from Madison Circuit Court (CC-17-307)
Collier was originally indicted for one count of murder, see
§ 13A-6-2, Ala. Code 1975. Collier was ultimately
convicted of the lesser-included offense of criminally
negligent homicide, see § 13A-6-4, Ala. Code 1975. On
April 20, 2018, he was sentenced to 12 months'
imprisonment; that sentence was split, and he was ordered to
serve 6 months in jail with the remainder of the sentence to
be suspended, with Collier to serve 2 years on supervised
probation. Collier was also ordered to pay a $150 Victims
Compensation Fund assessment, a $750 bail-bond fee, court
costs, and attorney fees. Collier's incarceration was
initially deferred; however, after Collier failed to turn
himself in to law enforcement to begin serving his term of
imprisonment, Collier was arrested. Following a motion from
the State, the court subsequently resentenced Collier on May
17, 2018, to 12 months' imprisonment. That sentence was
split, and he was ordered to serve 11 months'
imprisonment, followed by 2 years' probation.
following evidence was presented at trial. Maricia Foster
testified that on April 17, 2016, she was at the home of her
daughter, Laricia Foster, with Laricia and Laricia's
children. Maricia's other daughter, Leshay, and
Leshay's children were also there. Additionally, Collier,
Collier's brother, and Collier's mother were at
Laricia's house. Collier and Laricia were engaged to be
married. According to Maricia, Collier and Laricia had been
to a birthday party earlier in the day and, when they
returned to the house between 8 and 9 P.M., the couple was
"bickering." (R. 106.) Maricia testified that she
and Laricia were in Laricia's bedroom watching television
when Collier came into the bedroom to inform Laricia that he
was going to take his brother home. Laricia told Collier to
return quickly because Laricia believed Collier always stayed
gone too long.
to Maricia, after Collier had been gone for a while, Laricia
became agitated. When Collier finally did return to the
house, he and Laricia began arguing. Shortly thereafter,
Laricia and Collier went outside on the front porch and
continued arguing. Maricia then heard Laricia call for her
and said "get him off of me." (R. 109.) Maricia
looked out the peephole in the front door and saw that
Collier had Laricia "pinned up" against the front
door. (R. 109.) Maricia went out the back door of the house
and went around to the front of the house. Collier was
holding Laricia's hands up and he had Laricia
"pressed against the door." (R. 110.) Laricia and
Collier eventually moved out into the front yard, still
to Maricia, she heard Laricia say "[O]h, so now
you're going to pull your gun on me." (R. 112.)
Maricia turned and saw Collier and Laricia standing
face-to-face in front of Laricia's car. Maricia stated
that she could see Collier holding a gun behind his back.
Laricia and Collier continued arguing and began
"struggling" with one another. (R. 120.) According
to Maricia, Laricia lost her balance and began to fall on her
back. Collier also began to fall on top of Laricia. Maricia
testified that, as Collier was falling, he pointed the gun at
Laricia and pulled the trigger. Maricia testified that she
began yelling at Collier for shooting Laricia and then
telephoned the police. She stated that, as she was on the
telephone, she saw Collier searching for something, which was
later determined to be the gun, which he had apparently
dropped. Collier ran to the back of Laricia's house with
the gun. Collier later came back to the front of the house
and, according to Maricia, insisted that he did not shoot
Laricia; instead, he said, he had shot the ground. Collier
tried to rouse Laricia and kept saying "no, no,
no," as if in disbelief. (R. 124.) Laricia died as a
result of the gunshot wound.
Valerie Green, a medical examiner for the Alabama Department
of Forensic Sciences ("DFS"), performed the autopsy
on Laricia. Dr. Green testified that Laricia sustained a
gunshot wound from a shot fired at close range. Dr. Green
estimated that the barrel of the gun was less than an inch
from Laricia's body when the gun was fired. The bullet
entered Laricia's left breast and went through her heart,
diaphragm, ribs, liver, and adrenal gland. The bullet exited
Laricia's body through the right side of her lower back.
testified on his own behalf at trial. Collier admitted that
he and Laricia had been arguing. According to Collier, when
Maricia came outside, he went toward the automobile to
retrieve his gun from under the front passenger seat of the
car; he said that he intended to leave Laricia's house to
walk to the store to wait on his ride to pick him up. Collier
testified that he retrieved his gun and closed the car door.
Collier claimed that as he began walking toward the front of
the car and was putting the gun in his waist band, Laricia
began hitting him on the back of his head and then grabbed
his wrist and the gun. Laricia then "fell over the
[car]." (R. 239.) According to Collier, when Laricia
fell, he also fell and, when they hit the ground, the gun
went off. Collier testified that the gun was loaded, did not
have the safety engaged, and had a bullet in the chamber when
it was in the car. Collier maintained that he did not mean to
shoot Laricia. According to Collier, although he panicked and
hid the gun in the backyard, he ultimately told the officers
where the gun was located. Collier did not leave the scene;
he was present when the officers arrived.
both sides rested and the circuit court instructed the jury
on the applicable principles of law, the jury found Collier
guilty of criminally negligent homicide.
Collier claims that there was insufficient evidence to
support his conviction for criminally negligent homicide.
Specifically, he alleges that "an accidental death does
not confer criminal liability on the accused" and, thus,
that his conviction is due to be reversed because the
evidence suggests that Laricia's death was an accident.
(Collier's brief, at 10.)
we question whether Collier's claim challenging the
sufficiency of the evidence was properly preserved for
appellate review. It is well settled that
"'[r]eview on appeal is restricted to questions and
issues properly and timely raised at trial.' Newsome
v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989).
'An issue raised for the first time on appeal is not
subject to appellate review because it has not been properly
preserved and presented.' Pate v. State, 601
So.2d 210, 213 (Ala.Crim.App.1992). '"[T]o preserve
an issue for appellate review, it must be presented to the
trial court by a timely and specific motion setting out the
specific grounds in support thereof."' McKinney
v. State, 654 So.2d 95, 99 (Ala.Crim.App.1995) (citation
omitted). 'The statement of specific grounds of objection
waives all grounds not specified, and the trial court will
not be put in error on grounds not assigned at trial.'
Ex parte Frith, 526 So.2d 880, 882 (Ala. 1987).
'The purpose of requiring a specific objection to
preserve an issue for appellate review is to put the trial
judge on notice of the alleged error, giving an opportunity
to correct it before the case is submitted to the jury.'
Ex parte Works, 640 So.2d 1056, 1058 (Ala.
Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala.
2003). A challenge to the sufficiency of the evidence must be
raised in a motion to exclude, a motion for a judgment of
acquittal, or a motion for a new trial. See Washington v.
State, 555 So.2d 347 (Ala.Crim.App.1989). A motion for a
judgment of acquittal on the charged offense will not
preserve for appellate review a challenge to the sufficiency
of the evidence to support a conviction for a lesser-included
offense. See Ellis v. State, 641 So.2d 333
(Ala.Crim.App.1994); Washington, supra.
Collier raised the sufficiency-of-the-evidence claim in his
motion for a new trial, which would usually be sufficient to
preserve the issue for appeal, the following occurred when
the State rested its case during trial:
"[Defense counsel:] Judge, at this time it's going
to be a rather unusual motion. Defense is going to make a
motion for judgment of acquittal at this time to the offense
of murder. The [defense] will concede that the lesser
included offenses should go to the jury.
"[Defense counsel:] ... The defense will concede that
there is sufficient evidence for the remaining lesser charges
to go to the jury for consideration."
(R. 226.) Defense counsel subsequently stated:
"Certainly I think the reckless and the negligent
elements, there's been sufficient evidence for those for
them at least to consider. We still would contend -- you
know, obviously contend that no crime has occurred. But I
think in good faith I'd have to say that I think that
those charges should go before the jury."
(R. 226-27.) At the conclusion of the presentation of all the
evidence, defense counsel renewed its motion for a judgment
of acquittal. We question whether Collier's apparent
concession during trial that the State had presented
sufficient evidence to warrant a determination from the jury
on criminally negligent homicide would constitute a waiver of
his right to later raise that specific issue in a motion for
a new trial.
even assuming, without deciding, that Collier's
sufficiency-of-the-evidence claim was properly preserved for
appellate review by raising it in his motion for new trial,
Collier is not entitled to relief on that claim because his
claim is meritless.
role of this Court when reviewing a challenge to the
sufficiency of the evidence is well settled:
"'"In determining the sufficiency of the
evidence to sustain a conviction, a reviewing court must
accept as true all evidence introduced by the State, accord
the State all legitimate inferences therefrom, and consider
all evidence in a light most favorable to the
prosecution."' Ballenger v. State, 720
So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth
v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984),
aff'd, 471 So.2d 493 (Ala. 1985). '"The test
used in determining the sufficiency of evidence to sustain a
conviction is whether, viewing the evidence in the light most
favorable to the prosecution, a rational finder of fact could
have found the defendant guilty beyond a reasonable
doubt."' Nunn v. State, 697 So.2d 497, 498
(Ala.Crim.App.1997), quoting O'Neal v. State,
602 So.2d 462, 464 (Ala.Crim.App.1992). '"When there
is legal evidence from which the jury could, by fair
inference, find the defendant guilty, the trial court should
submit [the case] to the jury, and, in such a case, this
court will not disturb the trial court's
decision."' Farrior v. State, 728 So.2d
691, 696 (Ala.Crim.App.1998), quoting Ward v. State,
557 So.2d 848, 850 (Ala.Crim.App.1990). 'The role of
appellate courts is not to say what the facts are. Our role
... is to judge whether the evidence is legally sufficient to
allow submission of an issue for decision [by] the jury.'
Ex parte Bankston, 358 So.2d 1040, 1042 (Ala. 1978).
"'The trial court's denial of a motion for
judgment of acquittal must be reviewed by determining whether
there was legal evidence before the jury at the time the
motion was made from which the jury by fair inference could
find the defendant guilty. Thomas v. State, 363
So.2d 1020 (Ala. Cr. App. 1978). In applying this standard,
this 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). 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 judgment of acquittal does not constitute
error. McConnell v. State, 429 So.2d 662 (Ala. Cr.
Gavin v. State, 891 So.2d 907, 974
(Ala.Crim.App.2003), cert. denied, 891 So.2d 998 (Ala.
2004)(quoting Ward v. State, 610 So.2d
1190, 1191 (Ala.Crim.App.1992)).
13A-6-4(a), Ala. Code 1975, provides: "A person commits
the crime of criminally negligent homicide if he or she
causes the death of another person by criminal
negligence." Section 13A-2-2(4), Ala. Code 1975, defines
"criminal negligence" as follows:
"A person acts with criminal negligence with respect to
a result or to a circumstance which is defined by statute as
an offense when he fails to perceive a substantial and
unjustifiable risk that the result will occur or that the
circumstance exists. The risk must be of such nature and
degree that the failure to perceive it constitutes a gross
deviation from the standard of care that a reasonable person
would observe in the situation."
Jones v. State, 514 So.2d 1060 (Ala.Crim.App.1987),
in which Jones, who had been convicted of murder, argued that
the trial court erred in refusing to charge the jury on
criminally negligent homicide as a lesser-included offense,
this Court stated:
"The only difference between manslaughter under §
13A-6-3(a)(1) and criminally negligent homicide is the
difference between recklessness and criminal negligence.
"'A common denominator in both is that in each
instance the underlying conduct must involve a
"substantial and unjustifiable risk" that a result
or circumstance described in the penal statute will occur or
exists. The reckless offender is aware of the risk and
"consciously disregards" it. On the other hand, the
criminally negligent offender is not aware of the risk
created ("fails to perceive") and, therefore,
cannot be guilty of consciously disregarding it.'
"Commentary to § 13A-2-2, Code of Alabama 1975.
"'The difference between the terms
"recklessly" and "negligently," ... is
one of kind, rather than degree. Each actor creates a risk of
harm. The reckless actor is aware of the risk and disregards
it; the negligent actor is not aware of the risk but should
have been aware of it.'
"C. Torcia, 1 Wharton's Criminal Law,
§ 27 (14th ed. 1978)(emphasis in original).
"'Negligence "is distinguished from acting
purposefully, knowingly, or recklessly in that it does not
involve a state of awareness. It is the case where the actor
creates inadvertently a risk of which he ought to be
aware, considering its nature and degree, the nature and the
purpose of his conduct and the care that would be exercised
by a reasonable person in his situation." Commentary to
"Phelps v. State, 435 So.2d at 164 (emphasis in
" 514 So.2d at 1065.
present case, the following transpired during the State's
cross-examination of Collier:
"[State:] ... [Y]ou know that gun was loaded, right?
"[State:] You know that that gun had one in the chamber,
"[State:] And you knew that gun was cocked, ...