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08/18/95 RITA BLACKWELL HOOBLER v. STATE

August 18, 1995

RITA BLACKWELL HOOBLER
v.
STATE



Appeal from Walker Circuit Court. (CC-94-234). John Madison, TRIAL JUDGE.

Released For Publication February 20, 1996.

Cobb, Judge. All the Judges concur.

The opinion of the court was delivered by: Cobb

COBB, JUDGE

The appellant, Rita Blackwell Hoobler, was convicted of theft of property in the first degree. Her sentence of four years was split and she was ordered to serve two years in the penitentiary. The appellant raises three issues.

I

The appellant contends that her motion for a judgment of acquittal should have been granted because, she says, the State failed to prove the element of intent to deprive that is necessary to sustain a conviction for theft of property. "Deprive" is defined as "to withhold property or cause it to be withheld from a person permanently or for such period or under such circumstances that all or a portion of its use or benefit would be lost to him." Ala.Code 1975, § 13A-8-1(2)(a).

The appellant argues that the facts adduced at trial fail to establish her intent to permanently deprive the owner of the truck she allegedly stole. The appellant asserts that while she was a passenger in the truck, which was owned by one of her friends, the police attempted to serve an arrest warrant on her. According to the appellant, she merely used the truck to escape capture and she had no intent to keep the truck. However, there was evidence from which the jury could find that the appellant did intend "to withhold property or cause it to be withheld from [the victim] permanently or for such period or under such circumstances that all or a portion of its use or benefit would be lost to [her]." When the police approached the appellant, she locked herself inside the truck and refused to come out, despite the requests of her friend and the police. A chase ensued, which ended when the appellant drove over an embankment, wrecking the truck. Even at this time the appellant refused to get out of the locked truck. The owner of the truck testified that she did not give the appellant permission to take her truck. R. 109.

Intent is a jury question. "Whether a defendant possessed the intent to permanently deprive another of his property is a jury question. . . . Absent clear and convincing evidence to the contrary, the jury's finding will not be reversed on appeal. . . . We are not in the business of being substitute jurors." Pugh v. State, 536 So. 2d 99, 100 (Ala.Cr.App. 1986) (The evidence was sufficient to sustain the jury's finding of guilt where "[the appellant] argues that he merely kept the video equipment beyond his lease period and that he intended to eventually return the equipment to National Video.") (citations omitted); Fuller v. State, 472 So. 2d 452, 454 (Ala.Cr.App. 1985) (Jury could conclude sufficient intent existed to sustain a conviction where "the appellant stated that he intended to return the doors and windows if he was not given permission to keep them, he admitted that he did not have the owner's permission when the took them. . . .The question of the appellant's intent was for the jury."). The evidence was sufficient to sustain the jury's finding that in order to avoid arrest the appellant intended to take and to withhold the truck "for such period or under such circumstances that all or a portion of its use or benefit would be lost to [the victim]." Ala.Code 1975, § 13A-8-1 (2)(a).

II

The appellant contends that she was denied a trial by an impartial jury because the trial court sustained an objection to the following question asked by the appellant on voir dire:

MR. BRAMER (defense counsel): Let me ask you another trick question. You did pretty good on the last one. But the second trick question. Right now, if you are all jurors and you have been sworn in, and you go back to the jury room, right now, what would your verdict be in this case?"

R. 47.

The trial court instructed the jury that the appellant was innocent until proven guilty beyond a reasonable doubt and that "to ask you a question about what the outcome of the trial would be, would be unreasonable and unfair at this time." R. 49. The defense was allowed to answer his own question by stating:

"MR. BRAMER: . . . Basically the question was what would the verdict be, and some people would say, 'We don't know because we haven't heard any evidence.' That is the whole point of the question. Your verdict at this point would be 'not guilty.' She comes into court clothed with the presumption of innocence.

"So, if you haven't heard any evidence and you went back and you took a vote, the only vote that you could bring under the law would be not guilty, and that was the point that I was trying to make."

R. 49-50.

We find no abuse of discretion in the ruling of the trial court. "'"In selecting a jury for a particular case, 'the nature, variety, and extent of the questions that should be asked prospective jurors' must be left largely within the sound discretion of the trial court. . . . In other words, the scope of the voir dire examination of the jury venire is within the broad discretion of the trial court."'" Lane v. State, 625 So. 2d 1178, 1181 (Ala.Cr.App. 1993) (citations omitted) (quoting Bracewell v. State, 447 So. 2d 815, 821 (Ala.Cr.App. 1983).

III

The appellant contends that the trial court erred in removing for cause a juror who wavered on whether she could render a fair and impartial verdict because of her past relationship with the appellant. The following transpired during voir dire.

"MR. WIERSMA [prosecutor]: Let me ask you this, does anyone here know the defendant, Mrs. Hoobler?

"JUROR [C.C.L]: Yes.

"MR. WIERSMA: How do you know ...


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