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Hopson v. State

Alabama Court of Criminal Appeals

April 12, 2019

Bryan Patrick Hopson
v.
State of Alabama

          Appeal from Lee Circuit Court (CC-17-768)

          WINDOM, PRESIDING JUDGE.

         Bryan Patrick Hopson appeals his convictions for second-degree assault, a violation of § 13A-6-21(a)(3), Ala. Code 1975; leaving the scene of an accident, a violation of § 32-10-1, Ala. Code 1975; two counts of attempting to elude a law- enforcement officer, violations of § 13A-10-52(b), Ala. Code 1975; third-degree assault, a violation of § 13A-6-22(a)(2), Ala. Code 1975; reckless endangerment, a violation of § 13A-6-24, Ala. Code 1975; and reckless driving, a violation of § 32-5A-190, Ala. Code 1975. Hopson was sentenced as a habitual felony offender to 17 years in prison for his conviction of second-degree assault, to 10 years in prison for his conviction of leaving the scene of an accident, to 15 years in prison for his convictions of attempting to elude, to 1 year in jail for his conviction of third-degree assault, to 1 year in jail for his conviction of reckless endangerment, and to 90 days in jail for his conviction of reckless driving. The sentences for Hopson's convictions of second-degree assault and leaving the scene of an accident were to be served consecutively; all other sentences were to be served concurrently.

         On January 10, 2017, at 10:39 p.m., Deputy David Gamper with the Lee County Sheriff's Department was on patrol when he saw a white Volkswagen Jetta automobile in Opelika matching the description of a vehicle he knew to be driven by Bryan Hopson. Deputy Gamper was familiar with Hopson and was aware that there was an outstanding warrant for Hopson's arrest. After confirming that the vehicle belonged to an individual affiliated with Hopson, Deputy Gamper initiated a traffic stop of the vehicle. The Jetta traveled slowly for approximately one-tenth of a mile before coming to a stop. Deputy Gamper approached the Jetta and asked Hopson, the driver, to step out of the vehicle. Jerrilyn McDonald was a passenger in the vehicle. Instead of complying with Deputy Gamper's command, Hopson drove away. Deputy Gamper returned to his vehicle and pursued Hopson. During the pursuit, Deputy Gamper reached a speed of 136 miles per hour. Hopson often drove on the wrong side of the road, swerving along the way to avoid oncoming vehicles. Spike strips were laid by other law-enforcement officers along Hopson's anticipated route. Despite Hopson's driving over the spike strips and having his tires punctured, Hopson continued to drive at speeds of approximately 50-60 miles per hour. The chase finally ended when the vehicle Hopson was driving struck a vehicle being driven by Hillary Cole. The chase lasted 28 minutes and covered 43 miles over county roads in three counties. A dash-camera video recording of the traffic stop and subsequent pursuit was entered into evidence and published to the jury.

         After the accident, Hopson got out of the vehicle and ran into the woods. A K-9 unit was dispatched to track Hopson. A short time later, Hopson was found asleep in a wooded area near the crash.

         Cole went to the hospital for minor injuries suffered in the collision. McDonald, Hopson's passenger, sustained more significant injuries. McDonald was transported by ambulance to a local hospital. McDonald testified that as a result of the crash she broke her back in two places, fractured her shoulder in three places, broke her femur, and sustained a compound injury to her ankle. McDonald was hospitalized for six days after surgery for her injuries. The insertion of a rod and a metal plate was required to repair her femur. McDonald was not released from care for six months. McDonald testified that as a result of her injuries she cannot "bend down any more because [she] can't get up" and that her ankle is "always going to be messed up." (R. 249.) She stated that she cannot run or jog.

         On appeal, Hopson argues: 1) that the circuit court erred in denying his motions for judgment of acquittal; 2) that his convictions violate principles of double jeopardy; and 3) that the State failed to prove his prior convictions under the Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975 ("the HFOA").

         I.

         Hopson contends that the circuit court erred in denying his motions for judgment of acquittal with respect to his convictions for: a) second-degree assault and b) reckless-endangerment.[1]

         Regarding the sufficiency of the evidence, this Court has held:

"In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr. App. 1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state's evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala. Cr. App.), cert. denied, 387 So.2d 283 (Ala. 1980). The trial court's denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala. Cr. App. 1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala. Cr. App. 1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State."

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993). With these basic principles of law in mind, this Court will review Hopson's specific claims.

         A.

         Hopson argues that the evidence was insufficient to convict him of second-degree assault because the State failed to prove that McDonald suffered "serious physical injury" as a result of the crash. Hopson cites McDonald's statement that her broken back "was not a big deal" and that her back was "just mostly sore." (R. 257.) Hopson also notes that McDonald did not return to see an orthopaedic physician following her surgery and that the State failed to provide medical records substantiating McDonald's injuries.

         Section 13A-6-21(a)(1), Ala. Code 1975, provides that a person commits the crime of assault in the second degree if, with intent to cause serious physical injury to another person, he or she causes serious physical injury to any person. Serious physical injury is defined in § 13A-1-2(14), Ala. Code, as "[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." (Emphasis added.)

         In Hunter v. State, 866 So.2d 1177 (Ala.Crim.App.2003), this Court discussed "serious and protracted disfigurement" in relation to the proof of serious physical injury in an assault case, and we noted that "protracted" is defined as "'prolong[ed] in time or space.'" Id. at 1179 (quoting Merriam-Webster's Collegiate Dictionary (10th ed. 1999)). Furthermore, although a medical expert's testimony about the victim's injuries may be helpful, such evidence is not necessary to prove that a victim has suffered "serious physical injury." See James v. State, 654 So.2d 59, 60 (Ala.Crim.App.1994). A layman may generally testify as to his own bodily condition. Charles W. Gamble, McElroy's Alabama Evidence, § 128.10(4) (6th ed. 2009).

         The State presented evidence indicating that as a result of the crash McDonald suffered a broken femur, sustained injuries to her back, fractured her shoulder in three places, and sustained a compound injury to her ankle. She required surgery to repair her femur and was hospitalized for six days. To repair her femur, a metal rod and plate were placed inside her leg; McDonald testified that the rod is intended to be permanent. McDonald was under a doctor's care for six months. As a result of her injuries, McDonald has limited mobility and cannot run or jog. McDonald testified that her ankle is "always going to be messed up." (R. 249.)

         The State's evidence was sufficient for the jury to have reasonably concluded that McDonald had suffered a protracted impairment of her health. Therefore, McDonald suffered "serious physical injury" as defined in § 13A-1-2(14), and the circuit court properly denied Hopson's motion for a judgment of acquittal as to the count for second-degree assault. See Ex parte Marlowe, 854 So.2d 1189, 1193 (Ala. 2003) (adopting this Court's shift from the more stringent definition of "serious physical injury"); see also Glass v. State, 671 So.2d 114, 120 (Ala.Crim.App.1995), overruled on other grounds by Ex parte Gentry, 698 So.2d 916 (Ala. 1996) (holding that the victim had suffered a "protracted impairment of health" where, as a result of the assault, she suffered severe sinus headaches, a deviated septum, additional sinus problems, and pain in her jaw when she chewed); Jones v. State, 620 So.2d 129, 131 (Ala.Crim.App.1993) (holding that the victim had suffered a "protracted impairment of health" where he was hospitalized for a total of 21 days on 2 separate occasions, he had received treatment for several months, and he still had a bullet in his arm and a metal plate in his leg); Thomas v. State, 418 So.2d 964, 965-66 (Ala.Crim.App.1982) (holding that, although a medical expert testified that the victim's wounds were superficial, the victim's testimony about her recurring pain and suffering from her wounds and her exhibition of her scars to the jury were sufficient to support the jury's determination that she had suffered serious physical injury). To the extent there was conflicting evidence regarding the severity of McDonald's injuries, the conflicting evidence merely created a question for the jury. See Waddle v. State, 473 So.2d 580, 582 (Ala.Crim.App.1985) ("[W]e have held that, where there is a conflict in the evidence, the inferences to be drawn from the evidence, the weight of the evidence, and the credibility of the witnesses are all questions for the jury." (citations omitted)). Therefore, this issue does not entitle Hopson to any relief.

         B.

         Hopson contends that the evidence was insufficient to sustain his conviction for reckless endangerment. According to Hopson, his actions did not endanger Deputy Gamper; rather, Deputy Gamper "was only endangered (if at all) because Gamper elected to initiate the chase and continue it." (Gamper's brief, at 52.)

         Count 7 of the indictment against Hopson charged as follows:

"The Grand Jury of Lee County charges that before the finding of this indictment, Bryan Patrick Hopson, whose name is otherwise unknown to the Grand Jury, did on or about January 10, 2017, reckless[ly] engage in conduct, to-wit: driving at [a] high rate of speed and leading law enforcement in a car chase, which created a substantial risk of serious physical injury to another person, to-wit: Deputy David Gamper, in violation of § 13A-6-24 of the Code of Alabama, against the peace and dignity of the State of Alabama."

(C. 26.)

         Under § 13A-6-24, a person commits reckless endangerment when he or she "recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." The Commentary to § 13A-6-24 clarifies that the statute "does not require any particular person to be actually placed in danger, but deals with potential risks, as well as cases where a specific person actually is within the area of danger."

         In this case, evidence was presented indicating that Hopson chose to speed off during the traffic stop and that the ensuing chase lasted 28 minutes, during which the vehicles traveled 43 miles at speeds that exceeded 100 miles per hour. Deputy Gamper's pursuit of Hopson at those speeds created a substantial risk of serious physical injury to him. Thus, the evidence was sufficient to sustain Hopson's reckless-endangerment conviction. That Deputy Gamper elected to give pursuit, which was done in the course of his duties as a law- enforcement officer, is irrelevant. Therefore, this issue does not entitle Hopson to any relief.

         II.

         Having addressed Hopson's claims regarding the sufficiency of the evidence, this Court turns to Hopson's argument that some of his convictions violate double-jeopardy principles.

         The Fifth Amendment to the United States Constitution protects a criminal defendant from being twice put in jeopardy for the same offense. "The Fifth Amendment's Double Jeopardy Clause protects against a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." Woods v. State, 709 So.2d 1340, 1342 (Ala.Crim.App.1997) (citing Meyer v. State, 575 So.2d 1212, 1217 (Ala.Crim.App.1990), and North Carolina v. Pearce, 395 U.S. 711 (1969)). Hopson's claims implicate the Clause's third protection -- prohibiting multiple punishments for the same offense.

         A.

         Hopson argues that his convictions for reckless endangerment and reckless driving violate double-jeopardy principles because, he says, reckless driving is a lesser-included offense of reckless endangerment.

         Because the offenses of reckless endangerment and reckless driving are defined in distinct statutes, the test announced in Blockburger v. United States, 284 U.S. 299, 304 (1932), is appropriate for this Court's analysis:

"In Blockburger v. United States, 284 U.S. 299, 304 (1932), the United States Supreme Court held that 'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.' The Blockburger test is a two-pronged test. First, 'the threshold inquiry under Blockburger is whether the alleged statutory violations arise from "the same act or transaction."' State v. Watkins, 362 S.W.3d 530, 545 (Tenn. 2012). See also State v. Armendariz, 140 N.M. 182, 188, 141 P.3d 526, 532 (2006) ('The first part of the test requires the determination of whether the conduct underlying the offenses is unitary.'); R.L.G., Jr. v. State, 712 So.2d 348, 359 (Ala.Crim.App.1997) ('Before the double jeopardy prohibition is triggered ... it must appear ... that the crimes arose out of the same act or transaction.' (citations omitted)), aff'd, 712 So.2d 372 (Ala. 1998); and State v. Thompson, 197 Conn. 67, 72, 495 A.2d 1054, 1058 (1985) ('An analysis of the Blockburger test involves a threshold determination of whether the offenses arose out of the 'same act or transaction,' and a substantive analysis of whether they contain distinct elements.'). The Double Jeopardy Clause does not operate to prohibit prosecution, conviction, and punishment in a single trial for discrete acts of the same offense. See Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991). Thus, whether a defendant's conduct constitutes the same act or transaction 'does not determine whether there is a double jeopardy violation; rather it determines if there could be a violation.' State v. Schoonover, 281 Kan. 453');">281 Kan. 453, 467, 133 P.3d 48, 62 (2006).
"Second, if the offenses did arise from the same act or transaction, then it must be determined whether each offense requires proof of an additional fact which the other does not, i.e., whether the two offenses are the 'same' for double-jeopardy purposes. '[A]pplication of the test focuses on the statutory elements of the offense,' Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975), and is a rule of statutory construction based on the assumption that a legislature 'ordinarily does not intend to punish the same offense under two different statutes.' Whalen v. United States, 445 U.S. 684, 692 (1980). See also Rutledge v. United States, 517 U.S. 292, 297 (1996) ('[We presume that "where two statutory provisions proscribe the 'same offense, '" a legislature does not intend to impose two punishments for that offense.') (quoting Whalen, 445 U.S. at 692). It is well settled 'that a lesser included and ...

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