Christopher Denell Calloway v. State of Alabama (Appeal from Tuscaloosa Circuit Court: CC-17-1918.01).

Rel: June 28, 2024

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) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
_________________________

CR-2023-0108
_________________________

Christopher Denell Calloway

v.

State of Alabama

Appeal from Tuscaloosa Circuit Court
(CC-17-1918.01)

On Application for Rehearing

MINOR, Judge.

The opinion issued by this Court on March 22, 2024, is withdrawn

and the following is substituted therefor.

In this appeal, Christopher Denell Calloway asks us to determine

whether the State presented sufficient evidence of value of the stolen
CR-2023-0108

property to support his conviction for first-degree receiving stolen

property, see § 13A-8-17, Ala. Code 1975. Calloway also challenges his

conviction for first-degree robbery, see § 13A-8-41, Ala. Code 1975, and

his resulting sentence of life imprisonment. We affirm Calloway's

conviction for first-degree robbery and his resulting sentence. Because

the State presented no evidence of value of the stolen property, however,

we reverse Calloway's conviction and sentence for first-degree receiving

stolen property.

FACTS AND PROCEDURAL HISTORY

On the afternoon of December 28, 2016, Calloway and his

codefendant, Stephanie Robinson, collided the Chevrolet Sonic

automobile Calloway was driving into the back of Alice Barnette's

Chevrolet Traverse sport-utility vehicle while Barnette was stopped at a

red light on McFarland Boulevard in Tuscaloosa.

After the collision, Calloway approached the driver's side door of

Barnette's vehicle, opened it, and asked Barnette if she was okay.

Barnette told Calloway that she needed her cell phone, to which Calloway

stated that he had called 911. At that time, Robinson approached the

passenger side door of Barnette's vehicle. Calloway stated, "[T]hat's my

2
CR-2023-0108

wife, she's pregnant, do you mind if she sits down?" (R. 165-66), to which

Barnette said that she did not. Robinson then gathered the items that

had fallen onto the floorboard, put those items in Barnette's purse, and

put the purse under Robinson's arm. Calloway told Barnette to get out of

the vehicle, but Barnette refused to do so. Calloway then stated, "I'm not

going back to F'ing jail," (R. 172), pulled out a gun, hit Barnette on the

back of the head, and threw her to the ground. Calloway and Robinson

then drove off in Barnette's vehicle. Calloway and Robinson were later

apprehended in Mississippi.

Investigator Jedediah Kind, with the Tuscaloosa Police

Department, took custody of the 2012 Chevrolet Sonic that Calloway and

Robinson had been driving before the collision and ran its vehicle-

identification number. Investigator Kind found that the vehicle belonged

to Mathies Porter, a resident of South Carolina, and that he had reported

the vehicle stolen earlier that month.

Porter testified that on December 11, he saw a female, whom he

only knew as "Stephanie," (R. 268), and an unknown male walking

toward a gas station. Porter picked them up and took them to the gas

station. While there, "Stephanie" or Robinson stole several cases of beer.

3
CR-2023-0108

Robinson jumped in the vehicle and told Porter, "[L]et's go, let's go, let's

go" (R. 270), but Porter told Robinson to take the beer back inside. When

Robinson refused to do so, Porter took a case of beer back inside. While

Porter was inside, Robinson jumped in the driver's seat and she, along

with the male, who had not left the vehicle, drove off.

Porter testified that he had not seen his vehicle, which he described

as "a little old four-cylinder five-speed, [that] didn't burn no gas" (R. 271),

until the current robbery in Tuscaloosa. After his recollection was

refreshed with a police report he had made after the vehicle was stolen,

Porter recalled that he reported to police that a black male named "Chris"

had stolen his Chevrolet Sonic. (R. 275-77.) Porter also made an in-court

identification of Calloway. 1

After the State's case-in-chief, Calloway moved for a judgment of

acquittal, arguing that "[t]he State[ ] failed to reach their burden and the

elements required to prove robbery first degree and receiving stolen

property first degree." (R. 325.) The circuit court denied Calloway's

1Investigator Preston Grammer, with the Tuscaloosa Police
Department, obtained a warrant to secure Calloway's DNA, which he did.
Ellas Aldrick, employed by the Alabama Department of Forensic
Sciences, analyzed that DNA and determined that it matched the DNA
profile on a cigarette butt and a toboggan hat found in the stolen vehicle.
4
CR-2023-0108

motion. At the close of all the evidence, Calloway renewed his motion for

a judgment of acquittal, which was again denied. This appeal followed.

I. CALLOWAY'S CONVICTION FOR FIRST-DEGREE RECEIVING
STOLEN PROPERTY

Calloway argues that the State failed to produce sufficient evidence

to support his conviction for first-degree receiving stolen property as to

the Chevrolet Sonic because, he says, "[the State] did not present any

evidence establishing the value of the property at issue." (Calloway's

brief, p. 14.) We agree.

" ' " ' "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." ' Ballenger v.
State, 720 So. 2d 1033, 1034 (Ala. Crim. App.
1998), quoting Faircloth v. State, 471 So. 2d 485,
488 (Ala. Crim. App. 1984), aff'd, 471 So. 2d 493
(Ala. 1985). ' "The test used in determining the
sufficiency of evidence to sustain a conviction is
whether, viewing the evidence in the light most
favorable to the prosecution, a rational finder of
fact could have found the defendant guilty beyond
a reasonable doubt." ' Nunn v. State, 697 So. 2d
497, 498 (Ala. Crim. App. 1997), quoting O'Neal v.
State, 602 So. 2d 462, 464 (Ala. Crim. App. 1992).
' "When there is legal evidence from which the jury
could, by fair inference, find the defendant guilty,
the trial court should submit [the case] to the jury,
and, in such a case, this court will not disturb the

5
CR-2023-0108

trial court's decision." ' Farrior v. State, 728 So. 2d
691, 696 (Ala. Crim. App. 1998) (quoting Ward v.
State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990)).
'The role of appellate courts is not to say what the
facts are. Our role ... is to judge whether the
evidence is legally sufficient to allow submission of
an issue for decision [by] the jury.' Ex parte
Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)." ' "

Caver v. State, [Ms. CR-21-0333, Dec. 16, 2022] ___ So. 3d ___, ___ (Ala.

Crim. App. 2022).

Section 13A-8-17(a), Ala. Code 1975, provides: "Receiving stolen

property which exceeds two thousand five hundred dollars ($2,500) in

value constitutes receiving stolen property in the first degree." Section

13A-8-1(15), Ala. Code 1975, defines "value" as "[t]he market value of the

property at the time and place of the criminal act."

"A judgment of conviction for buying, receiving, or
concealing stolen property will be reversed absent proof of the
value of the property. Curtis v. State, 44 Ala. App. 335, 208
So. 2d 245; Padgett v. State, 44 Ala. App. 548, 216 So.2d 187.

"One convicted of buying, receiving, or concealing stolen
property is punished as if he had stolen it. Title 14, Section
338, Code of Alabama 1940. Therefore, the value of the
property must be proven in order to determine whether a
convicted defendant should be punished for grand or petit
larceny.

"As stated by Chief Justice Tyson for the Supreme
Court of Alabama in Booker v. State, 151 Ala. 97, 44 So. 56
(1907):

6
CR-2023-0108

" 'There was no proof of the value of the property.
Under the statute the offender must be punished
as if he had stolen it. Proof of value was, therefore,
necessary to a conviction, in order to determine
whether the punishment should be that prescribed
for petit larceny or grand larceny.'

"In the instant case we have carefully searched the record, but
have found no testimony whatsoever as to the value of the
freezer or television set. Therefore, for the reasons stated, the
judgment of conviction is due to be reversed and the cause is
hereby remanded."

Nelson v. State, 56 Ala. App. 209, 211–12, 320 So. 2d 714, 716 (Crim.

App. 1975).

The State presented no admitted evidence of the value of the stolen

Chevrolet Sonic. Although the State pointed out that the index of exhibits

contained in the record shows that Exhibit 56, which reflected that the

Chevrolet Sonic had a value of $8,000, was admitted (C. 106, 222-23), the

index of exhibits does not control over the actual transcript. And the

transcript of the trial does not show that Exhibit 56 was admitted. 2 (R.

2We note that Exhibit 56 was used to refresh Porter's recollection,

but it was not admitted. The State concedes that, if Exhibit 56 was not
admitted, there was insufficient evidence to support Calloway's
conviction for first-degree receiving stolen property. (State's brief, p. 9
("Alternatively, if the police report [Exhibit 56] was not properly received
into evidence, then this Court should reverse Calloway's conviction for
receiving stolen property in the first degree because the State failed to
7
CR-2023-0108

275.) Thus, Calloway's conviction for first-degree receiving stolen

property is due to be reversed. See Nelson, supra.

II. CALLOWAY'S CONVICTION FOR FIRST-DEGREE ROBBERY

As for Calloway's conviction for first-degree robbery, Calloway

makes two arguments: (1) that the indictment charging first-degree

robbery was defective because, he says, "the addition of an alternative

element that significantly and erroneously reduced the State's burden

effectively nullified a necessary element of the crime," and (2) that the

present any other evidence proving the value of the stolen vehicle as
required by Section 13A-8-17.").)

On rehearing, the State reverses course and now argues that it did
not have to prove the value of the vehicle. "The general rule is that a
party may not assume inconsistent positions at trial and on appeal, see,
e.g., Ex parte Sharp, 151 So. 3d 329, 337 (Ala. 2009), and we believe that
applies equally to a party assuming inconsistent positions on original
submission and on rehearing in this Court." L.M.L. v. State, [Ms. CR-20-
0157, Aug. 5, 2022] ___ So. 3d ___, ___ (Ala. Crim. App. 2022) (plurality
opinion on application for rehearing). Even if the State had not taken
inconsistent positions, however, we still could not consider its arguments
on rehearing. See, e.g., Water Works & Sewer Bd. of City of Selma v.
Randolph, 833 So. 2d 604, 608-09 (Ala. 2002) (" ' "We cannot sanction the
practice of bringing up new questions for the first time in applications for
rehearing." ' … We are constrained to deny the application. The question
of the effect of the portion of the statute on which Randolph relies for the
first time on application for rehearing on entities such as The Water
Works and Sewer Board of the City of Selma will have to await another
day.").
8
CR-2023-0108

circuit court erred by granting the State's requested jury instruction

because, he says, "it improperly led the jury to believe that it was

irrelevant whether Calloway actually had a gun." (Calloway's brief, p. ii.)

Neither issue, however, is preserved for appellate review.

As for Calloway's first argument, the record shows that Calloway

did not object to the indictment. See Calhoun v. State, 932 So. 2d 923,

936 (Ala. Crim. App. 2005); and Rules 15.2(a) and (c), Ala. R. Crim. P.

Thus, Calloway is due no relief.

As for Calloway's second argument, during the charge conference,

the State requested that the circuit court charge the jury that "[I]t is not

necessary to prove that an accused person displayed a gun during a

robbery or that he actually had a gun in his possession in order to sustain

a conviction for robbery in the first degree." (C. 65, R. 373.) In response,

Calloway argued: "We just want to give the pattern [jury instruction]."

(R. 373.)

Based on that, we cannot say that Calloway sufficiently preserved

his argument that the circuit court's jury instruction was misleading.

" 'Review on appeal is restricted to questions
and issues properly and timely raised at trial.'
Newsome v. State, 570 So. 2d 703, 717 (Ala. Crim.
App. 1989). 'An issue raised for the first time on

9
CR-2023-0108

appeal is not subject to appellate review because it
has not been properly preserved and presented.'
Pate v. State, 601 So. 2d 210, 213 (Ala. Crim. App.
1992). ' " [T]o preserve an issue for appellate
review, it must be presented to the trial court by a
timely and specific motion setting out the specific
grounds in support thereof." ' McKinney v. State,
654 So. 2d 95, 99 (Ala. Crim. App. 1995) (citation
omitted). 'The statement of specific grounds of
objection waives all grounds not specified, and the
trial court will not be put in error on grounds not
assigned at trial.' Ex parte Frith, 526 So. 2d 880,
882 (Ala. 1987). '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, 640
So. 2d 1056, 1058 (Ala.1994)."

Ex parte Coulliette, 857 So. 2d 793, 794-95 (Ala. 2003). Thus, Calloway

is due no relief.

CONCLUSION

For these reasons, we reverse Calloway's conviction and sentence

for first-degree receiving stolen property and remand this case to the

circuit court for that court to set aside that conviction and sentence. We

affirm Calloway's conviction of first-degree robbery and his resulting

sentence of life imprisonment.

10
CR-2023-0108

APPLICATION OVERRULED; OPINION OF MARCH 22, 2024,

WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART;

REVERSED IN PART; AND REMANDED.

Kellum and Cole, JJ., concur. Windom, P.J., and McCool, J., concur

in the result.

11