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Appeal
from Jefferson Circuit Court (CC-17-1672; CC-17-1673;
CC-17-1674; and CC-17-1675).
Christopher
H. Daniel, Birmingham, for appellant.
Steve
Marshall, atty. gen., and Michael A. Nunnelley, asst. atty.
gen., for appellee.
KELLUM,
Judge.
Manuel
Ali Towns was convicted of one count of robbery in the first
degree, see § 13A-8-41(a)(1), Ala. Code 1975, one count
of kidnapping in the first degree, see § 13A-6-43(a)(3),
Ala. Code 1975, and two counts of fraudulent use of a credit
or debit card, see § 13A-9-14(b)(1), Ala. Code 1975. He
was sentenced, as a habitual offender with seven prior felony
convictions, to life imprisonment without the possibility of
parole for the robbery conviction and for the kidnapping
conviction and to 15 years' imprisonment for each of the
fraudulent-use-of-a-credit-or-debit-card convictions.
I.
Towns
contends that the trial court erred in denying his motion for
a new trial because, he says, the evidence was insufficient
to sustain his convictions for robbery and kidnapping and
because, he says, the verdicts finding him guilty of those
offenses were against the great weight of the
evidence.[1] Specifically, as to both his
sufficiency and weight-of-the-evidence arguments, Towns
contends that the victim's identification of him as the
perpetrator was unreliable in light of the circumstances of
the crimes, her prior inconsistent
Page 978
statements, and the testimony of his expert on eyewitness
identification.
The
evidence adduced at trial indicated the following. At
approximately 10:00 p.m. the night of March 14, 2017,
Brittany Diggs was walking from her Nissan automobile to her
apartment when she was approached by a man brandishing a gun
who demanded "anything that [she had] that's
valuable." (R. 377.) Diggs said that the man was wearing
jeans and a striped hoodie. In both a pretrial photographic
lineup and at trial, Diggs identified Towns as the man who
accosted her that night. When Diggs informed Towns that the
only thing she had of value was her cellular telephone, Towns
forced Diggs to drive him around Birmingham in her vehicle to
help him rob other people. After two failed robbery attempts,
Towns ordered Diggs to pull over, at which point he forced
Diggs into the trunk of her vehicle. Towns then began
driving. At some point while Diggs was in the trunk, Towns
discovered Diggs's wallet in the passenger compartment of
the vehicle and asked Diggs for the personal identification
number ("PIN") associated with her debit card,
which Diggs gave him.
According
to Diggs, Towns stopped a total of three times while she was
in the trunk, each time getting out of the vehicle and then
returning. After one stop, Towns told her that the PIN number
did not work, and after another stop, Towns told her that he
had obtained $80. Before the third stop, Diggs said, Towns
told her that if the PIN number did not work, he would rape
her and kill her. Diggs testified that the whole time she was
in the trunk, she was trying to find a way to escape, and
that, just before the third stop, she was able to find the
trunk latch using the backlight on her insulin pump. Diggs
waited, and when Towns started driving away after the third
stop, Diggs used the latch and jumped out of the trunk. She
immediately ran inside the gasoline station/convenience store
where they had stopped and informed the clerk, Yosef Alsabah,
that she needed help.
Alsabah
testified that he was working at the gasoline
station/convenience store located at 1800 Bessemer Road the
night of March 14, 2017, when, at approximately 11:30 p.m., a
man entered the store and tried to use the automated teller
machine ("the ATM"). Alsabah positively identified
Towns as the man who had entered the store. Alsabah testified
that he tried to help Towns use the ATM but that Towns was
unable to withdraw any money. According to Alsabah, Towns
left the store briefly but then came back inside the store
and tried to use the ATM a second time, again without
success. As Towns was driving away, Alsabah said, he saw
Diggs jump out of the trunk of the vehicle Towns was driving
and run toward the store. He allowed Diggs into the enclosed
area behind the counter for her safety and telephoned
emergency 911. Diggs spoke with the 911 dispatcher and police
responded to the scene.
The
State introduced into evidence surveillance video from the
store at which Diggs escaped and from another gasoline
station/convenience store located at 2301 Ensley Avenue, as
well as the recording of the 911 call. Testimony from James
Vildibill, a patrol officer with the Birmingham Police
Department, indicated that, the night of the crimes, $102.80
had been withdrawn from Diggs's bank account using an ATM
located at 1801 Avenue V and $82.80 had been withdrawn from
Diggs's bank account using an ATM located at 2301 Ensley
Avenue. The State presented evidence indicating that
Diggs's vehicle ...