Opinion
CR-2022-1057
10-27-2023
Jarmaine D. Wright v. State of Alabama
This unpublished memorandum should not be cited as precedent. See Rule 54, Ala. R. App. P. Rule 54(d) states, in part, that this memorandum "shall have no precedential value and shall not be cited in arguments or briefs and shall not be used by any court within this state, except for the purpose of establishing the application of the doctrine of law of the case, res judicata, collateral estoppel, double jeopardy, or procedural bar."
Appeal from Mobile Circuit Court (CC-19-4958.70)
On Application for Rehearing
MEMORANDUM DECISION
MINOR, JUDGE
This Court withdraws its memorandum of March 17, 2023, and substitutes this memorandum in its place.
In this appeal, Jarmaine D. Wright asks us to determine whether the State's evidence was sufficient to support the Mobile Circuit Court's revocation of his probation that he was serving on his underlying manslaughter conviction, see § 13A-6-3, Ala. Code 1975. We conclude that the State's evidence was sufficient. Thus, we affirm.
The circuit court sentenced Wright to 204 months' imprisonment for his manslaughter conviction. The circuit court split that sentence to 36 months' imprisonment to be followed by 36 months' probation.
In May 2022, Wright's probation officer filed a delinquency report charging Wright with violating the conditions of his probation by having arrests for new criminal conduct: third-degree domestic violence (menacing), second-degree domestic violence (second-degree burglary), and first-degree domestic violence. (C. 6-8.) In July 2022, Wright's probation officer filed an amended delinquency report for new offenses: first-degree burglary and first-degree domestic violence. (C. 16-17.)
At the revocation hearing, Officer Simon Waldrop testified about responding to a complaint at Cotangela Lesueur's residence. (R. 4.) Officer Waldrop testified that Lesueur told him that Wright had assaulted her. Officer Waldrop testified that he saw "a bruise and scraped skin that seemed fresh on [Lesueur's] knee." (R. 5.)
Lesueur also testified at the hearing, stating that in May 2022, she woke up around 6:00 a.m. to get her two children ready for school. (R. 9.) Around 6:45 a.m., she heard banging coming from her bedroom window. (R. 10-11, 18.) Lesueur then heard banging coming from the front door and identified the person as Wright. (R. 11.) Lesueur testified that she and Wright had dated for about six or seven months but that the relationship had ended in November. (R. 10.) Lesueur asked Wright to leave, as he appeared to be intoxicated. (R. 11.) Wright kept beating on the door, and Lesueur opened it to prevent her children from waking up. (R. 12, 19.) Lesueur again told Wright he needed to leave, but Wright forced his way into Lesueur's house. (R. 13.)
Inside, Wright sat on a chair for about three minutes before Lesueur told Wright again that he had to leave. (R. 13.) Wright started screaming at Lesueur that she was "trying to kill his family," and he began choking her. (R. 13.) Wright injured Lesueur's knee and ripped off her wig, tearing portions of her hair out. (R. 14.) Wright released Lesueur when one of her children entered the room. (R. 14.) Wright said, "This is not over," and left the house. (R. 14.) Lesueur called the police about an hour after the incident. (R. 15.) Wright called Lesueur a week later from an unidentified number and taunted her for calling the police. (R. 16, 22.)
The circuit court stated at the end of the revocation hearing:
"THE COURT: All right. The Court has heard testimony back, oh, was that last week?
"....
"THE COURT: All right. Last week from Officer Waldrop from Mobile Police Department regarding a call on 5/17 of '22 in Mobile County for a domestic violence incident regarding a strangulation by the Defendant, Mr. Jarmaine Wright, and the officer testified that as to the victim's statement to him, he observed bruising and scrapes on her left knee.
"And then, I heard further testimony from Ms. Lesueur, who is the alleged victim in this case. She has been in a dating relationship in the past with Mr. Wright. She testified that about 6:30 a.m. in the morning, he began banging violently on her door and that he appeared to be intoxicated. She told him to go home. Eventually, she opened the door because of a disturbance. He stuck his foot in the door and pushed his way in. He ripped the wig off her head and then began chocking her and pushed her-where her knee injury occurred, and that all of this occurred in her home. Therefore, the Court is reasonably satisfied that Mr. Wright committed the new offenses of [first-degree burglary] and [first-degree domestic violence], and I'm going to fully revoke his probation."(R. 28-29.) The circuit court confirmed those findings in a written order dated July 26, 2022. (C. 26.) Wright moved the court to reconsider, alleging that there was not credible evidence to prove Wright committed the new offenses. (C. 29.) The circuit court denied Wright's motion. (C. 36.) Wright timely appealed.
On appeal, Wright argues that the circuit court erred by revoking his probation because, he says, "[t]he State did not present evidence establishing the essential elements of burglary, first degree or domestic violence, first degree, to reasonably satisfy the trial court that [Wright] violated conditions of his probation by committing those offenses." (Wright's brief, p. 7.)
"[T]he formality and evidentiary standards of a criminal trial are not required in parole revocation hearings." Puckett v. State, 680 So.2d 980, 981-82 (Ala.Crim.App.1996). "'It is not necessary in a probation revocation hearing to provide proof beyond a reasonable doubt or by a preponderance of the evidence. Rather, the lower court need only be "reasonably satisfied from the evidence that the probationer has violated the conditions of his probation."'" Goodgain v. State, 755 So.2d 591, 592 (Ala.Crim.App.1999) (quoting Mitchell v. State, 462 So.2d 740, 742 (Ala.Crim.App.1984), quoting in turn Armstrong v. State, 294 Ala. 100, 103, 312 So.2d 620, 623 (1975)).
The evidence supports the circuit court's finding that Wright violated the terms of his probation by committing the new offenses of first-degree burglary and first-degree domestic violence.
"A person commits the crime of burglary in the first degree if he or she knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in dwelling or in immediate flight therefrom, the person or another participant in the crime ... [c]auses physical injury to any person who is not a participant in the crime."§ 13A-7-5, Ala. Code 1975. Lesueur testified that Wright forced his way into her house, refused to leave, and assaulted her. Officer Waldrop testified to the victim's statement made to him and observed bruising and scrapes on Lesueur's left knee.
Wright's intent to commit a crime when he entered Lesueur's house "can reasonably be inferred from the acts themselves and from the testimony about the incident." Mims v. State, 816 So.2d 509 (Ala.Crim.App.2001); see also Marshall v. State, 992 So.2d 762, 772 (Ala.Crim.App.2007) (holding that the intent to commit a crime could be inferred because the defendant strangled the victim). Lesueur testified that she was distressed when Wright continued to bang on her front door after she asked him several times to leave. (R. 10-13.) See Simmons v. State, 108 So.2d 184, 187 (Ala. Ct. App. 1959) (ignoring a homeowner's pleas to leave, under the circumstances, can show intent to commit a crime). Inside Lesueur's home, Wright started screaming that Lesueur was trying to kill his family and said, "You think you can get away with that?" (R. 13.) Based on the evidence, it is reasonable to infer that Wright broke into Lesueur's home intending to commit a crime. And when Lesueur tried to leave Wright threw her on the couch, injuring her knee. Thus, the evidence was sufficient for the circuit court to be reasonably satisfied that Wright committed the new offense of first-degree burglary.
Wright's argument that the State did not allege or prove an underlying offense for which he could be found guilty of first-degree domestic violence lacks merit. The State alleged in its delinquency report and proved that Wright committed the new offense of first-degree burglary.
"A person commits the crime of domestic violence in the first degree if the person commits the crime of assault in the first degree pursuant to Section 13A-6-20; aggravated stalking pursuant to Section 13A-6-91; or burglary in the first degree pursuant to Section 13A-7-5 and the victim is a current or former spouse, parent, step-parent, child, step-child, any person with whom the defendant has a child in common, a present household member, or a person who has or had a dating relationship with the defendant."§ 13A-6-130(a)(1), Ala. Code 1975.
As a part of his challenge to the sufficiency of the State's evidence, Wright asserts: "[T]he State did not even allege, in the delinquency report, the revised delinquency report, or at the revocation hearing, an appropriate underlying offense for domestic violence, first degree." (Wright's brief, p. 13.) To the point that this assertion challenges the State's notice of the alleged violations of his probation, Wright did not make this argument below. Thus, it is not preserved for appellate review.
"'"The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Crim.App.1992). This Court 'has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.' Puckett, 680 So.2d at 983."'
"Bauer v. State, 891 So.2d 1004, 1006 (Ala.Crim.App.2004) (quoting Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998)). This court has also recognized a third exception that a defendant can raise for the first time on appeal-the requirement that the court advise the defendant of his or her right to request an attorney to represent the defendant during probation-revocation proceedings. See Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000). A fourth exception to the
preservation rule recently announced by our Supreme Court also allows a defendant to raise for the first time on appeal the allegation that the circuit court erred in failing to appoint counsel to represent the defendant during probation-revocation proceedings. See Dean v. State, 57 So.3d 169 (Ala. 2010)."Saffold v. State, 77 So.3d 178, 179 (Ala.Crim.App.2011).
Because the general rules of preservation apply to probation revocation proceedings-and because Wright's argument is not subject to one of the four exceptions to that general rule-his argument is not properly before this Court and will not be considered.
For these reasons, the circuit court's judgment is affirmed.
APPLICATION OVERRULED; MEMORANDUM OF MARCH 17, 2023, WITHDRAWN; MEMORANDUM SUBSTITUTED; AFFIRMED.
Windom, P.J., and Kellum, McCool, and Cole, JJ., concur.