Caver v. State

385 So.3d 561

Curtis Walon CAVER

v.STATE of Alabama

CR-21-0333

Court of Criminal Appeals of Alabama.

December 16, 2022

Rehearing Denied February 3, 2023

Certiorari Denied May 12, 2023

Alabama Supreme Court SC-2023-0086

Charles Black and Alisha McKay of Jefferson County Public Defender’s Office, Birmingham, for appellant.

Steve Marshall, att’y gen., and William D. Dill, asst. att’y gen., for appellee.

McCOOL, Judge.

Curtis Walon Caver appeals his conviction for third-degree burglary, a violation of § 13A-7-7, Ala. Code 1975. The trial court sentenced Caver to 10 years’ imprisonment but suspended the sentence and placed Caver on supervised probation for two years.

Facts and Procedural History

In September 2018, Jerrod McCombs owned a mobile home that sat on property adjacent to the property on which his sister lives. McCombs was not living in the mobile home at that time but, instead, "was living at [his] sister’s house because [he] was currently out of work" and "was also doing work on [his] home." (R. 99.) The evidence presented at trial did not indicate how long McCombs had been living with his sister, but his "stuff’ was "still in [his] house." (Id.) While living with his sister, McCombs "had the utilities cut off at [his] property" so that he could "conserve money." (Id.)

On the morning of September 6, 2018, McCombs was at his sister’s house when he noticed a car sitting outside the horse stables that are next to his and his sister’s properties. McCombs walked onto his sister’s porch and watched the driver, whom McCombs identified at trial as Caver, "sit there for about 30 minutes just kind of staring into the horse stable property." (R. 100.) When Caver left the horse stables, he stopped to ask McCombs "if there was anybody at the horse stables" because he had been "told … about a job opportunity" there. (R. 101.) McCombs told Caver that the horse stables were "not doing much business" at that time and that he did not think the owners were hiring, and Caver said that he would "check back later" and then drove away. (Id.) Regarding what occurred next, McCombs testified:

"Q. Okay. And so did anything else happen that morning? And if so, how long after?

"A. Approximately anywhere from 45 minutes to an hour later I’m walking through my sister’s house. And I start hearing the dogs barking towards the direction of my house.

"….

"Q. What did you do when you heard them barking?

"A. I went ahead and grabbed my pistol because I kind of had an odd experience earlier in the morning. So I walked down the field, and I see [Caver’s] car setting [sic] there in my driveway. He had pulled it up far enough that you couldn’t directly see it off my sister’s front porch. ….

"….

"Q. What did you do when you saw [Caver’s] car in front of your house?

"A. When I saw it, I immediately looked in to see if anybody was in the car, which there wasn’t. I then kind of surveilled the property itself and couldn’t find anybody. So then I walked up to my front steps and was at the top of my steps reaching for my door, and I looked through my window and -

"Q. Okay. I want to break that down. When you see - when you look at your home, the window, where did that window look into?

"A. It looks into my den. But it’s a mobile home, so it’s kind of a larger window.

"Q. And so when you looked into that window, what are you seeing?

"A. From the steps, you’re looking at the far wall of the den and my bedroom door.

"Q. Okay. Are you able to go into the home, or do you go into the home at that point?

"A. At that moment, I did not.

"Q. Okay. And I want to ask is your house or your home, was it locked or unlocked?

"A. It was unlocked because we live in the middle of nowhere.

"Q. Okay. And as you’re going to open the door, what did you see?

"A. I see [Caver] going through a box of stuff in my bedroom.

"Q. You said a box of stuff. Was there a bunch of stuff in boxes at this point?

"A. Yes. My previous job prior to that was at a cell phone repair place. And I was in a program with Samsung, so I had, like, a lot of old cell phones and cell phone parts and different cellular gadgets kind of in boxes in there.

"Q. What happened when you saw [Caver] in your bedroom going through that back [sic]?

"A. I started to open the door. And at that point, he heard me, and he jumped back and closed the bedroom. So at that point, I take a few steps back from the steps so I can get to a point to where I can see if he comes out the back door or the. front door. And at that point, I called 911.

"Q. Okay. Did [Caver] ever come out of your house?

"A. Yes, After a few minutes, he walks out. And at that point, I’ve already got him at gunpoint. And he begins screaming, I’m not stealing anything, I’m not stealing anything.’ His words, ‘I was just taking a shit.’

"….

"Q. Can you explain to us kind of where you’re positioned and where he is positioned in terms of the vehicle?

"A. He’s positioned between the vehicle and my house. And I’ve kind of got myself positioned to the back corner of his vehicle. Just in case he did have some sort of weapon, I had some sort of cover.

"Q. And kind of after everything was over and he was taken by police, did you find anything by his vehicle?

"A. I did. After they towed his vehicle, I found one of my knives laying [sic] there.

"Q. You said one of yours - where was that before it was by the vehicle?

"A. It was in my house in my room.

"….

"Q. After this happened, … how did your home look on the inside?

"A. After doing a walk-through, [Caver] had made piles of my stuff on my bed that were - I’d say about two or three different piles laying [sic] there.

"….

"Q. When you were speaking with [Caver] kind of 45 minutes prior at your sister’s house, did you ever give him permission to go into your home?

"A. No."

(R. 102-11.)

On cross-examination, McCombs conceded that his testimony was more detailed than the information he had provided during his 911 call, to the responding officer, and in his written statement. Specifically, McCombs testified that he had not previously mentioned that he had seen Caver "rifling through a box of [his] belongings" (R. 116), that "Caver saw [him]" looking through the window (R. 117), that he had found his knife where Caver’s car had been sitting, or that Caver had made "piles of [his] things on [the] bed." (R. 119.)

At the close of the State’s evidence, Caver moved for a judgment of acquittal, arguing that the State had not proven a prima facie case of third-degree burglary. The trial court denied that motion and then proceeded with the charge conference, where the following colloquy occurred:

"THE COURT: So let’s go over [Caver’s] requested jury charges. …

"….

"THE COURT: [Caver’s] Requested Charge No. 2, evidence has been introduced in this case for the purpose of impeaching certain witnesses and to discredit - where does that come in?

"[THE STATE]: Judge, the State’s argument is that no one was impeached, There was never any impeachment done. Refreshing recollection was done but never impeachment.

"THE COURT: There was never any impeachment testimony presented at all.

"[DEFENSE COUNSEL]: Judge, if I may respond?

"THE COURT: Yes, ma’am.

"[DEFENSE COUNSEL]: A person may be impeached with what they have said before. They may also be impeached -

"THE COURT: Describe for me the circumstances in this case. I know what impeachment is. Describe for me the circumstances for which you’re referencing in this case.

"[DEFENSE COUNSEL]: Yes, sir. McCombs testified today that he saw Caver rifling through a box of things in his home, and he also testified that he saw Caver make - see him. And those are the things to which he did not speak when he spoke to the 911 operator, when he spoke to the responding officer, or when he wrote his written statement. So his failure to state those details and that information, that incredibly incriminating information, prior to today in court.

"THE COURT: Okay. That’s not impeachment. That is where the jury can determine credibility of the witness, whether they’re telling the truth or not. And I completely cover that in my credibility-of-witness statement.

"[DEFENSE COUNSEL]: Understood,

"THE COURT: So that is denied. Your exception is noted."

(R. 131-33.) Caver was subsequently convicted of third-degree burglary and thereafter filed a timely notice of appeal.

Discussion

On appeal, Caver raises two claims that, he says, require reversal of his conviction. We address each claim in turn.¹

I.

[1–4] Caver argues that the trial court erred by denying his motion for a judgment of acquittal. In support of that argument, Caver contends that, in two respects, the State’s evidence was not sufficient to sustain a conviction for third-degree burglary.

" ‘ " 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 aconviction 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

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