Saylor v. StateSaylor v. State
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- Before:
- Cobb
Gоrdon Lee Saylor was convicted of assault in the first degree, a violation of
The principal facts are as follows. Saylor and Angela Smith had been living together for five or six months. On January 25, 1997, Smith and Saylor argued and Smith left the house. When she returned a few hours later, at around one o‘clock а.m., Saylor was not home. At around five o‘clock a.m., Saylor
Smith further testified that she heard Saylor ask his friend if he could borrow his truck so that he could kill Smith and dump her body. Smith also testified that Saylor told her he was going to kill her. At this point, Smith ran outside, got into the truck, and tried to lock its doors. She testified that Saylor followed, reached into the truck, and hit her again. Smith testified that Saylor then got in on the passenger side and cut her neck twice with a knife. Saylor testified that the cutting was accidental.
Saylor was indicted for attempted murder. The judge instructed the jury on attempted murder and on the lesser included offenses of assault in the first degree and assault in the second degree. The jury found Saylor guilty of assault in the first degree.
On appeal, Saylor challenges the sufficiency of the evidence to support his conviction. Specifically, he contends that the State failed to prove that Smith suffered “serious physical injury” and that, consequently, the trial court erred in instructing the jury on assаult in the first degree.
In determining whether the trial court erred in charging the jury on assault in the first degree, we must consider the following definitions of assault and its elements, on which the jury was charged in this case:
“(a) A pеrson commits the crime of assault in the first degree if:
“(1) With intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument; or
“. . .
“(3) Under circumstances manifesting extreme indifference to the value of human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to any person. . . .
“Serious Physical Injury. Physical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”
“Dangerous Instrument. Any instrument, article or substance which, under the circumstances in which it is usеd, attempted to be used or threatened to be used, is highly capable of causing death or serious physical injury. . . .”
The record reveals that Saylor did attack Smith with a deer skinning knife, which is clearly a deadly weapon. The record also reveals, however, that Smith did not suffer from “serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”
In Hale v. State, 654 So. 2d 83 (Ala.Cr.App. 1994), hospital records showed that the victim was shot twice, remained in intensive care for 13 or 14 days, аnd had a drainage tube in his chest during most of his hospitalization. His lungs had collapsed at least once. Although the injuries the victim sustained
Likewise, in this case, no medical expert testified and Smith‘s testimony regarding her injury was scant. Smith described hеr injury merely as being “cut.” She then briefly described the angiogram procedure she underwent, a test that revealed that there was no internal bleeding. Smith also made the statements that “[Saylor] missed [her] mаin artery by barely a hair” and that she “still [had] problems from where [she] did get stabbed.” This evidence falls short of showing that Smith suffered from “serious and protracted disfigurement, protracted impairment of heаlth or protracted loss or impairment of the function of any bodily organ.”
Evidence of “substantial risk of death,” as that term is used in
The evidence in this case is insufficient to establish that there was a real hazard or danger that Smith might die from her injuries. Although Smith testified that one of the stab wounds “missed [her] main artery by barely a hair,” the angiogram performed during her brief hospital stay revealed that there was no damage to the artery. No medical expert testified that Smith‘s injuries were life threatening. Compare Ware v. State, 584 So. 2d 939, 941 (Ala.Cr.App. 1991) (serious physical injury found where a physician testified that he initially “felt like there were potentially life threatening injuries,” and that although tests enabled him to rule out “immediate life threatening [injuries],” he did not rule out “delayеd life threatening [injuries]“); Rothchild v. State, 558 So. 2d 981, 983 (Ala.Cr.App. 1989) (serious physical injury found where two physicians testified “that had the victim not received treatment she quite possibly could have died“).
Smith‘s hospital record does not support а finding that her injuries created a substantial risk of death. Smith‘s hospital record characterizes Smith‘s injuries as “two stab wounds, skin bleeder, no deep bleeding or hematoma” with “no air escaping.” The record notes active bleeding on admission to the hospital, but states that Smith was “hemodynamically stable” and exhibited no shortness of breath. It also documents that there was no evidence of internal bleeding or of any damage to veins, arteries, or organs, and no evidence of esophageal laceration. The hospital record described Smith‘s stay as “uneventful” and she was discharged in “satisfactory condition” the day after she was admitted.
The State asks this court to rely on Anderson v. State, 686 So. 2d 381 (Ala. 1996), in which the Alabama Supreme Court noted that a deep puncture knife wound to the thigh could meet the statutory definition of serious physiсal injury. 686 So. 2d at 384-385. Anderson, however, is distinguishable from this case. In Anderson, the victim suffered not only from a deep puncture knife wound, but also from a burst eardrum, a fractured rib, trauma to the head, and various bruises and scrapes. 686 So. 2d at 383. Furthermore, in Anderson, a medical expert characterized some of the victim‘s injuries as “severe.” Id. at 385. In contrast, in this case, no medical expert testified and no evidence was presented that Smith‘s “cut” was even a deep puncture. Thus, the рresent case is distinguishable from Anderson.
“(b) The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.”
Whether Smith suffered “serious physical injury,” as that term is defined in
As the State argued in its brief, the State‘s evidence doеs support a conviction for assault in the second degree. Section
“(a) A person commits the crime of assault in the second degree if. . . .:
“(2) with intent to cause physical injury to another person, he or she causes physical injury to any person by means of a deadly weapon or dangerous instrument.”
Therefore, Saylor‘s conviction for first-degree assault must be reversed. Because there was sufficient evidence to find Saylor guilty of second-degree assault, this cause is remanded to the circuit court, in accordance with Ex parte Edwards, 452 So. 2d 508 (Ala. 1984), with directions that Saylor‘s first-degree assault conviction be set aside and that Saylor be properly adjudged guilty of, and sentenced for, the offense of second-degree assault.
REVERSED AND REMANDED WITH INSTRUCTIONS.
All the Judges concur.