Appeal from Dale Circuit Court. (CC-93-340). Charles Woods, TRIAL JUDGE.
Rehearing Denied May 5, 1995. Certiorari Denied June 30, 1995. Released For Publication December 14, 1995.
Taylor, Presiding Judge. All The Judges Concur.
The opinion of the court was delivered by: Taylor
The appellant, Martin Anthony Gunter, was convicted of sexual torture, a violation of § 13A-6-65.1, Code of Alabama 1975, and of sexual misconduct, a violation of § 13A-6-65, Code of Alabama 1975. The jury acquitted him on the charges of rape in the first degree, sodomy in the first degree, and a separate count of sexual torture. He was sentenced to 10 years' imprisonment on his conviction for sexual torture, and that sentence was split so that he was to serve three years in the penitentiary and was placed on probation for the remainder of the sentence. In addition, he was sentenced to six months in jail on his conviction for sexual misconduct and that sentence was to be served concurrently with his sentence for sexual torture.
The state's evidence tended to show that on August 25, 1993, the appellant sexually tortured M. M. by penetrating her vagina with the barrel of a .410 shotgun.
M. M. testified that during the afternoon of August 25, 1993 she talked with her friend, Becky Grider, about going out that night. Later that evening, M. M., Grider, and James Morrill went to the appellant's trailer. The appellant's roommate, Steve Stafford, was the only one at the trailer. M. M. testified that Stafford left the trailer to meet the appellant at a bar called the Brass Rail. M. M. testified that she, Grider, and Morrill watched television at the trailer for approximately one and one-half hours while Stafford was away. M. M. testified that Stafford and the appellant returned at approximately 9:00 p.m. At that time, the group began drinking beer and playing a drinking game called "quarters" at the kitchen table. M. M. testified that they played for approximately 45 minutes, and that everyone then left except her and the appellant. M.M. decided to wait at the trailer for Grider who said that she would return shortly.
M. M. testified that after everyone left the appellant started talking about having sex with her and was telling her that she should break up with her boyfriend. She told him that she would not. He then asked her what she would do if he just picked her up and carried her to his room to have sex with him. Again, M. M. said that she was not interested in having sex with him. M. M. testified that she starting getting scared at that point. She said that she went into the bathroom and then came back out. She said that she was standing near the appellant's bedroom door and that he started talking about having sex again.
M. M. testified that the appellant pulled her clothes off and pushed her onto his bed. She said that she was crying and telling him to stop, and that he hit her in the face with his fist. She testified that she tried to scream, but that the appellant threatened to kill her if she was not quiet. He pointed a shotgun at her and told her he wanted to have sex with her. She testified that at one point he jumped up and looked out the doorway to the bedroom, but kept the shotgun pointed at her. Although M. M. appeared to have difficulty remembering the exact order of events, she testified that several events occurred. She said that the appellant tried to have sex with her, but that he was unable to because he could not maintain an erection. She also said that the appellant at some point inserted the tip of the shotgun and the tip of a broom handle in her vagina. She further testified that he later performed oral sex on her and tried to have sex with her again, but that she prevented him from doing so. M.M. further testified that at times the appellant would stop and apologize to her and talk about killing himself.
M. M. and the appellant heard an automobile approaching. M. M. testified that the appellant would not give her clothes to her, but that instead he gave her some shorts and a T-shirt to wear. Grider came in and agreed to take her home. While Grider was driving her home, M. M. told Grider what had happened. When they arrived at M. M.'s house, M. M.'s friend Terrance Mann, was waiting outside. She said that she did not want to talk to him and that she went inside to go to bed. Mann remained outside and started honking his car horn. M. M. called the police to get him to stop. When the police came, M.M. told them about the events that she alleged had occurred at the appellant's trailer earlier that evening. She then went to Lyster Army Hospital for a physical examination, photographs, and "rape kit" or "sexual assault kit" examination.
William H. Landrum, a forensic serologist with the Alabama Department of Forensic Sciences, examined the shotgun and the broom handle taken from the appellant's trailer. He testified that the tips of both contained vaginal epithelium cells, which, in his opinion, resulted from vaginal contact.
The trial court allowed the appellant to present two witnesses to testify about prior sexual contact between the appellant and M.M. The court allowed this testimony after an in camera offer of proof by the appellant pursuant to the exception in § 12-21-203(c), Code of Alabama 1975. Section 12-21-203 is commonly known as the "rape shield statute." The appellant, Robert Donald, and Brian Etheridge testified about a party they had attended with M. M. in March 1993 at which M. M. was present. They testified that they had all spent the day at the river with a group of other people. At dark, the party moved to the Steve Stafford's trailer (where the appellant lived at the time of the crime). The appellant and Donald testified that M. M. removed her entire bathing suit and walked around naked for about one and one-half hours. Also, they both testified that she allowed several of the men at the party, including the appellant, to touch her breasts and to touch her between her legs. Etheridge testified that while he was at Stafford's trailer M. M. had removed the top of her two-piece bathing suit and that he saw several people, including the appellant, touch her. However, he testified that he left early and did not ever see M. M. completely naked. All three testified that she did not resist any of the contact.
The appellant raises four issues on appeal.
The appellant first contends that the trial court erred in denying his motion for a judgment of acquittal. More specifically, he contends that the state could not have proved a prima facie case because the jury acquitted him on other counts of the indictment similar to the ones on which it convicted him.
"In determining whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, we must accept as true the evidence introduced by the state, accord the state all legitimate inferences therefrom, and view the evidence in the light most favorable to the prosecution. McMillian v. State, 594 So. 2d 1253 (Ala. Cr. App. 1991); Faircloth v. State, 471 So. 2d 485 (Ala. Cr. App. 1984), aff'd, 471 So. 2d 493 (Ala. 1985); Cumbo v. State, 368 So. 2d 871 (Ala. Cr. App. 1978), cert. denied, 358 So. 2d 877 (Ala. 1979). "
Underwood v. State, 646 So. 2d 692, 695 (Ala. Cr. App. 1993).
The appellant was charged in a four-count indictment with rape in the first degree, sodomy in the first degree, and two counts of sexual torture (one for use of the broom handle and one for use of the shotgun). He was acquitted on the charges of rape in the first degree, sodomy in the first degree, and one count of sexual torture (use of the broom handle). He contends that because he was acquitted on these charges, the state could not have proven the element of forcible compulsion present in the crime of sexual torture. In other words, he argues that the verdicts are inconsistent.
In United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984), the United States Supreme Court upheld the rule enunciated in Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), "that a criminal defendant convicted by a jury on one count could not attack that conviction because it was inconsistent with the jury's verdict of acquittal on another count." The Court recognized that a jury might very well reach inconsistent verdicts on different offenses through "mistake, compromise, or lenity." Powell, 469 U.S. at 65, 105 S. Ct. at 476, 83 L. Ed. 2d at 468. However, neither the government nor the defendant can challenge such verdicts. 469 U.S. at 65, 105 S. Ct. at 477, 83 L. Ed. 2d at 468. "Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake." Powell, 469 U.S. at 66, 105 S. Ct. at 477, 83 L. Ed. 2d at 469. This court has recognized this rule. Inmon v. State, 585 So. 2d 261, 268 (Ala. Cr. App. 1991); Hammond v. State, 497 So. 2d 558 (Ala. Cr. App. 1986). In reality, it is common for the prosecuting authority to indict on multiple counts and for the jury to convict on only one.
Furthermore, the Court in Powell distinguished an attack on inconsistent verdicts from a review of the sufficiency of the evidence.
"Finally, we note that a criminal defendant is already afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. This review should be independent of the jury's determination that evidence on another count was insufficient. The Government must convince the jury with its proof, and must also satisfy the courts that given ...