Perry v. State
Perry v. State
Opinion
The appellant was indicted for the offenses of burglary in the first degree, rape in the first degree, and sodomy in the first degree. He was convicted of rape in the first degree and sodomy in the first degree, but was found not guilty of the charge of burglary in the first degree. He was sentenced, pursuant to the Habitual Felony Offender Act, to life without parole on both convictions.
"[DEFENSE COUNSEL]: How many times, [victim's daughter], have you talked to the people downstairs or the prosecutor about what you were going to testify to? Have you practiced it?
"[PROSECUTOR]: I object to the term 'practice'.
"THE COURT: Sustained. Rephrase your question.
"[DEFENSE COUNSEL]: How many times have you talked to someone about this case other than your mom?
"A: Once.
"Q: Pardon me?
"A: Once.
"Q: Have you talked to anybody today?
"A: My mom."
The appellant argues that the trial court's limitation of his cross-examination, by not allowing him to use the phrase "practice," prejudiced him by causing him to be unable to demonstrate the witness's bias or prejudice or to impeach the witness's credibility. The appellant's argument is without merit; moreover, because of the failure to make an offer of proof as to the expected testimony of the witness, this issue is not preserved for review. *Page 875 Baker v. State,
Moreover, the jury's verdict finding the appellant not guilty of burglary in the first degree, but guilty of rape and sodomy in the first degree, are not mutually exclusive. The jury could have reasonably found that the appellant did not break and enter the victim's home when he committed the offenses of rape and sodomy. See Grikis v. State,
During the trial, the appellant took the stand and testified on direct examination as follows:
"[DEFENSE COUNSEL]: Don't you have a conviction for — I believe you were — I'm not sure about the Illinois thing — forgery and theft of property?
"A: I was convicted on the time I'm serving now, a ten-year sentence for receiving stolen property. Well, I pled guilty to receiving stolen property and in Illinois, about ten years ago, when I was about 18 years old, I had a theft charge.
"Q: And you were charged with some type of forgery, weren't you, up there?
"A: Well, at first they had charged me with forgery because I had a checking account and I had written some checks —
"[PROSECUTOR]: Judge, I'm going to object to the substance of his testimony.
"THE COURT: Sustained.
"[DEFENSE COUNSEL]: Well, Dwight, the point I'm trying to make is the fact as I have told you, there are two certified copies of convictions from Illinois from years ago.
"A: Uh-huh.
"Q: And you don't deny you were convicted up there, do you?
"A: No, I don't deny it.
"Q: You pled guilty?
"A: Yes, sir.
"Q: You pled guilty because you were guilty?
"A: Yes, sir.
"Q: You pled guilty to this receiving stolen property out in Bessemer?
"A: Yes, sir.
"Q: Because you were guilty?
"A: Yes, sir."
This court has said that "A defendant's admission is a proper method of proving a prior conviction for purposes of the Habitual Felony Offender Act." Faircloth v. State,
In Parker v. State,
"As to appellant's assertion that he was incapable of performing sexual intercourse, the testimony proffered deals with probabilities and not absolutes. The chances were that the victim would more than likely have contracted herpes, not that she inevitably would have caught the disease. The expert testimony was that the outbreak of herpes did not make it impossible for the appellant to commit the act. Additionally, the absence of semen or hair samples does not necessarily prove that sexual intercourse did not take place. 'Whether or not appellant climaxed is immaterial. Emission is not an element of the offense of rape.' Thomas v. State,
403 So.2d 323 ,325 (Ala.Cr.App. 1981). Where there is evidence of lack of intercourse, as well as evidence of guilt, it is for the jury to sort out the evidence and give it just such weight as they believe it deserves. We will not substitute our decision for that of the jury. Gossett v. State,451 So.2d 437 (Ala.Cr.App. 1984); Barnes v. State,445 So.2d 995 (Ala.Cr.App. 1984); Atwell v. State,432 So.2d 22 (Ala.Cr.App. 1983)." 'Conflicting evidence should be reconciled by the jury, if possible, and if they cannot reconcile it they may base their verdict on that part of the testimony which they consider worthy of credit, and reject that which they deem to be unworthy of belief. . . . Arnold v. State,
33 Ala. App. 146 ,147 ,30 So.2d 587 (1947).'"Jones v. State,
469 So.2d 713 ,717 (Ala.Cr.App. 1985)."
The victim testified that the appellant put his penis into her mouth at knife point. She also testified that his penis penetrated her, while he had the knife in his hand. She testified that he held the knife pressed against her neck. A male commits the crime of rape in the first degree if he "engages in sexual intercourse with a female by forcible compulsion." Section
AFFIRMED.
All the Judges concur.
Reference
- Full Case Name
- Dwight Perry v. State.
- Cited By
- 8 cases
- Status
- Published