Petition for Writ of Certiorari — McNish v. Alabama

' Supreme Cou

FILE

rt, U.S.

D

03 808 NO 26 2003

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2003

ROSALYN MCNISH,

PETITIONER,

vs.

STATE OF ALABAMA

RESPONDENT.

APPEAL FROM:

SUPREME COURT OF ALABAMA

CASE NO.: 1021220

COURT OF CRIMINAL APPEALS OF ALABAMA

CASE NO.: 98-0654

CIRCUIT COURT OF PIKE COUNTY, ALABAMA

CASE NO.: CC 97-282/283/284/285

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

LARRY C. MOORER

Attorney for Petitioner

107 North Jackson St.

Mobile, AL 36602

(251) 432-0002

QUESTIONS PRESENTED FOR REVIEW

I. WHETHER PETITIONER WAS DENIED THE

RIGHT TO EFFECTIVE ASSISTANCE OF

COUNSEL.

II. WHETHER THERE WAS SUFFICIENT

EVIDENCE TO SUSTAIN THE GUILTY

FINDINGS.

PARTIES

PETITIONER

Rosalyn McNish

RESPONDENT

State of Alabama

-ii-

TABLE OF CONTENTS

Page(s)

Questions Presented for Review .. . i

Parties a a = = o _ e * se e - e a o « ii

Table of Contents ..-+ +--+ -e«« » iii

Table of Cases and Authorities... Vv

Petition For Writ of Certiorari To

the Supreme Court of Alabama ..... 1

Opinions Below. ...+-++-+-+ ++ ++ 1

Jurisdiction eee ene. Ke ee

Constitutional Provisions Involved . . 2

Statement of the Case .....-+-- 3

Reasons for Granting the Writ. . . 4

eS ae ere ae ae es a ee

Certificate of Service. ....--- - 20

Supreme Court of Alabama

August 15, 2003 Certificate

of Judgment. . - - - »- APPENDIX A

Court of Criminal Appeals of

Alabama March 14, 2003 Memorandum

On Remand from.the Alabama

Supreme Court . . + ++ + « = APPENDIX B

Supreme Court of Alabama

February 7, 2003 Opinion. .

Court of Criminal Appeals of

Alabama February 4, 2000

GBARIOR «sss 88 Se ee

-iv-

APPRNDIX C

APPENDIX D

TABLE OF CASES AND AUTHORITIES o

Page(s)

Brown v. State, 663 So.2d. 1028

(Ala.Cr. ADP. 1995). . .« 10, 14

Greer v. State, 563 So.2d. 39

(Ala.Cr.App.19 SPOO) os « 18, 19

Stinson v. State, 631 So.2d. 831

(Ala. ~ 1992) ee a ae 17, 19

Strickland Ve Washington,

466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 C206G)s « ~s 10, 14

LAWS

Fifth Amendment,

U.S. Constitution ....... 3, 4

Fourteenth Amendment,

U.S. Constitution. ....... 3, 4

Sixth Amendment,

U.S. Constitution ....... 2, 4

Title 28, U.S. Code, Section

1254(1) o se * e + a . oJ te a i = 2

-YV=

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2003 .

NO. 2

ROSALYN MCNISH,

Petitioner,

vs.

STATE OF ALABAMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

The Petitioner, Rosalyn McNish,

respectfully prays that a writ of

certiorari issue to review the judgment of

the Alabama Supreme Court entered on

August 15, 2003.

OPINIONS BELOW

The Supreme Court of Alabama entered

its decision on August 15, 2003 denying

1

Petitioner’s Petition for Writ of

Certiorari which sought to set aside her

November 16, 1998 convictions and

sentences. A copy of the appellate -

decisions are printed in Appendixes A, B,

C and D.

JURISDICTION

On August 15, 2003, the Supreme Court

of Alabama entered its decision affirming

the Alabama Court of Criminal Appeals’

March 14, 2003 and February 4, 2000

decisions which denied Petitioner’s appeal

to set aside her November 16, 1998

convictions and sentences. (Appendixes A,

B, C and D). The jurisdiction of this

Court is invoked under Title 28, United

States Code, Section 1254(1). No other

petitioner is involved in this petition.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment

VI, Petitioner’s right to effective

2

assistance of counsel, Amendments V and

XIV, Petitioner’s right to the equal

protection of the law and the right to due

process.

STATEMENT OF THE CASE

On November 16, 1998, Petitioner was

tried by a jury and convicted of two

counts of conspiracy to commit theft of

property and two counts of theft of

property first degree. On December 18,

1998, Petitioner was sentenced to serve

five (5) years in prison for each

conviction, Case Nos. CC 97-282 and CC 97-

283 to run concurrently, and Case Nos. CC

97-284 and CC 97-285 to run concurrently,

but otherwise, consecutively.

The Court of Criminal Appeals

affirmed the convictions and sentences on

February 4, 2000. An application for

Rehearing was filed on February 18, 2000,

and overruled March 17, 2000. A Petition

3

for Writ of Certiorari to the Supreme

Court of Alabama was filed on March 30,

2000, was granted on February 7, 2003, and

the case was remanded to the Criminal

Appeals Court. On March 14, 2003, the

Criminal Appeals Court affirmed the :

convictions and sentences. An Application

for Rehearing was filed on March 28, 2003,

and was overruled on April 4, 2003. A

Petition for Writ of Certiorari to the

Supreme Court of Alabama was filed on

April 18, 2003, and was denied on August

15, 2003. On November 13, 2003,

Petitioner filed this Writ of Certiorari

in the U.S. Supreme Court.

REASONS FOR GRANTING THE WRIT

THE SIXTH AMENDMENT TO THE U.S.

CONSTITUTION GUARANTEES EVERY CRIMINAL

DEFENDANT THE RIGHT TO EFFECTIVE :

ASSISTANCE OF COUNSEL, AND THE FIFTH AND

FOURTEEN AMENDMENTS GUARANTEES EVERY

CITIZEN THE RIGHT NOT TO BE DEPRIVED OF

HER LIBERTY WITHOUT DUE PROCESS AND

GUARANTEES THE EQUAL PROTECTION OF THE

LAW.

RE ESN

|

STATEMENT OF THE FACTS

Attorney Brandon Coots was appointed

to represent Petitioner for the trial and

appeal of this case. On November 14,

1998, when requesting a continuance from

the scheduled November 16, 1998 trial

date, Attorney Coots, inter alia, stated:

",...And my biggest concern is, Your

Honor -- I don’t know if this has,

even, an equitable question in it.

But since I am just beginning, I.

require more time to get ready. I’m

having to do a lot of case law

research, and I’m having to do things

that these other gentlemen probably

aren’t having to do. I’m having to

go back and study up on the Rules of

evidence and such, and I just need

more time.

Also, my client hasn’t even

talked with me. I’ve called her

several times. I’ve left messages.

I need more time to prepare for this

case, Your Honor." (CR. 10).

Petitioner’s motion for continuance

was denied and the trial proceeded two (2)

days later on November 16, 1998.

Willie Joe Brown, one of the alleged

5

victims, testified that he had never met

Petitioner Rosalyn McNish, that she had

never made any promises to him, never

offered him any services, (CR. 161-162),

he never gave her any money, never gave

her any checks, and Petitioner Rosalyn

McNish never made any promises to him

about financial arrangements. (CR. 328).

Stephanie Brown, the wife of Willie

Joe Brown, testified she met Petitioner

Rosalyn McNish once. Ms. Brown stated

Petitioner Rosalyn McNish never made any

representations to her about Financial

Services and never told her where to

invest her money. (CR. 239). She stated

she never gave any checks to Petitioner

Rosalyn McNish, she never conducted any

business through her, and that all the

business was conducted through Demetrius

McNish and not.through Petitioner Rosalyn

McNish. (CR. 252). She further stated

6

arr ee

she did not know Petitioner Rosalyn

McNish’s signature. (CR. 212).

The prosecution offered two checks

into evidence that were payable to

Petitioner Rosalyn McNish, and the

Signature "Rosalyn McNish" appeared on the

back of the checks. The prosecution

presented no evidence that the aforestated

checks were signed by Petitioner Rosalyn

McNish, nor presented any evidence that | |

she had any knowledge of the said checks.

At the conclusion of the prosecution’s

case, Petitioner’s appointed attorney

Coots made a motion for judgment of

acquittal on the grounds that the State

had not proven the case beyond a

reasonable doubt and had not proven venue.

(CR. 270-271). The motion was denied.

Subsequent to the Trial Judge instructing

the jury, Attorney Coots informed the |

Court that he was satisfied with the

7

instructions. (Cr. 411)

Petitioner was convicted of two

counts of conspiracy to commit theft of

property and two counts of theft of

property, list degree. (CR. 422-423). She

was sentenced to serve five (5) years in

prison for each conviction, Case Nos. CC

97-282 and CC 97-283 to run concurrently,

and Case Nos. CC 97-284

and CC 97-285 to run concurrently, but

otherwise, consecutively. (CR. 3321).

Petitioner appealed her convictions and

sentences.

In his brief to the Alabama Court of

Criminal Appeals, Petitioner’s appointed

Counsel Coots, raised the following issues

for review:

1. The Petitioner was denied her

constitutional right to effective

assistance of counsel.

2. Trial, Court erred in not granting

a motion for mistrial due to

contact by a witness of the State

8 ‘

with a member of the jury.

3. The Trial Court erred in not

granting the Petitioner’s motion

for Judgment of Acquittal.

4. The Trial Court erred in not

sustaining the objection of

Counsel as to the chain of

custody of evidence and the

proper predicate being laid prior

to admission of evidence.

5. The Trial Court erred in not

granting a judgment of acquittal

where a fatal variance has

occurred.

6. The Trial Court erred to properly

charge the jury as to the

Defendant’s right to testify.

Subsequent to the Alabama Criminal

Court of Appeals’ February 4, 2000 opinion

which denied Petitioner Rosalyn McNish’s

appeal, Petitioner Rosalyn McNish retained

new counsel to represent her in

furtherance of her appeal.

ARGUMENT

i

PETITIONER WAS DENIED THE RIGHT

TO EFFECTIVE ASSISTANCE OF COUNSEL.

9

As indicated by the Alabama Criminal

Court of Appeals in its February 4, 2000

opinion in this case, to prevail on an

ineffective assistance of counsel clain,

a Petitioner must show that Counsel’s

performance was deficient and that

Counsel’s deficient performance prejudiced

her, citing Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); Brown v. State, 663 So.2d. 1028,

(Ala.Cr.App. 1995).

Attorney Brandon Coots was appointed

to represent Petitioner for the trial and

appeal of this case. On November 14,

1998, when requesting a continuance from

the scheduled November 16, 1998 trial

date, Attorney Coots, inter alia, stated:

",...And my biggest concern is, Your

Honor -- I don’t know if this has,

even, an equitable question in it.

But since I am just beginning, I

require more time to get ready. I’m

having to do a lot of case law

research, and I’m having to do things

10

Ch wf

that these other gentlemen probably

aren’t having to do. I’m having to

go back and study up on the Rules of

evidence and such, and I just need

more time.

Also, my client hasn’t even

talked with me. I’ve called her several

times. I’ve left messages. I need

more time to prepare for this case,

Your Honor."

(CR. 10).

Petitioner’s motion for continuance

was denied and the trial proceeded two (2)

days later on November 16, 1998.

As indicated by Attorney Coots, he

was not prepared to try Petitioner Rosalyn

McNish’s case. As indicated by Attorney

Coots, two (2) days prior to the trial, he

still had never spoken to Petitioner

Rosalyn McNish.

In ruling on the issues set forth by

Attorney Coots in his Appellate Brief for

Petitioner Rosalyn McNish, the Alabama

Court of Criminal Appeals ruled, inter

alia, that;

1. Petitioner failed to state with

11

specificity as to how she received

ineffective assistance of Counsel.

2. Petitioner failed to preserve the

issue of a mistrial allegedly resulting

from a juror speaking to one of the

State’s witnesses.

3. Petitioner failed to preserve the

issue of the admission of canceled checks

into evidence.

4. Petitioner failed to preserve the

issue of an alleged Jury Instruction

pertaining to Petitioner’s right to

testify.

5. Petitioner failed to preserve the

issue of an alleged fatal variance between

the charges and the evidence.

6. Petitioner failed to preserve the

issue of a motion for acquittal._

In addition to the foregoing

deficient performance on the part of

Attorney Coots, Attorney Coots failed to

12

raise the issue in Petitioner Rosalyn

McNish’s appeal that there was

insufficient evidence to sustain the

guilty findings. The Alabama Court of

Criminal Appeals reversed the conspiracy

and theft convictions of Doris McNish in

its February 4, 2000 opinion in this case.

The facts relating to Petitioner Rosalyn

McNish mirror those pertaining to Doris

McNish. A discussion of the similarity of

facts between Doris McNish and Petitioner

Rosalyn McNish is set forth under Argument

II and is specifically incorporated as

part of this issue. The facts clearly

show there was insufficient evidence to

sustain the guilty findings.

As a result of Attorney Coots’

deficient performance in failing to

preserve the issues set forth above for

Appellate Review, and his failure to raise

the issue that there was insufficient

13

evidence to sustain the guilty findings,

Petitioner Rosalyn McNish was

substantially prejudiced, and is entitled

to relief on this claim. Strickland v.

Washington, supra; Brown v. State, supra.

ARGUMENT II -

THERE WAS INSUFFICIENT EVIDENCE TO

SUSTAIN THE GUILTY FINDINGS.

The Alabama Court of Criminal Appeals

reversed the conspiracy and theft

convictions of Doris McNish in its

February 4, 2000 opinion in this case.

The facts relating to Petitioner Rosalyn

McNish mirror those pertaining to Doris

McNish. In reference to Doris McNish, the

Appellate Court states that Mr. Brown

testified that he had met Doris McNish on

two occassions and that they just spoke

and were friendly. He testified that

Doris McNish never made any

representations to him. In reference to

14

Petitioner Rosalyn McNish, Mr. Brown

testified that he had never met Petitioner

Rosalyn McNish, that she had never made

any promises to him, never offered him any

services, (CR. 161-162), he never gave her

any money, never gave her any checks, and

Petitioner Rosalyn McNish never made any

promises to him about financial

arrangements. (CR. 328). The Appellate

Court states that Mrs. Brown testified

that she had never met Doris McNish, that

she had seen her only once in a limousine

with Demetrius when he had come to her

house to see Mr. Brown, and that Doris

McNish never made any representations to

her. In reference to Petitioner Rosalyn

McNish, Mrs. Brown testified she met

Petitioner Rosalyn McNish once, that

Petitioner Rosalyn McNish never made any

representations to her about Financial

Services, never told her where to invest

15

i a ace

her money, (CR. 239), that she never gave

any checks to Petitioner Rosalyn McNish,

never conducted any business through her,

and that all the business was conducted

through Demetrius McNish and not through

Petitioner Rosalyn McNish. (CR. 252).

Mrs. Brown further stated she did not

know Petitioner Rosalyn McNish’s

signature. (CR. 212). The Appellate

Court states that the State presented

seven checks that showed Doris McNish as

the payee and that were signed "Doris

McNish." However, the State did not

present any evidence that Doris McNish

ever had any knowledge of the checks or

that Doris McNish actually signed the

checks. In reference to PetitionerRosalyn

McNish, the prosecution offered two checks

into evidence that were payable to

Petitioner Rosalyn McNish, and the

signature "Rosalyn McNish" appeared on the

16

back of the checks. The prosecution

presented no evidence that the aforestated

checks were signed by Petitioner Rosalyn

McNish, nor presented any evidence that

she had any knowledge of the said checks.

The Appellate Court states that a bank

statement for a savings account owned by

Doris McNish and Petitioner Rosalyn McNish

reflected deposits with dates and amounts

that corresponded to the dates and amounts

on some of the checks that the Browns had

given Demetrius. However, the Appellate

Court concluded that nothing showed Doris

McNish had any knowledge that the money

was being deposited into the account or

that she withdrew any of those funds. _

Therefore, the Appellate Court concluded

that the State did not present sufficient

evidence to support Doris McNish’s theft

and conspiracy convictions, citing Stinson

v. State, 631 So.2d 831 (Ala. 1992);

17

Greer v. State, 563 So.2d 39 (Ala.Cr.App.

1990). Accordingly, the Appellate Court *

reversed Doris McNish’s convictions and

sentences and rendered a judgment in her

favor. In reference to Petitioner Rosalyn

McNish, the same bank statement for a

savings account owned by Doris McNish and

Petitioner Rosalyn McNish alluded to by

the Appellate Court, reflected deposits

with dates and amounts that corresponded

to the dates and amounts on wines Ot the

checks that the Browns had given

Demetrius. However, nothing showed

Petitioner Rosalyn McNish had any

knowledge that the money was being

deposited into the account or that she

withdrew any of those funds. Based on the

foregoing evidence, the jury could not

have reasonably concluded Petitioner

either committed or aided and abetted

Demetrius McNish in committing the charged

18

———eeeeee

offenses. Therefore, as the Appellate

Court concluded in Doris McNish’s appeal,

the State did not present sufficient

evidence to support Petitioner Rosalyn

McNish’s theft and conspiracy convictions.

Stinson v. State, supra; Greer v. State,

supra. Accordingly, as the Appellate

Court reversed Doris McNish’s convictions

and sentences and rendered a judgment in

her favor, Petitioner Rosalyn McNish’s

convictions and sentences are due to be

reversed and a judgment rendered in her

favor.

CONCLUSION

For all the foregoing reasons, and

those related thereto, Petitioner Rosalyn

McNish’s convictions and sentences are due

to be reversed and a judgment rendered in

her favor.

ee lll tet ttre

——_—

LARRY C. MOORER

Attorney for Petitioner

107 North Jackson St.

Mobile, Alabama 36602

(251) 432-0002

CERTIFICATE OF SERVICE

I certify that I have on this 13th day

of November, 2003, served a copy of the

foregoing Brief for Writ of Certiorari

upon the Alabama Attorney General’s

Office, Alabama State House, Criminal

Appeals Division, 11 South Union St.,

Montgomery, AL 36130, by U.S. Mail,

postage prepaid.

———

LARRY C. MOORER

20

ee

August 15, 2003

1021220

Ex parte Rosalyn McNish. PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS (In re: Demetrius Antone McNish and Doris

McNish and Rosalyn McNish v. State of Alabama) (Pikel Circuit Court: Demetrius

Antone McNish #'s (97-246-253, 97-255 thru 267, 97-288 thru 293); Doris McNish

#'s (97-268 thru 281); Rosalyn McNish #'s (97-282 thru 285); Criminal Appeals :

CR-98-0654).

CERTIFICATE OF JUDGMENT

Writ Denied

The above cause having been duly submitted, IT IS CONSIDERED AND

ORDERED that the petition for writ of certiorari is denied.

Writ Denied - No Opinion

HOUSTON, J. - Moore, C.J., and Lyons, Johnstone, and Woodall, JJ., concur.

1 Robert G. Esdale, Sr., as Clerk of the Supreme Court

of Alabama, do hereby certify that the foregoing is

a full, true and correct copy of the instrument(s)

herewith set out as same appear(s) of record in said

Court.

Witness my hand this_15"_day of August 2003

/tr

Court of Criminal Appeals

State of Alabama

Judicial Building, 300 Dexter Avenue

P. 0. Box 301555

Montgomery, AL 36130-1555

RELEAS _

| | |

|

CKY" McMILLAN | | MAR 14.2003 | Lane W. Mann

Judge ; | | Clerk

L COBB } CLERK ' Wanda K. Ivey

~ _W. BASCHAB (ALA) COURT CRIMINAL | Assistant Clerk

IAW (334) 242-4590

I WISE ' Fax (334) 242-4689

MEMORANDUM

On Remand from the Alabama Supreme Court

*R-98-0654 Pike Court CC-97-246, CC-97-247,

CC-97-248, CC-97-249, CC-97-250, CC-97-251,

CC=-97-252, CC-97-253, CC-97-255, CC-97-256,

CC-97-257, CC-97-258, CC-97-259, CC-97-260,

CC-97-261,° CC-97-262, CC-97-263, CC-97-264,

CC-97-265, CC-97-266, CC-97-267, CC-97-288,

CG=$7-269, CC=-97-290, CC-97-291, CC-97-292,

CC-97-293, CC-97-268, CC-97-269, CC-97-270,

CC=-$7-271, CC-97-272, CC-97-273, CC

-97-274,

CG-$7=275, CC-97-276, CC-97-277, <C-97-278,

CC-97-279, CC-97-280, CC-97-281, CC-97-282,

CC-97-283, CC-97-284, and CC-97-

Demetrius Antone McNish, Doris McNish, and

Rosalyn McNish v. State of Alabama

Baschab, Judge.

On February 4, 2000, we

affirmed Demetrius McNish's

convictions and sentences for 13

counts of first-degree theft of

property, 13 counts of conspiracy

to commit first-degree theft of

property, and one count of

second-degree theft of property;

affirmed Rosalyn McNish's

convictions and sentences for two

counts of first-degree theft of

property and two counts of

conspiracy to commit first-degree

theft of property; and reversed and

rendered Doris McNish's

convictions and sentences for

seven counts of first-degree theft

of property and seven counts of

conspiracy to commit first-degree

theft of property. See McNish v.

State, [Ms. CR-98-0654, February

4, 2000] So. 2d (Ala. Crim. App.

2000). On February 7, 2003, the

Alabama Supreme Court reversed

Our judgment affirming. Rosalyn's

convictions and remanded the case

with instructions that this court

"address the merits of Rosalyn's

claim that the evidence was

insufficient to support her

3

ES

convictions." Ex parte McNish,

[Ms. 1991233, February 7, 2003] So.

2d (Ala. 2003).

In our previous opinion, we

noted:

"Rosalyn McNish was

convicted of two counts of

first-degree theft of

property, violations of

§13A8-3, Ala. Code 1975

(cases CC-97-283 and CC-97-

285) ; and two counts of

conspiracy to commit first-

degree theft of property,

violations of §§13A-4-3 and

13A8-3, Ala. Code 1975

(cases CC-97-282 and CC-97-

284). The trial court

sentenced her to serve five

years in prison for each

conviction.

"In June 1995, Willie

Joe Brown, a resident of

Pike County, Alabama, won

$14,000,000 in the Florida

lottery. Shortly

thereafter, . Demetrius

telephoned Mr. Brown's home

and talked to Stephanie

4

0

|

Brown, Mr. Brown's’ wife.

Demetrius told her that he

represented "a lot' of

lottery winners all over the

county and that he thought

he could help Mr. Brown

manage his winnings to

earn more money. Mrs.

Brown spoke to Demetrius

on the telephone on

several occasions. On one

occasion, he told her

that he would be in the

area where they lived and

asked if he could come to

their home. The Browns

agreed, and Demetrius went

to their house on June

29, i999;

i a

Demetrius told the Browns that he

waS a consultant, and he gave them

his business card. He also showed

them newspaper clippings from

when he had run _ for public

office. Mr. Brown testified that

he and Demetrius discussed a

business venture by which Mr. Brown

would give Demetrius money to

purchase discounted Civil

judgments. Mr. Brown agreed to the

venture and arranged for Mrs. Brown

to meet Demetrius’ the following

morning to set up a $50,000 account

for Demetrius and his business,

Executive Services. When Mrs.

Brown arrived at the First

Alabama Bank in Troy, Alabama,

the following morning,

Demetrius was there with his

Sister, Rosalyn. After Mrs. Brown

had written the $50,000 check to

Executive Services, Demetrius

explained that Executive Services

did not have an account at that

bank, but his sister did. Therefore,

he wanted to deposit the money into

Rosalyn's savings account and later

transfer the money to Executive

Services' account. Mrs. Brown

added Rosalyn as a payee, and

Demetrius deposited the check.

On that same day, $27,122.60 was

withdrawn from Rosalyn's account.

The defense introduced a receipt

for a $27,122.60 certified check

dated June 26, 1995, that was made

payable to the Social security

Administration. "Executive

Services' and 'R. McNish' appeared on

the remitter line of the receipt.

Mr. Brown testified that he owed

$21,142.60 to the Social

Security Administration for the

Overpayment of Social Security

benefits and that he had

discussed this debt with

Demetrius.

"The Browns gave Demetrius 14

checks in addition to the initial

$50,000 check.* The total amount of

those checks was $218,400. Either

Mr. Brown or Mrs. Brown identified

their signature on each check.

Both testified that the date,

payee, amount, and memorandum

lines were blank when they gave

those checks to Demetrius. Two of

the checks were payable to Rosalyn

McNish, and the Signature

"Rosalyn McNish! appeared on the

back of the check. Seven of the

checks were made out to Doris

McNish, Demetrius' and Rosalyn's

mother, and the signature 'Doris

McNish' appeared on- the back of

the checks. Four of the checks were

payable to Demetrius McNish, and the

final check was payable to

'Cash.' The signature 'Demetrius

McNish' appeared on the back of

these checks. One of the checks

was dated May 20, 1995. However,

Mrs. Brown testified that neither

she nor her husband had a checking

account before he won the lottery in

June 1995.

7

ES

"The memorandum lines on two

of the checks contained language

indicating that the money was a

loan. However, Mr. Brown denied

that he had agreed _ to loan

Demetrius money to use for

personal and business expenses.

Rather, he testified that the

money from the checks was to be

used solely for purchasing

judgments. Mr. Brown testified

that he never received any judgments

from Demetrius and that Demetrius

did not give him any proceeds

from any judgments. He testified

that he did receive two $1,000

cashier's checks from Demetrius,

but he did not know what the

money was for. Mr. Brown also

received two checks from Demetrius

that were written on Rosalyn's

checking. account and contained

the signature ‘Rosalyn McNish.'

Both checks contained notations on

the memorandum line that they were

loan payments and both were

returned for nonsufficient funds.

Mr. Brown also received two checks

that were written on the account

of Cecilia A. Primm and

contained the notation ‘loan

payment' on the memorandum lines.

However, Mr. Brown testified that he

did not know Cecilia Primm and he had

not loaned her any money. Both

checks were returned because the

account was closed. There was

also testimony that Demetrius.

assisted the Browns in paying off

B | |

existing bills and was involved in

the purchase of their new home and

automobile insurance. However,

the extent of Demetrius'

involvement in these

transactions was not clear.

"ur. Brown telephoned

Demetrius when did not receive

any money from him. He testified

that he called Demetrius three

or four times and left messages

on Demetrius' voice mail. He

also gave

Demetrius the telephone

number for his beeper, which

had a toll-free telephone

number and voice mail.

Nevertheless, Demetrius never

returned his telephone

calls. Mr. Brown then

went to Mobile to find

Demetrius' office. He

found the address where

Demetrius had told him the

business was7~ located, but

there was no such business

there. Instead, he found a

building attached to a hotel

or a motel, but none of the

McNishes worked there. Mr.

Brown also went to Prichard

to look for Demetrius.

While there, he talked with

Doris and told her that

Demetrius wasS going to get

into -trouble over the

checks. According to Brown,

he was talking about’ the

9

Ee

checks written on Rosalyn's

account that had been returned

for nonsufficient funds.

"Mrs. Brown testified

that, although her husband

told her something about

Demetrius using the money

to buy judgments, she was

not familiar with the

terms of the agreement

between him and Demetrius.

Mrs. Brown also testified

that she accompanied

Demetrius to the bank = on

several occasions and _ gave

him checks as her husband

directed.

"* None of the

appellants were charged

with taking the $50,000

from the initial check."

McNish v. State, [Ms. CR-98-0654,

February 4, 2000]--So. 2d (Ala.

Crim. App. 2000) (footnote

omitted).

Rosalyn argues that the State did

not present sufficient evidence to

Support her convictions.

"The theft of property

which exceeds $1,000.00 in

10

value, or property of any

value taken from the

person of another,

constitutes theft of property

in the first degree."

§13A-8-3(a), Ala. Code 1975.

"A person commits the

crime of theft of

property

if he:

(2) Knowingly

obtains by

deception control

over the property

of another, with

intent to deprive

the owner of his

property."

§13A-8-2, Ala.

Code 1975.

12 |

ass ensesenstshesasstesteussteesanssissnmmnmmmme or.

eee

"A person is guilty of

criminal conspiracy if, with

the intent that conduct

constituting an offense be

performed, he agrees with

one or more persons’ to

engage in or cause the

performance of such conduct,

and any one or more of

such persons does an overt

act to effect an objective

of the agreement."

§13A-4-3(a), Ala. Code 1975.

Alabama's accomplice liability

statute provides:

"A person is legally

accountable for the

behavior of another

constituting a criminal

offense ew with the

intent to promote or

assist the commission of

the offense:

"(2)He aids or abets

such other person in

committing the offense...."

§13A-2-23, Ala. Code 1975.

"The words ‘aid and abet'

encompass all assistance by

acts, words oP

encouragement, or

13

Support, or presence,

actual or constructive, to

render assistance should it

become necessary. Wright

(v. State, 494 So. 24d S36

(Ala. Crim. App. 1986)];

Sanders v. State, 423 So.

Za 348 (Ala. Cr. App.

1982). Actual

participation in the crime

need not be proved by

positive testimony to

convict someone of aiding

and abetting. 'The jury is

to determine whether’ the

appellant's participation

exists and the

extent of it from the conduct

of the parties and all the

testimony presented.' Walls

Vv. otate, 3/8 So. 2a I186,

itor (Ala. Cr. App. 18975),

cert. denied, Ex parte Walls,

378 So. 2d (Ala.

1980) . Such facts as the

defendant's presence in

connection with his

companionship, and his

conduct at, before and after

the commission of the act,

are potent circumstances

from which participation

may be inferred."

Henry v. State, 555 So. 2d 768,

769 (Ala. Crim. App. 1989).

"Any word or act

14

contributing to the

commission of a felony,

intended and calculated to

incite or encourage its

accomplishment, whether or not

the one so contributing is

present, brings the

accused within the statute

that makes any person

concerned in the commission

of a felony, directly or

indirectly, a principal.

No particular acts are

necessary to make one an

aider and abettor; the

common enterprise or adventure

may have been entered into on

the spur of the moment

without prearrangement or

participation."

Scott v. State, 374 So. 2d 316,

318-19 (Ala. 1979). And,

"'"twlhere the evidence is

conflicting as to the

defendant's connection as

an accomplice or co~

conspirator, a jury question

is presented.' Sanders v.

State, [423 So. 2d 348 (Ala.

Crim. App. 1982)), cating

Watkins v. State, 357 So. 2d

156, 160 (Ala. Crim. App.

1977), cert. denied, 35/7

So. 2d 161 ( [Ala. 11978)

15

Henry, 555 So. 2d at 770. Also,

"' [i] ntent, being a state

or condition of the mind, is

rarely, if ever, susceptible

of direct or positive proof,

and must usually be inferred

from the facts testified to

by witnesses and the

Circumstances as developed by

the evidence. ' McCord v.

State, 501 So. 2d 520, 528-

529 (Ala. Crim. App. 1986),

quoting Pumphrey v. _ State,

156 Ala. 103, 47

So. 156 (1908).™

French v. State, 687 So. 2d 202,

204 (Ala. Crim. App. 1995), rev'd

on other grounds, 687 So. 2d 205

(Ala. 1996).

"In deciding whether

there is sufficient

evidence to support the

verdict of the jury and the

judgment of the trial

court, the evidence must

be reviewed in the light

most favorable to the

prosecution. Cumbo _—seV.

State, 368 So. 2d 8/1 (Ala.

oe App.. 1978), cert.

denied, 368 So. 2d 8:77

(Ala. 1979). Conflicting

evidence presents a jury

question not subject’ to

review on appeal, provided

16

the state's evidence

establishes a prima _ facie

case. Gunn v. State, 387 So.

24 260 {(Aia@. CE. App.),

cert. denied, 387 So. 2d

283 (Ala. 1980). The

trial court’s denial of

a motion for a judgment

of acquittal must be

reviewed by determining

whether there existed legal

evidence before the jury, at

the time the motion was

made, from which the jury

by fair inference could

have found the appellant

guilty. Thomas v. State,

363 So. 2G iUZU (ALS. CE.

App. 1978). In applying

this standard, the

appellate 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 i339 (Ala. Cr. App.

1983); Thomas v. State.

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 a

judgment of acquittal by

the trial court does not

constitute error. ound V.

State, 283 Ala. 676, 2 SO.

17

2a 843 (1969); Willis v.

State."

Breckenridge v. State, 628 So. 2d

1012, 1018 (Ala. Crim. App. 1993)

wed determining the

sufficiency of the evidence

to sustain the conviction,

this Court must accept as

true the evidence

introduced by the _ State,

accord the State all

legitimate inferences

therefrom, and consider the

evidence in the light most

favorable to

the prosecution.' Faircloth v.

State, 471 So. 2d 485, 489 (Ala.

Cr. App. 1984), affirmed, Ex parte

Faircloth, [471] So. 2d 493 Ria.

L935).

- '"The role of appellate

courts is not to say what

the facts are. Our role,

-.. 1S to judge whether the

evidence is legall

sufficient to allow

Submission of an issue for

decision to the jury." Ex

arte Bankston, 358 So. 2d

O40, 1042 (Ala. 1978).

An appellate court may

interfere with the jury's

verdict only where it

18

reaches "a clear

conclusion that the

finding and judgment are

wrong." Kelly v. State, 273

Ala. 240, 244, i337 3@. £6

326

(1962). ... A verdict on

conflicting evidence is

conclusive on appeal.

Roberson v. State, 162 Ala.

30, 50 So. 345 (1909).

e¢ [W] here there is ample

evidence offered by the

state to support a verdict,

it should not be overturned

even though the evidence

offered by the defendant

a2 in sharp conflict

therewith and presents a

substantial defense."

Fuller v. State, 269 Ala.

Siz, 333, L153) BO. 2a Bae

(1959) . cert. denied,

Fuller v. Alabama, 361 U.S.

$36, GU S. Ct. 2ee, @ de

Ed. 2d 358 (1960).' Granger

[v. State] , 473 So. dd

[idols bee

[(Ala. Crim. App. 1985)].

¢ 'Circumstantial evidence alone

is enough to support a guilty

verdict of the most heinous crime,

provided the jury believes beyond a

reasonable doubt that the accused

is guilty.' White v. State, 294

Ala. -265, 272, 344 sO. £0 6a,

cert. denied, 423 U.S. 951, 96

S.. Ct. 373, 46 ik. 3a. 26 #ee

19

a a

(1975). ‘Circumstantial evidence

is in nowise considered inferior

evidence and is. entitled to the same

weight as direct evidence provided

it points to the guilt of the

accused.' Cochran v. State, 500 So.

7a i161, idii7i7 (Ala. Cr. App.

1984), affirmed in pertinent

part, reversed in part on

other grounds, Ex parte

Cochran, 500 So. mi 1179

(Ala. 1985)."

White v. State, 546 So. 2d 1014,

1017 (Ala. Crim. App. 1989).

Finally,

"' [c] ircumstantial

evidence is not

inferior evidence,

and it will be

given the same

weight as direct

evidence, | ae |}

along with the

other evidence, is

susceptible of a

reasonable

inference pointing

unequivocally to

the defendant's

guilt. Ward Vv.

ace, S97 SO. £G

848 (Ala. Cr. App.

1990). In

reviewing a

conviction based

in whole or in part

20

on

evidence,

to be

whether

might

find

evidence

every

hypothesi

that of

not

evidence

every

the

applied

the

reasonably

that

)

whether

circumstantial

test

is

jury

the

excluded

reasonable

except

guilt;

such

excludes

hypothesis

guilt,

a jury

reasonably

conclude.

State,

B71 (Ala.

1978),

368

(Ala.

So.

"Ward, 610 So.

Lockhart v. State,

reasonable

but

but whether

might

Te)

Cumbo v.

368 So.

Ur.

cert.

tia 36.

2a

App.

denied,

2d 877

Ave)”

£0 at 1191-32.

2d 895,

899 (Ala. Crim. App. 1997)

21

The State presented evidence that

Mr. Brown agreed to give Demetrius

money for the sole purpose of

purchasing discounted civil judgments; that

they agreed that Mrs. Brown would meet

Demetrius at the bank on the morning of

June 26, 1995, to set up a $50,000

account for Demetrius and his business,

Executive Services; that, when Mrs. Brown

arrived at the bank on June 26, 1995,

Rosalyn was with Demetrius; that, after Mrs.

Brown made the initial check payable to

Executive Services, Demetrius told her that

Executive Services did not have an account

at that bank, but that his sister did;

that Demetrius told Mrs. Brown that he

wanted to deposit the initial check

into Rosalyn's savings account’ and

later transfer the money to Executive

Services' account; that

22 as

Demetrius deposited the check after Mrs.

Brown added Rosalyn aS a payee; that

Rosalyn's bank statement reflected a $50,000

deposit on June 26, 1995; that, on that same

day, $27,122.60 was withdrawn from

Rosalyn's account; that a $27,122.60

certified check dated June 26, 1995, was made

payable to the Social Security

Administration; that "Executive Services”

and "R. McNish" appeared on the remitter

line of the receipt; that Mr. Brown

testified that he owed $27,122.60 to

the Social Security Administration for the

overpayment of Social Security benefits and

that he had discussed this debt with

Demetrius; that the Browns also signed

and gave Demetrius 14 blank checks;

that the amounts and payees on those

checks were subsequently entered and

the checks were presented for

payment; that two of the checks were

payable to Rosalyn McNish, and the

Signature "Rosalyn McNish" appeared on

the back of the checks; that Mr. Brown

received only $2,000 from Demetrius; that

Demetrius gave Mr. Brown two checks that

were written on Rosalyn's checking

account and contained the signature

"Rosalyn McNish;" that both checks’ were

returned for nonsufficient funds; that Mr.

Brown made several attempts to contact

Demetrius after those checks were

returned for nonsufficient funds, but

Demetrius did not return his telephone

calls; and that, when Mr. Brown went to the

address Demetrius had given him for the

business, that business was not at that

address and none of the McNishes worked

at that location. Based on this

23

|

evidence, the jury could have

reasonably concluded that Rosalyn aided and

abetted Demetrius in depriving the Browns

of their property by deception and that

she conspired with Demetrius to commit

the crime of first-degree theft of

property. Therefore, her argument is

without merit. Accordingly, we affirm

the trial court's judgment as to Rosalyn

McNish.

AFFIRMED.

McMillan, P.J., and Cobb, Shaw, and

Wise, JJ., concur.

CLERK .

___P2EME COURT OF ALABAMA

Notice: This opinion is subject to formal revision before publication in the advance

sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,

Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)

242-4621), of any typographical or other errors, in order that corrections may be made

before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2002-2003

1991233

Ex parte Rosalyn McNish .

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

(In re: Demetrius Antone McNish and Doris McNish

and Rosalyn McNish

Vv.

State of Alabama)

(Pike Circuit Court, CC-97-282, CC-97-283, CC-97-284,

and CC-97-285;

Court of Criminal Appeals, CR-98-0654)

JOHNSTONE, Justice.

Appendix C

25

1991233

The defendant Rosalyn McNish, her

brother Demetrius McNish, and their

mother Doris McNish were tried together

on various theft, and conspiracy charges

for their alleged involvement in taking

money from two residents of Pike County, a

married couple who had won fourteen

million dollars in a Florida lottery. A

jury found Rosalyn guilty of two counts of

first-degree theft of property and two

counts of conspiracy to commit first-

degree theft of property. The triai

court sentenced Rosalyn to five years in

prison for each conviction and ordered the

sentences for the conspiracy convictions

to run concurrently with the sentences for

the theft convictions.

Rosalyn appealed, and the Court of.

Criminal Appeals affirmed the judgment of

26

——————

the trial court in a_- seventeen-page

opinion addressing all three defendants'

Claims. McNish v. State, [Ms. CR-98-0654,

February 4, 2000] So. 2d

(Ala. Crim. App. 2000). The Court of

Criminal Appeals also overruled

Rosalyn's ~ application for rehearing.

Rosalyn then petitioned this Court for

a writ of certiorari, which we granted

to analyze, among other issues, whether

Rosalyn preserved for review her challenge

to the sufficiency of the evidence to

Support her convictions.

27

1991233

At the close of the State's case,

Rosalyn said:

"I make a motion for a judgment

of acquittal on the grounds that

the State has not proven the case

beyond a reasonable doubt; and

also the prosecution has not

proven venue in this case. It did

not prove that the alleged

offenses took place in Pike

County.”

(R. 270-71.) (Emphasis added. ) The trial

court denied the motion. At the close of

all the evidence, Rosalyn filed in open

court a written motion for a judgment

of acquittal stating, "as grounds for said

motion would show unto the court the

evidence is insufficient to Support a

finding of quilt beyond a reasonable

doubt to the charged offenses." (R. 27980, ©

C.R. 3302. (Emphasis added.) The trial

court again denied the motion.

The Court of Criminal Appeals held

-

28

that Rosalyn had not preserved for

appellate review her challenge to the

sufficiency of the evidence to support

her convictions. The Court of Criminal

Appeals recognized and analyzed the

procedural facts of this issue this way:

"At the close of the State's

evidence, Rosalyn moved for a

judgment of acquittal on the

grounds that the State had not

proved s&s case beyond a

reasonable doubt and that the

State had not proved venue.

Rosalyn merely renewed her motion

for a judgment of acquittal at

the close of all of the evidence.

29

1991233

Because Rosalyn did not

allege in her motions for a

judgment of acquittal that the

State did not prove a_prima

facie case of theft and

conspiracy, the motions did not

squarely present to the trial

court the issue of the

sufficiency of the evidence;

consequently, [they were]

insufficient to preserve the

issue for appellate review.'

Johnson v. State, 500 So. 2d 69,

72 (Ala. Cr. App. 1986) (quoting

Trone v. State, 366 So. 2d 379

(Ala. Cr. App.

1979)).**

McNish, So. 2d at

(Emphasis added. )

In Ex parte Hall, [Ms. 1010415,

April 19, 2002] So. 2d (Ala. 2002),

this Court addressed a virtually

identical preservation issue:

"Tn his written motion for

a judgment of acquittal, Hall

stated as one of his grounds that

‘insufficient evidence has _ been

presented to support a finding

that the defendant is guilty

beyond a reasonable doubt.' This

statement is almost identical to

‘* |

the statement in Hanson [v. City

of Trussville, 539 So. 2d 1082

(Ala. Crim. App. 1988)], that the

city had not ‘proven that [the

defendant] is guilty of driving

while suspended or revoked

through the evidence.' Thus,

although Hall's statement here,

like the statement in Hanson, is

not as perfectly phrased as the

statement this Court endorsed

in Ex parte Maxwell, [439 So. 2d

715, 7i6 ({AiLa. 1963), £.@., "the

prosecution has failed to make

a prima facie case'], it was

nevertheless ‘sufficient ... to

put the trial court on notice of

a defect in the city's case,

and, therefore, sufficient to

preserve the issue for

review.' Hanson, 539 So. 2d at

1064.”

31

+ rae Liat

1991233

50. 2d at Judge Cobb aptly

addressed the same issue in her special

writing concurring in the result in Thomas

ov. State, 777 So..2d 317 (Ala. Crim. App.

2000):

"The majority concludes

that, because the defendant did

not intone the mantra, 'The State

has failed to prove a prima facie

case,’ the defendant's motion for

a judgment of acquittal was not

Sufficient to preserve the

issue for appellate review. I

disagree. I see no appreciable

difference between the words, 'The

State has failed to prove a

Prima facie case,' and the

defense counsel's words, 'The

evidence is insufficient to

convict my client and the State did

not prove beyond a_= reasonable

doubt that he is Oe Sh 6 ae |

believe that the motion for a

judgment of acquittal set out

Sufficient grounds to allow the

trial court to make an informed

decision on the motion. That

Claim. We reverse the judgment

32

a

of the Court of Criminal

being the case, the language

was sufficient to preserve the

issue for appellate review.”

777 So. 2d at 318. Thus, Rosalyn has

preserved for appellate review her claim

that the evidence was insufficient to

Support her convictions.

Therefore, the Court of Criminal

Appeals erred in holding that Rosalyn did

not preserve her challenge to the

State's evidence and erred in not

addressing the merits of Rosalyn's

Appeals affirming Rosalyn's convictions,

and we remand this cause for that court to

address the merits of Rosalyn's claim

a

1991233

that the evidence was insufficient to

Support her convictions.

REVERSED AND REMANDED.

Houston, Lyons, Brown, Harwood, and

Woodéll, JJ., concur. Moore, C.J.,

concurs specially.

Stuart, J., concurs in part and

dissents in part as to the rationale and

concurs in the result.

1991233

MOORE, Chief Justice (concurring.

specially).

I agree with the Court's reversal of

the Court of Criminal Appeals' judgment

in this case because McNish's’ counsel

undoubtedly preserved the issue of the

sufficiency of the evidence through both

case beyond a reasonable doubt . Likewise,

the written oral and written objections. In

the oral objection, a at the close of

the State's case, McNish's counsel

argued that "the State has not proven

the

motion for a judgment of acquittal, made at

the close of all the evidence, contended

that "the evidence is insufficient to

support a finding of guilt beyond a

reasonable doubt.” In my opinion, both of

35

citi ie

those objections were sufficient to preserve

for--appellate review the sufficiency-of-

the-evidence issue.

The Court of Criminal Appeals seems

to be making a distinction between

sufficiency of the evidence as related to

the State's prima facie case and

sufficiency of the evidence to Support a

finding of a defendant's guilt

beyond a reasonable doubt. "In proving

a prima facie case in a criminal

prosecution, all the State has done is

fulfill its duty of proving the elements

of the offense so that the jury may be

allowed to consider the case." Eldridge v.

State, 415

36

1991233

So. 2d 1190, 1194 (Ala. Crim. App. 1982).

If the State fails to prove its prima

facie case, then obviously it has not

presented enough evidence to support a :

finding of guilt beyond a reasonable

doubt. "Until the State proves, in the

first instance, beyond a reasonable

doubt, the facts which constitute the

offense, the accused is not required

to establish his innocence by exculpatory

evidence." Segars v. State, 86 Ala. 59,

60, 5 So. 558 (1888) . That the State

allegedly had not proven its case beyond a

reasonable doubt is exactly the objection

McNish's counsel made both at the close of

the State's case and at the close of all the

evidence. The objections were simply a more

explicit way of stating that the State had

not proven its prima facie case.

37

Therefore, the distinction made by the

Court of Criminal Appeals in this case is a

false one; McNish properly preserved the

issue of the sufficiency of the evidence

through her counsel's objection and her

motion for a judgment of acquittal.

1991233

STUART, Justice (concurring in part and

dissenting in part as to the rationale

and concurring in the result).

I agree with the majority that the

judgment of the Court of Criminal Appeals

in this case must be reversed and the case

remanded for the Court of Criminal

Appeals to examine the sufficiency of

the evidence to support Rosalyn

McNish's conviction. The issue - was

preserved by Rosalyn's motion for a

judgment of acquittal made at the close of

all the evidence.

he however, disagree with any

inference in the majority opinion that

Rosalyn's motion for a judgment of acquittal

made at the close of the State's evidence

preserved the issue for appellate review.

At that time, Rosalyn moved for a

39

i

judgment of acquittal on the grounds that

"the State has not proven the case beyond a

reasonable doubt." This motion did not

preserve a challenge to the sufficiency of

the evidence. Specifically, this objection

did not adequately advise the trial court

that it needed to review the sufficiency of

the evidence as to each element of the

offenses charged to determine if it was

necessary for the defense to _ present

evidence in opposition. While I agree with

the sentiment that it is not necessary to

use the exact terminology "The State has

failed to prove a prima facie case,"* I

cannot agree that the vague and ambiguous

40

1991233

Statement that "the State has not proven

the case beyond , reasonable doubt" is

adequate to place the trial court on

notice of a challenge to the sufficiency

of the evidence as to the charged

offenses.

Rosalyn, however, adequately

directed the trial court's attention to

the sufficiency of the evidence of the

charged offenses at the close of all the

evidence, by stating: "[{T]he evidence is

insufficient to support a finding of quilt

beyond a reasonable doubt to the charged

offenses." That objection directed the

trial court to consider the offenses charged

in the indictment and to determine

whether the evidence as to each element

of the charged offenses - was legally

41

_

matter of law.

sufficient to support a jury verdict as a

Rosalyn's challenge to the sufficiency

of the evidence.

""Specific

objections or motions

are generally

necessary before the

ruling of the trial

judge is subject to

review ....'

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, 640So0. 2d 1056, 1058 (Ala.

1994).

42

That objection preserved

1991233

While a motion for a judgment of

acquittal need not contain the specific

phrase "prima facie case," it does need to

adequately ‘direct the trial court's

attention to the evidence to allow an

informed decision on the motion.

43

| RELEAS=D

FEB ~ 4 204

{ALA COURT CRIMINAL ieee

NOTICE: This opinion is subject to formal revision before publication in the

advance sheets of Southern Reporter. Readers are requested to notify the Reporter

of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama

36104-3741 ((334) 242-4621), of any typographical or other errors, in order that

corrections may be made before the opinion is printed in Southern Reporter.

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1999-2000

CR-98-0654

Demetrius Antone McNish, Doris McNish, and Rosalyn McNish

Vv.

State

Appeal from Pike Circuit Court

(CC-97-246, CC-97-247, CC-97-248, CC-97-249, CC-97-250, CC-97-251,

CC-97-252, CC-97-253, CC-97-255, CC-97-256, CC-97-257, CC-97-258,

CC-97-259, CC-97-260, CC-97-261, CC-97-262, CC-97-263, CC-97-264,

CC-97-265, CC-97-266, CC-97-267, CC-97-288, CC-97-289, CC-97-290,

CC-97-291, CC-97-292, CC-97-293; CC-97-268, CC-97-269, CC-97-270,

CC-97-271, CC-97-272, CC-97-273, CC-97-274, CC-97-275, CC-97-276;

CC-97-277, CC-97-278, CC-97-279, CC-97-280, CC-97-281; CC-97-282,

CC-97-283, CC-97-284, and CC-97-285)

BASCHAB, JUDGE.

Demetrius McNish was convicted of 13 counts of first-degree

theft of property, violations of §13A-8-3, Ala. Code 1975 (cases

CC-97-247, CC-97-249, CC-97-251, CC-97-253, CC-97-257, CC-97-259,

Appendix D

wor ten nee tee es A a SE OO | 1 ee eer A gn, cee

44

CR-98-0654

CC-97-261, CO-97-263, Cilesi-2o5,

CC-97-267, CC-9i-239, CC-9$i-2Z9i,

ang CC-9/=293) j 13 counts of

conspiracy to commit first-degree

theft of property, violations of

§§13A-4-3 and 13A-8-3, Ala. Code

1975 (cases CC-97-246, CC-97-248,

CC+9 i290; CO-9 7-252, CC-97~256,

CC-97-258, CC-97-260, CC=-3/-262,

CC-97-264, CC-97-266, CC-97-288,

CC-97-290, and CC-97-292); and one

count of second-degree theft of

property, a violation of §13A-8-4,

Ala. Code 1975 (case CC-97-255). The

trial court sentenced him to serve ten

years in prison on each of the first-

degree theft convictions and five

years in prison on each of the

conspiracy convictions and the

second-degree theft conviction.'

Doris McNish was convicted of

seven counts of first-degree

45

theft of property, violations of

§13A-8-3, Ala. Code 1975 (cases

CC-97-269, CC=-97-271, CC-97-273,

CC-97=-275, CC=-97-277, CC-97-279,

and CC-97-281); and seven counts

of conspiracy to commit first

degree theft of property, violations of §§13A-

4-3 and 13A-8-3, Ala. Code 1975 (cases CC-97-

268, CC-97-270, CC-97-272, CC-97-274, CC-57-

276, CC-97-278, and CC-97-280). The trial court

sentenced her to serve five years in prison for

each of her convictions.'

Rosalyn McNish was convicted of two

counts of first-degree theft of property,

violations of §13A-8-3, Ala. Code 1975 (cases

CC-97-283 and CC-97-285); and two counts of

conspiracy to commit first-degree theft of

property, violations of §§13A-4-3 and 13A-83,

‘The trial court ordered him to serve his

sentences as follows:

"Case Nos. CC-97-246 and -247 to run concurrently, Case

Nos. CC-97-248 and -249 to run concurrently, Case Nos.

CC-97-250 and -251 to run concurrently, Case Nos. CC-97-

252 and -253 to run concurrently, Case Nos. CC-97-256 and

-257 to run concurrently, Case Nos. CC-97-258 and -259 to

run concurrently, Case Nos. CC-97-260 and -261 to run

concurrently, Case Nos. CC-97-262 and -263 to run

concurrently, Case Nos. CC-97-264 and -265 to run

concurrently, Case Nos. CC-97-266 and -267 to run

concurrently, Case Nos. CC-97-288 and -289 to run

concurrently, Case Nos. CC-97-290 and -291 to run

concurrently, and Case Nos. CC-97-292 and -293 to run

concurrently, but otherwise consecutively."

(C.R. 162-63.)

46

Ala. Code 1975 (cases CC-97-282 and CC-97-284)

. The trial court sentenced her to serve five

years in prison for each conviction.'

In June 1995, Willie Joe Brown, a

resident of Pike County, Alabama, won

$14,000,000 in the Florida lottery. Shortly

thereafter, Demetrius telephoned Mr.

Brown's home and talked to Stephanie Brown,

Mr. Brown's wife. Demetrius told her that he

represented "a lot" of lottery winners all over

the county and that he thought he could help Mr.

Brown manage his winnings to earn more

money. Mrs. Brown spoke to

2rhe trial court ordered Doris to serve

her sentences as follows:

"Case Nos. CC-97-268 and -269 to run

concurrently, Case Nos. CC-97-270

and -271 to run concurrently, Case

Nos. CC-97-272 and -273 to run

concurrently, Case Nos. CC-97274 and

-275 to run concurrently, Case Nos.

CC-97-276 and -277 to run

concurrently, Case Nos. CC-97-278 and

-279 to run concurrently, and Case

Nos. CC-97-280 and -281 to run

concurrently, but otherwise

consecutively.”

‘The trial court ordered her to

serve her sentences as follows: “Case

Nos. CC-97-282 and -283 to run

concurrently and Case Nos. CC-97-284 and

-285 to run concurrently, but otherwise

consecutively.” (C.R. 3321.)

47

—————————————— hhh

Demetrius on the telephone on

several occasions. On one occasion,

he told her that he’would be in the

area where they lived and asked if

he could come to their home. The

Browns agreed, and Demetrius went

' to their house on June 25, 1995.

Demetrius told the Browns that he

was a consultant, and he gave them

his business card. He also showed

them newspaper clippings from when

he had run for public office. Mr.

Brown testified that he and

Demetrius discussed a _ business

venture by which Mr. Brown would give

Demetrius money to purchase

discounted civil judgments. Mr. Brown

agreed to the venture and arranged for

Mrs. Brown to meet Demetrius the

following morning to set up 4

$50,000 account for Demetrius and his

business, Executive Services. When

Mrs. Brown arrived at_ the First

48 a

Alabama Bank in Troy, Alabama, the

following morning, Demetrius was

there with his sister, Rosalyn.

After Mrs. Brown had written the

$50,000 check to Executive Services,

Demetrius explained that Executive

Services did not have an account at

that bank, but his’ sister. did.

Therefore, he wanted to deposit the

money into Rosalyn's savings account

and later transfer the money to

Executive Services' account. Mrs.

Brow ..1.°*d Rosalyn as a payee, and

Demetrius sposited the check. On

that Sar: day, $27,122.60 was

withdrawn =rom Rosalyn's account. The

C tluced a receipt for a

oe i, “tified check dated June

26, i»v95, that was made payable to

the Social Security Administration..

"Executive Services" and oe

McNish" appeared on the remitter

line of the receipt. Mr. Brown

49

testified that he owed

$27,122.60 to the Social Security

Administration for the overpayment

of Social Security benefits and

that’he had discussed this debt

with Demetrius.

The Browns gave Demetrius 14

checks in addition to the initial

$50,000 check.' The total amount

of those checks’ was $218,400.

Either Mr. Brown oor Mrs. Brown

identified their signature on each

check. Both testified that the date,

payee, amount, and memorandum lines

were blank when they gave _ those

checks to Demetrius. Two of the

checks were payable to Rosalyn

McNish, and the signature "Rosalyn

McNish" appeared on the back of the

check. Seven of the checks were

made out to Doris McNish,

Demetrius' and Rosalyn's mother,

50 |

and the signature "Doris McNish"

appeared on the back of the checks.

Four of the checks were payable to

Demetrius McNish, and the final

check was payable to "Cash." The

Signature "Demetrius McNish"

appeared on the back of these

checks. One of the checks was dated

May 20, 1995. However, Mrs. Brown

testified .that neither she nor her

husband had a checking account before

he won the lottery in June 1995.

The memorandum lines on two of the

checks contained language indicating

that the money was a loan.

However, Mr. Brown denied that he

had agreed to loan Demetrius money to

use for personal and business

expenses. Rather, he testified

that the money from the checks was

to be used solely for purchasing

judgments. Mr. Brown

51

-

testified that he never received

any judgments from Demetrius and

that Demetrius did not give him any

proceeds from any judgments. He

testified that he did receive two

$1,000 cashier's checks from

Demetrius, but he did not know what

the money was for. Mr. Brown also

received two checks from Demetrius

that were written on Rosalyn's

checking account and contained the

Signature "Rosalyn McNish." Both

checks contained notations on the

memorandum line that they were

loan payments and both were

returned for nonsufficient funds.

Mr. Brown also received two checks

that were written on the account of

Cecilia A. Primm and contained the

notation "loan payment" on the

‘None of the appellants were

charged with taking the $50,000 from

the initial check.

: 52

memorandum lines. However, Mr.

Brown testified that he did not know

Cecilia Primm and he had not loaned

her any money. Both checks’ were

returned because the account was

closed. There was also testimony

that Demetrius assisted the Browns in

paying off existing bills and was

involved in the purchase of their

new home and automobile

insurance. However, the extent of

Demetrius ' involvement in these

transactions was not clear.

Mr. Brown telephoned Demetrius

when did not receive any money from

him. He testified that he called

Demetrius three or four times and

left messages on Demetrius' voice

mail. He also gave Demetrius the

telephone number for his’ beeper,

which had a tollfree telephone

number and ~—verce mail.

53

Nevertheless, Demetrius never

returned his telephone calls. mr.

Brown then went to Mobile to find

Demetrius’ office. He found the

address where Demetrius

CR-98-0654

had told him the business’ was

located, but there was no such

business there. Instead, he found a

building attached to a hotel ora

motel, but none of the McNishes worked

there. Mr. Brown also went to

Prichard to look for Demetrius.

While there, he talked with Doris

and told her that Demetrius was

going to get into trouble over the

checks. According to Brown, he was

talking about the checks written on

Rosalyn's account that had been

returned for nonsufficient funds.

Mrs. Brown testified that,

although her husband told her

something about Demetrius using the

54

money to buy judgments, she was not

familiar with the terms of the

agreement between him and

Demetrius. Mrs. Brown also

testified that she accompanied

Demetrius to the bank on_ several

occasions and gave him checks as her

husband directed.

is

Rosalyn argues that her trial

counsel rendered ineffective

assistance. (Issue I in Rosalyn's

brief to this court.) To prevail on

an ineffective-assistance-of-counsel

claim, an appellant must show that

counsel's performance was deficient

and that counsel 's deficient

performance prejudiced her. See

Strickland v. Washington, 466,U.S.

6668, 104 8.Ct. 2052, 80 L.Ed.2cc 674

(1984); Brown v. State, 663 So.2d

1028, 1032 (Ala. Cr. App. 1995). In

55

Oe ii mee

her motion for anew Criehi,

Rosalyn merely alleged that her

trial counsel rendered ineffective

assistance because the trial court

denied her motion for a

continuance.* She did not point to

any specific instances that she

alleged constituted deficient

performance, nor did she show how

more time to prepare would have

affected : her attorney's

performance. Thus, Rosalyn has not

Satisfied her burden of proof under

Strickland, and is not entitled to

relief on this claim.

i 2

Rosalyn also argues that the

trial court erred when it did not

grant a mistrial due to Mrs. Brown's

contact with a member of the jury.°

(Issue II in Rosalyn's brief to

: this court.) After a recess in the

| :

trial, Demetrius’ attorney moved

for a mistrial because Mrs. Brown

had had contact with a juror during

the recess. However, Rosalyn did not

join in Demetrius' objection, and

"[n]othing in the record indicates

that the judge made a practice of

treating an objection by one of the

three defendants' counsel as being

made by all three defendants." T. R.

D. v. State, 673 So.2d 838, 844

(Ala. Cr. App. 1995). Accordingly,

she did not preserve this issue for

our review.

"Rosalyn also appears to argue

that her trial counsel’ rendered

ineffective assistance because the

State did not rovide timely

discovery. However, she did not raise

this claim in her motion for a new

trial. Therefore, she did not

properly preserve this issue for our

review. ee Marshall v. State, 629

So.2d 766 (Ala. Cr. App. IYIJ3).

6 ‘ °

Additional ,l Rosal appears

to argue that the coset court

erroneously allowed the jury to

57

eee

+:

Rosalyn further argues that the

trial court erred in admitting the

cancelled checks into evidence

because the State allegedly did not

establish aa proper predicate and

chain of custody for-.those checks.

(Issue IV in Rosalyn's brief to

this court.) At trial, Doris'

attorney objected to the admission of

the checks on improper predicate and

chain-of-custody grounds. However,

Rosalyn did not join in this

objection. Therefore, she did not

preserve this issue for our review.

2ee Tt. R. D., Supra.

IV.

Next, Rosalyn argues that the

trial court improperly instructed

separate. Because she did not

present this argument to the trial

— she ~~ as Ps ch at for

ur review. see McCollum v. State

678 So.2d 1210 (Ala. Cr. App. 1995) —

BY)

the jury on a defendant's right not to

testify. (Issue VI in Rosalyn' s

brief to this court.) "No party

may assign as error the court's

giving of an erroneous, misleading,

incomplete, or otherwise improper

oral charge, unless the party

objects thereto before the jury

retires to consider its verdict,

stating the matter to which he or

‘she objects and the grounds of the

objection." Rule 21.3, Ala. R.

Crim. P.; see also McCollum ov.

State, 678 So. 2d 1210 (Ala. Cr. App.

1995). Rosalyn did not object to the

trial court's instruction on a

defendant's right not to testify.

Rather, she stated that she was

satisfied with the trial court's

instructions. Therefore, this issue

is not properly before this court.

V.

CR-98-0654

59

Demetrius and Rosalyn argue

that there was a fatal variance

between the allegations contained in

the theft indictments and the

evidence presented at trial. (Issue I

in Demetrius' brief to this court and

Issue V in Rosalyn's brief to this

court.) This issue is not properly

before this court. After the trial

court instructed the jury, Doris

amended her motion for a judgment of

acquittal to include, as a ground

the allegation that a material

variance existed. Neither Demetrius

nor Rosalyn joined in this

objection. Therefore, they did not

properly preserve this issue for

our review. See Biles v. State, 715

So.2d 878 (Ala. Cr. App. 1997)

(holding that issues relating to a

variance between the allegations

contained in an indictment and the

60

proof presented at trial must first

be raised in the trial court); T.

R. D., Supra.

fs

Demetrius argues that the trial

court erred in instructing the jury

on both first-degree theft and

conspiracy because the conspiracy

charges arose from the same facts or

course of conduct as the first-

degree theft charges. (Issue II in

Demetrius' brief to this court.) To

the extent that Demetrius is

arguing that the trial court

improperly instructed the jury, he

did not preserve this issue for our

review. At trial, Demetrius did not

object to the trial court's

instructions. Therefore, he did

not properly preserve this issue for

our review. See Rule 21.3, Ala. R.

Crim. P.; McCollum, supra. To the

61

extent that Demetrius is arguing that

he was improperly convicted of both

first-degree theft and

CR-98-0654

conspiracy, this issue is-~ not

properly before this court.

During the charge conference,

Demetrius' counsel stated, "I believe

he can be found guilty of

conspiracy and theft." (R. 339.)

"TA party cannot assume

inconsistent positions in the

trial and appellate courts and, as a

general rule, will not be permitted

to allege an error in the trial

court proceedings which was invited

by him or was a natural consequence

of his own actions."' Miller v.

i State, 668 So.2d 912, 916 (Ala. Cr.

App. 1995) +(quoting Hammers _ v.

State, 661 So. 2d 788 (Ala. Cr. App. 1994)

Because Demetrius attempts to

: 62 |

assert a position that is not

consistent with his position at

trial, this issue is not properly

before this court.

Vii

Demetrius also argues’- that,

even though the trial court ordered

that he serve the sentences for the

conspiracy convictions concurrently

with his sentences for the

corresponding theft

convictions, his sentences for

both conspiracy and first-degree

theft amount to multiple punishments

for the same offense. (Issue IV in

Demetrius' brief to this court.)

However, Demetrius' argument is

based on the assertion that, under

the facts of this case, he could not

be convicted of both theft and

conspiracy. As we noted in Part VI

of this opinion, this position is

not consistent with his position at

trial. See Miller, supra. Therefore,

63

TE EE ee ne Re MT ed en Eo ares

this issue is not properly before

this court.

Demetrius further argues’ that

he should not have been convicted

of multiple counts of conspiracy

and theft because the evidence, at

most, supported only one conviction

for conspiracy and one conviction for

theft. (Issues III and V in Demetrius'

brief to this court.) However, he did

not raise this issue before the trial

court. Accordingly, he did not

properly preserve it for our

review. See Harris v. State, 563

So.2d 9, 10-11 (Ala. Cr. App. 1989)

(holding that the appellant waived a

claim that his multiple convictions

for child pornography arising from the

same course of conduct violated

double jeopardy principles).

Demetrius also argues that the

trial court erred in charging the

64

BEST AVAIL

jury on 14 counts of theft. However,

because he did not object to the trial

court's instructions, he did not

preserve this issue for our review.

See Rule 21.3, Ala. R. Crim. P.;

McCollum, supra.

. ix.

Rosalyn finally argues that the

trial court erred in denying her

motions for a judgment of acquittal

because the State allegedly did not

present sufficient evidence to

S. rt her convictions. (Issue II

in :.salyn's brief to this court.)

Hu----"er, she did not properly preserve

+... issue for our review. At the

close of the State's evidence,

Rosa_yn moved for a judgment of

acquittal on the grounds that the

State had not proved its case beyond

a reasonable doubt and that’ the

State had not proved venue. Rosalyn

merely renewed her motion for a Judgment

of acquittal at the close of all of the evidence.

BLE COPY

| "The issue of the

a ee ae ke eet te ere pri. ahd “«

po

sufficiency of the evidence

1S preserved for review by

a defendant's motion for a

Judgment of acquittal that

1S entered at the end of the

State's case, at the close of

the evidence, see A.R.Cr,P,

20(a), or after the verdict

1S entered, see A.R. Cr.P.

20.3. The motion must state

th round thatthe state

fattea— tO prove a prima

facie Case. See e.g. Ex

1-449 sotd 772

a. I983). A_ defendant may

also. challenge _. the

Sufficiency of the evidence

when moving for a new trial

under A.R.Cr.P. 24.1 or

when satel for an arrest

of ie a under

ae S.24,- Ach. Ce.?.

ae a aN see Pearson 601

So.2d at 1123-24 er v.

Hs Of Hoover

ee > S&. Ge. App.

Zumbado v. State, 615 So.2d Leese

1241 (Ala. Cr. App. 1993) (emphasis

added). Because Rosalyn did not

allege in her motions for a judgment.

of acquittal that the State did not

prove a prima facie case of theft and

conspiracy, the motions did "not

squarely present to the trial court

66

the issue of the sufficiency of

the evidence; consequently, [they

were] insufficient to preserve the

issue for appellate review."

Johnson v. State, 500 So.2d 69, 72

(Ala. Cr. App. 1986) (quoting Trone

vy, State... 306 36.24 377 tate. Cr.

App. 1979)). Furthermore, Rosalyn

did not specifically challenge the

sufficiency of the evidence in her

motion for a new trial. See Johnson,

supra. Therefore, she did not

properly preserve this issue for

our review.

XxX.

Demetrius finally argues that the

evidence was not sufficient to

support his theft convictions. (Issue

VI in Demetrius’ brief to this

court.) Specifically, he argues that

the State did not prove that he

intended to deprive the Browns of

67

eae ee ee aes) 30) oy eee meee ‘

their property and that, at the time

he entered into the agreement with

Mr. Brown, he did

not intend to perform as _ promised.

When reviewing the sufficiency of

the evidence, we must view the

evidence in a light most

favorable to the State and

determine whether there was

evidence from which the jury, by

fair inference, could conclude

that the appellant was guilty beyond

a reasonable doubt. See Hale v.

State, 654 So.2d 83 (Ala. Cr. App.

1994).

Section 13A-8-3 (a) , Ala. Code

1975, defines first-degree theft of

property as the "theft of property

68

which exceeds

$1,000.00

Section 13A-8-4(a), Ala.

defines

property as

property which

second-degree

. [t] he

exceeds

$250.00

in value."

Code 1975,

of

of

in

value but does not exceed $1,000.00

in value, and which is not taken from

the person of another."

"A person commits the crime

of theft of property if

he:

"(2) Knowingly

obtains + |

deception contro

over the

of another,

to deprive

intent

the owner of

property."

§13A-8-2, Ala. Code 1975.

/ "“‘In a theft. trial,

intent is a question for

the jury.' Seaton v. State,

645 So.2d “S41 343

Cr. App. 1994). ‘Intent,

being a state

condition of the mind,

rarely, if

propert

wit

ever, susceptible

69

iiiihisatinciin nat acs sons rica

of direct or positive proof,

and must usually be

inferred from the facts

testified to by witnesses and

the circumstances as

developed by the evidence.'

McCord v. cave, SU So.z2a

92U, 328-529 (Ala. Cr. App.

1986), oting Pumphrev v.

State, 156 Ala. I03, 47 So.

ko0 (1908) .*

French v. State,, 687 So.2d 202, 204

(Ala. Cr. App. 1995), rev'd on other

grounds, 687 So.2d 205 (Ala. 1996).

The State presented evidence that

Mr. Brown agreed to give’ the

appellant money for the sole purpose

of purchasing; discounted civil

judgments. The Browns signed and

gave Demetrius 14 blank checks. The

amounts and payees on those checks

were subsequently entered and the

checks were presented for payment.

The amounts of the checks totaled

$218,400. Mr. Brown testified that he

received only $2,000 from Demetrius.

70

He testified that two other checks

Demetrius gave him were returned for

nonsufficient funds. Although Mr.

Brown made several attempts’ to

contact Demetrius after those

checks were returned for

nonsufficient funds, Demetrius did

not return his telephone calls. When

he went to the address Demetrius had

given him for the business, that

business was not at that address

and none of the McNishes worked at

that location. Accordingly, the

State presented sufficient evidence

from which the jury could have

concluded that Demetrius intended

to deprive the Browns of their

property and that he did not intend

to comply with the terms of the

agreement at the time he entered

into the agreement. Furthermore,

any evidence of services that

Ne ee On ars “a ee Pre ae gt oe

Demetrius may have provided to the

Browns merely created a conflict in

the evidence that also presented a

question for the jury to decide.

see Bennett v. State, 584 So.2d

869, 871 (Ala. Cr. App. 1990)

(holding that "{[clonflicting

evidence presents a question for the

jury, and a verdict rendered on

conflicting evidence will not be

disturbed on appeal"). Therefore,

Demetrius' argument is without

merit.

72

p>

Finaliy, Doris argues that the State

did not present sufficient evidence to

support her convictions for conspiracy and

theft. (Issue IV in Doris' brief to this

court.) Mr. Brown testified that he had met

Doris on two occasions and that they just spoke

and were friendly. He testified that Doris

never made any representations to him. He

also testified that Demetrius never

discussed Doris working with him. Mrs.

Brown testified that she had never met

Doris and that she had seen her only

once in a limousine with Demetrius when he had

come to her house’ to see Mr. Brown. Mrs. Brown

also testified that Doris never made any

representations to her. The State

presented seven checks that showed Doris

McNish as the payee and that were signed

"Doris McNish." However, the State did not

present any evidence that Doris ever had any

knowledge of the checks or that Doris actually

73

Oe |

Signed the checks. A bank statement for a

Savings account owned by Doris and Rosalyn

reflected deposits with dates and amounts

that corresponded to the dates and amounts

on some of the checks that the Browns had

given Demetrius. However, nothing showed that

Doris had any knowledge that the money was

being deposited into the account or that she

withdrew any of those funds. Therefore, the

State did not present sufficient evidence to

support Doris' theft and conspiracy

convictions. See Stinson v. State, 631 So.2d

831 (Ala. 1992) ; Greer v. State, 563 So.2d

39 (Ala. Cr. App. 1990).

EST AVARLABLE COPY e

Accordingly, we must reverse Doris’

convictions and sentences and render a

judgment in her favor.'

For the foregoing reasons, we. affirm

the trial court's judgment as to Demetrius

McNish and Rosalyn McNish. However, we

reverse the trial court's judgment as to

Doris McNish and render a judgment #n her

favor.

CONVICTIONS AND SENTENCES OF DEMETRIUS

MCNISH AND ROSALYN MCNISH AFFIRMED; CONVICTIONS

AND SENTENCES OF DORIS MCNISH REVERSED AND

JUDGMENT RENDERED.

Long, P.J., and McMillan, Cobb, and

Fry, JJ., concur.

75

'"Racad on our decision, we need not addresj