Go upstairs." R. 21. When they got upstairs, the appellant ordered G. H. to "take off all [her] clothes," and she refused. The appellant then "took the knife and stuck it in [G. H.'s] left thigh." R. 23. G. H. complied with the appellant's instruction to remove her clothes.

At that point, G. H.'s four-year-old son came into the room. The appellant told the boy to lie down and, holding the knife to G. H.'s throat, ordered her to go downstairs. G. H. said that while they were downstairs the appellant "kept hitting [her] over and over and over again" with his hand and with the handle of the knife, "in [her] eye and chest and everywhere." R. 27. G. H. testified that after the appellant "had beaten [her] so bad [she] couldn't even move," R. 30, the appellant said, "I might as well go all the way," R. 29. The appellant then had sexual intercourse with G. H. against her will and without her consent.

The appellant testified that on the evening of the alleged attack G. H. invited him into her house where they talked, watched television, and drank wine together. Then, according to the appellant, they had consensual sex, after which they got into an argument. The appellant admitted that during the argument he hit G. H. and stabbed her. R. 190.

Dr. Robert Echols, who examined G. H. in the emergency room of a local hospital on Saturday, March 6, 1993, testified that both her eyes were blackened and swollen. There was a large blood clot beneath the skin on her scalp. The left side of her face was swollen and her left eardrum had been burst. She had one fractured rib, abrasions on her neck and knees, and a stab wound in her left thigh. Dr. Echols ordered several tests to determine whether G.H. had internal injuries and, finding none, he released her from the hospital the same day.

Although this Court has held that assault in the third degree may be a lesser included offense of attempted rape, Williamson v. State, 570 So.2d 722 (Ala.Cr.App. 1990), reversed on other grounds, 584 So.2d 1289 (Ala. 1991), we have never answered the question whether first degree assault may be a lesser included offense of first degree rape. We now hold that under the particular facts presented by this case assault in the first degree is a lesser included offense of rape in the first degree.

The appellant was indicted for forcible compulsion rape in the first degree, which is defined as follows in Ala. Code 1975, § 13A-6-61(a)(1):

"A male commits the crime of rape in the first degree if . . . he engages in sexual intercourse with a female by forcible compulsion."

The appellant was convicted for assault in the first degree, which is defined as follows in Ala. Code ...


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