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TIMS v. STATE9/26/1997
The appellant, John Wendell Tims, was convicted of one count of murder, two counts of assault in the second degree, and seven counts of assault in the third degree. He was sentenced to 12 years' imprisonment for the murder count, to 5 years' imprisonment for each count of assault in the second degree, and to 1 year's imprisonment for each count of assault in the third degree. All the sentences were to run concurrently.
I.
The appellant contends that the evidence was not sufficient to support his conviction for murder.
The appellant was charged with, and was convicted of, violating § 13A-6-2(a)(2), Ala. Code 1975, which provides that person commits the crime of murder if . . . nder circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person." In arguing that there was insufficient evidence to support the murder conviction, the appellant contends that the state failed to prove that he acted recklessly, with extreme indifference to human life.
"In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala. Cr. App. 1984), aff'd, 471 So.2d 493 (Ala. 1985). Furthermore, a judgment of conviction will not be set aside on the ground of insufficiency of the evidence unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the judgment is so decided as to clearly convince the reviewing court that it was wrong and unjust. Jackson v. State, 516 So.2d 726 (Ala. Cr. App. 1985)."
Powe v. State, 597 So.2d 721, 724 (Ala. 1991). Circumstantial evidence must be accorded the same weight as direct evidence. Linzy v. State, 455 So.2d 260, 262 (Ala. Cr. App. 1984).
The evidence presented by the state tended to show the following: At about 11:00 a.m. on August 12, 1995, an automobile driven by the appellant collided with a van driven by Gwendolyn Grady near the George Wallace Tunnel in Mobile. There were 10 occupants in the van at the time of the collision. One occupant of Grady's van was killed as a result of the collision. Two other occupants of the van sustained serious physical injuries,
and seven occupants, including Grady, sustained less severe injuries. The appellant and a passenger in his automobile were also injured. Leonard Blanchard, an eyewitness to the events, testified that shortly before the collision, he was driving west on Interstate 10, just east of the George Wallace Tunnel, when he observed the appellant also driving west on I-10. Blanchard stated that the appellant appeared to be engaged in an animated argument with the passenger in his car and that he was looking at his passenger instead of the road. According to Blanchard, the appellant was driving erratically, weaving constantly and nearly hitting the wall at the entrance to the tunnel. Blanchard stated that once inside the tunnel, he slowed his own vehicle down in order to put some distance between himself and the appellant's car. He testified that the appellant's vehicle did not appear to be speeding or weaving while he was in the tunnel. However, just after exiting the west end of the tunnel, Blanchard said, the appellant accelerated his vehicle to approximately 70 miles per hour and again began to weave from lane to lane. The speed limit on this stretch of road was 55 miles per hour. Still apparently arguing with his
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