The opinion
Rel: June 28, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
_________________________
CR-2023-0108
_________________________
Christopher Denell Calloway
v.
State of Alabama
Appeal from Tuscaloosa Circuit Court
(CC-17-1918.01)
On Application for Rehearing
MINOR, Judge.
The opinion issued by this Court on March 22, 2024, is withdrawn
and the following is substituted therefor.
In this appeal, Christopher Denell Calloway asks us to determine
whether the State presented sufficient evidence of value of the stolen
CR-2023-0108
property to support his conviction for first-degree receiving stolen
property, see § 13A-8-17, Ala. Code 1975. Calloway also challenges his
conviction for first-degree robbery, see § 13A-8-41, Ala. Code 1975, and
his resulting sentence of life imprisonment. We affirm Calloway's
conviction for first-degree robbery and his resulting sentence. Because
the State presented no evidence of value of the stolen property, however,
we reverse Calloway's conviction and sentence for first-degree receiving
stolen property.
FACTS AND PROCEDURAL HISTORY
On the afternoon of December 28, 2016, Calloway and his
codefendant, Stephanie Robinson, collided the Chevrolet Sonic
automobile Calloway was driving into the back of Alice Barnette's
Chevrolet Traverse sport-utility vehicle while Barnette was stopped at a
red light on McFarland Boulevard in Tuscaloosa.
After the collision, Calloway approached the driver's side door of
Barnette's vehicle, opened it, and asked Barnette if she was okay.
Barnette told Calloway that she needed her cell phone, to which Calloway
stated that he had called 911. At that time, Robinson approached the
passenger side door of Barnette's vehicle. Calloway stated, "[T]hat's my
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wife, she's pregnant, do you mind if she sits down?" (R. 165-66), to which
Barnette said that she did not. Robinson then gathered the items that
had fallen onto the floorboard, put those items in Barnette's purse, and
put the purse under Robinson's arm. Calloway told Barnette to get out of
the vehicle, but Barnette refused to do so. Calloway then stated, "I'm not
going back to F'ing jail," (R. 172), pulled out a gun, hit Barnette on the
back of the head, and threw her to the ground. Calloway and Robinson
then drove off in Barnette's vehicle. Calloway and Robinson were later
apprehended in Mississippi.
Investigator Jedediah Kind, with the Tuscaloosa Police
Department, took custody of the 2012 Chevrolet Sonic that Calloway and
Robinson had been driving before the collision and ran its vehicle-
identification number. Investigator Kind found that the vehicle belonged
to Mathies Porter, a resident of South Carolina, and that he had reported
the vehicle stolen earlier that month.
Porter testified that on December 11, he saw a female, whom he
only knew as "Stephanie," (R. 268), and an unknown male walking
toward a gas station. Porter picked them up and took them to the gas
station. While there, "Stephanie" or Robinson stole several cases of beer.
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CR-2023-0108
Robinson jumped in the vehicle and told Porter, "[L]et's go, let's go, let's
go" (R. 270), but Porter told Robinson to take the beer back inside. When
Robinson refused to do so, Porter took a case of beer back inside. While
Porter was inside, Robinson jumped in the driver's seat and she, along
with the male, who had not left the vehicle, drove off.
Porter testified that he had not seen his vehicle, which he described
as "a little old four-cylinder five-speed, [that] didn't burn no gas" (R. 271),
until the current robbery in Tuscaloosa. After his recollection was
refreshed with a police report he had made after the vehicle was stolen,
Porter recalled that he reported to police that a black male named "Chris"
had stolen his Chevrolet Sonic. (R. 275-77.) Porter also made an in-court
identification of Calloway. 1
After the State's case-in-chief, Calloway moved for a judgment of
acquittal, arguing that "[t]he State[ ] failed to reach their burden and the
elements required to prove robbery first degree and receiving stolen
property first degree." (R. 325.) The circuit court denied Calloway's
1Investigator Preston Grammer, with the Tuscaloosa Police
Department, obtained a warrant to secure Calloway's DNA, which he did.
Ellas Aldrick, employed by the Alabama Department of Forensic
Sciences, analyzed that DNA and determined that it matched the DNA
profile on a cigarette butt and a toboggan hat found in the stolen vehicle.
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motion. At the close of all the evidence, Calloway renewed his motion for
a judgment of acquittal, which was again denied. This appeal followed.
I. CALLOWAY'S CONVICTION FOR FIRST-DEGREE RECEIVING
STOLEN PROPERTY
Calloway argues that the State failed to produce sufficient evidence
to support his conviction for first-degree receiving stolen property as to
the Chevrolet Sonic because, he says, "[the State] did not present any
evidence establishing the value of the property at issue." (Calloway's
brief, p. 14.) We agree.
" ' " ' "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
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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)." ' "
Caver v. State, [Ms. CR-21-0333, Dec. 16, 2022] ___ So. 3d ___, ___ (Ala.
Crim. App. 2022).
Section 13A-8-17(a), Ala. Code 1975, provides: "Receiving stolen
property which exceeds two thousand five hundred dollars ($2,500) in
value constitutes receiving stolen property in the first degree." Section
13A-8-1(15), Ala. Code 1975, defines "value" as "[t]he market value of the
property at the time and place of the criminal act."
"A judgment of conviction for buying, receiving, or
concealing stolen property will be reversed absent proof of the
value of the property. Curtis v. State, 44 Ala. App. 335, 208
So. 2d 245; Padgett v. State, 44 Ala. App. 548, 216 So.2d 187.
"One convicted of buying, receiving, or concealing stolen
property is punished as if he had stolen it. Title 14, Section
338, Code of Alabama 1940. Therefore, the value of the
property must be proven in order to determine whether a
convicted defendant should be punished for grand or petit
larceny.
"As stated by Chief Justice Tyson for the Supreme
Court of Alabama in Booker v. State, 151 Ala. 97, 44 So. 56
(1907):
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" 'There was no proof of the value of the property.
Under the statute the offender must be punished
as if he had stolen it. Proof of value was, therefore,
necessary to a conviction, in order to determine
whether the punishment should be that prescribed
for petit larceny or grand larceny.'
"In the instant case we have carefully searched the record, but
have found no testimony whatsoever as to the value of the
freezer or television set. Therefore, for the reasons stated, the
judgment of conviction is due to be reversed and the cause is
hereby remanded."
Nelson v. State, 56 Ala. App. 209, 211–12, 320 So. 2d 714, 716 (Crim.
App. 1975).
The State presented no admitted evidence of the value of the stolen
Chevrolet Sonic. Although the State pointed out that the index of exhibits
contained in the record shows that Exhibit 56, which reflected that the
Chevrolet Sonic had a value of $8,000, was admitted (C. 106, 222-23), the
index of exhibits does not control over the actual transcript. And the
transcript of the trial does not show that Exhibit 56 was admitted. 2 (R.
2We note that Exhibit 56 was used to refresh Porter's recollection,
but it was not admitted. The State concedes that, if Exhibit 56 was not
admitted, there was insufficient evidence to support Calloway's
conviction for first-degree receiving stolen property. (State's brief, p. 9
("Alternatively, if the police report [Exhibit 56] was not properly received
into evidence, then this Court should reverse Calloway's conviction for
receiving stolen property in the first degree because the State failed to
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CR-2023-0108
275.) Thus, Calloway's conviction for first-degree receiving stolen
property is due to be reversed. See Nelson, supra.
II. CALLOWAY'S CONVICTION FOR FIRST-DEGREE ROBBERY
As for Calloway's conviction for first-degree robbery, Calloway
makes two arguments: (1) that the indictment charging first-degree
robbery was defective because, he says, "the addition of an alternative
element that significantly and erroneously reduced the State's burden
effectively nullified a necessary element of the crime," and (2) that the
present any other evidence proving the value of the stolen vehicle as
required by Section 13A-8-17.").)
On rehearing, the State reverses course and now argues that it did
not have to prove the value of the vehicle. "The general rule is that a
party may not assume inconsistent positions at trial and on appeal, see,
e.g., Ex parte Sharp, 151 So. 3d 329, 337 (Ala. 2009), and we believe that
applies equally to a party assuming inconsistent positions on original
submission and on rehearing in this Court." L.M.L. v. State, [Ms. CR-20-
0157, Aug. 5, 2022] ___ So. 3d ___, ___ (Ala. Crim. App. 2022) (plurality
opinion on application for rehearing). Even if the State had not taken
inconsistent positions, however, we still could not consider its arguments
on rehearing. See, e.g., Water Works & Sewer Bd. of City of Selma v.
Randolph, 833 So. 2d 604, 608-09 (Ala. 2002) (" ' "We cannot sanction the
practice of bringing up new questions for the first time in applications for
rehearing." ' … We are constrained to deny the application. The question
of the effect of the portion of the statute on which Randolph relies for the
first time on application for rehearing on entities such as The Water
Works and Sewer Board of the City of Selma will have to await another
day.").
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circuit court erred by granting the State's requested jury instruction
because, he says, "it improperly led the jury to believe that it was
irrelevant whether Calloway actually had a gun." (Calloway's brief, p. ii.)
Neither issue, however, is preserved for appellate review.
As for Calloway's first argument, the record shows that Calloway
did not object to the indictment. See Calhoun v. State, 932 So. 2d 923,
936 (Ala. Crim. App. 2005); and Rules 15.2(a) and (c), Ala. R. Crim. P.
Thus, Calloway is due no relief.
As for Calloway's second argument, during the charge conference,
the State requested that the circuit court charge the jury that "[I]t is not
necessary to prove that an accused person displayed a gun during a
robbery or that he actually had a gun in his possession in order to sustain
a conviction for robbery in the first degree." (C. 65, R. 373.) In response,
Calloway argued: "We just want to give the pattern [jury instruction]."
(R. 373.)
Based on that, we cannot say that Calloway sufficiently preserved
his argument that the circuit court's jury instruction was misleading.
" 'Review 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
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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.1994)."
Ex parte Coulliette, 857 So. 2d 793, 794-95 (Ala. 2003). Thus, Calloway
is due no relief.
CONCLUSION
For these reasons, we reverse Calloway's conviction and sentence
for first-degree receiving stolen property and remand this case to the
circuit court for that court to set aside that conviction and sentence. We
affirm Calloway's conviction of first-degree robbery and his resulting
sentence of life imprisonment.
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APPLICATION OVERRULED; OPINION OF MARCH 22, 2024,
WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART;
REVERSED IN PART; AND REMANDED.
Kellum and Cole, JJ., concur. Windom, P.J., and McCool, J., concur
in the result.
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