599 So. 2d 77 | Ala. Crim. App. | 1992
Gregory Wayne Hollis was indicted for the offense of rape in the first degree, in violation of §
The record indicates that at no time during the proceedings below did Hollis move to quash the indictment on the ground of its alleged defectiveness. The record further reflects that Hollis made no exception to the court's oral charge and that Hollis announced that he was satisfied with this charge, which included the charge of sexual abuse in the first degree. It is axiomatic that matters not objected to are not preserved for review and that an adverse ruling is required in order to preserve error for appellate review. Maul v. State,
Moreover, in Terry v. State,
Even assuming that the issue has been properly presented for appellate review, it is apparent that under the evidence presented by the State Hollis could have been found guilty of either first degree rape, which under §
Section
In cases challenging the sufficiency of the evidence, this court is required to consider the evidence in the light most favorable to the prosecution and will not substitute its judgment for that of the trier of fact. Brandon v. State,
The victim testified that Hollis came to her place and offered her money if she allowed him to stay the night. According to the victim, Hollis pushed the screen door, came inside, grabbed the victim, and pushed her to the floor. The victim further testified that Hollis was on top of her trying to get his pants down and that she tried to get away from him but that Hollis kept pulling her back to him by her ankles.
The victim further testified that she tried to kick Hollis, and that he placed his mouth on her private parts and then put her legs down and put his penis into her vagina. According to the victim, she attempted to get away from Hollis but he raped her a second time in the bedroom.
Although Hollis testified that his sexual intercourse with the victim was consensual, the testimony of the victim was sufficient to establish a prima facie case of either rape or sexual abuse, and any conflict in the testimony was for the jury to resolve. See Jones v. State,
Hence, the trial court properly denied Hollis's motion for judgment of acquittal on this ground.
During the court's oral charge, the court charged the jury on the offense of first degree rape and on the lesser included offenses of sexual abuse in the first degree and assault in the third degree. At no time prior to, during, or after the court's charge but before the jury began deliberations did Hollis request that the court instruct the jury on sexual misconduct. In actuality, Hollis announced that he was satisfied with the court's oral charge. Hollis, moreover, failed to submit a written requested charge on sexual misconduct. Hollis first objected to the court's oral charge in his motion for new trial, but this objection was untimely: "Not only must the exception be reserved to the oral charge to invite a review, but it must be done before the jury retires to deliberate onthe verdict." Terry v. State,
The trial court therefore properly denied Hollis's motion for new trial on this ground.
The foregoing opinion was prepared by the Honorable JAMES H. FAULKNER, a former Alabama Supreme Court justice, and his opinion is hereby adopted as that of the court.
The judgment of the circuit court is affirmed.
AFFIRMED.
All the Judges concur.