Curtis Walon Caver v. State of Alabama

Rel: December 16, 2022

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,
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________

CR-21-0333
_________________________

Curtis Walon Caver

v.

State of Alabama

Appeal from Jefferson Circuit Court
(CC-19-2453)

McCOOL, Judge.

Curtis Walon Caver appeals his conviction for third-degree

burglary, a violation of § 13A-7-7, Ala. Code 1975. The trial court

sentenced Caver to 10 years' imprisonment but suspended the sentence

and placed Caver on supervised probation for two years.
CR-21-0333

Facts and Procedural History

In September 2018, Jerrod McCombs owned a mobile home that sat

on property adjacent to the property on which his sister lives. McCombs

was not living in the mobile home at that time but, instead, "was living

at [his] sister's house because [he] was currently out of work" and "was

also doing work on [his] home." (R. 99.) The evidence presented at trial

did not indicate how long McCombs had been living with his sister, but

his "stuff" was "still in [his] house." (Id.) While living with his sister,

McCombs "had the utilities cut off at [his] property" so that he could

"conserve money." (Id.)

On the morning of September 6, 2018, McCombs was at his sister's

house when he noticed a car sitting outside the horse stables that are

next to his and his sister's properties. McCombs walked onto his sister's

porch and watched the driver, whom McCombs identified at trial as

Caver, "sit there for about 30 minutes just kind of staring into the horse

stable property." (R. 100.) When Caver left the horse stables, he stopped

to ask McCombs "if there was anybody at the horse stables" because he

had been "told … about a job opportunity" there. (R. 101.) McCombs told

Caver that the horse stables were "not doing much business" at that time

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and that he did not think the owners were hiring, and Caver said that he

would "check back later" and then drove away. (Id.) Regarding what

occurred next, McCombs testified:

"Q. Okay. And so did anything else happen that morning?
And if so, how long after?

"A. Approximately anywhere from 45 minutes to an hour
later I'm walking through my sister's house. And I start
hearing the dogs barking towards the direction of my
house.

"….

"Q. What did you do when you heard them barking?

"A. I went ahead and grabbed my pistol because I kind of
had an odd experience earlier in the morning. So I
walked down the field, and I see [Caver's] car setting
[sic] there in my driveway. He had pulled it up far
enough that you couldn't directly see it off my sister's
front porch. ….

"….

"Q. What did you do when you saw [Caver's] car in front of
your house?

"A. When I saw it, I immediately looked in to see if anybody
was in the car, which there wasn't. I then kind of
surveilled the property itself and couldn't find anybody.
So then I walked up to my front steps and was at the top
of my steps reaching for my door, and I looked through
my window and –

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"Q. Okay. I want to break that down. When you see – when
you look at your home, the window, where did that
window look into?

"A. It looks into my den. But it's a mobile home, so it's kind
of a larger window.

"Q. And so when you looked into that window, what are you
seeing?

"A. From the steps, you're looking at the far wall of the den
and my bedroom door.

"Q. Okay. Are you able to go into the home, or do you go into
the home at that point?

"A. At that moment, I did not.

"Q. Okay. And I want to ask is your house or your home,
was it locked or unlocked?

"A. It was unlocked because we live in the middle of
nowhere.

"Q. Okay. And as you're going to open the door, what did
you see?

"A. I see [Caver] going through a box of stuff in my bedroom.

"Q. You said a box of stuff. Was there a bunch of stuff in
boxes at this point?

"A. Yes. My previous job prior to that was at a cell phone
repair place. And I was in a program with Samsung, so
I had, like, a lot of old cell phones and cell phone parts
and different cellular gadgets kind of in boxes in there.

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"Q. What happened when you saw [Caver] in your bedroom
going through that back [sic]?

"A. I started to open the door. And at that point, he heard
me, and he jumped back and closed the bedroom. So at
that point, I take a few steps back from the steps so I
can get to a point to where I can see if he comes out the
back door or the front door. And at that point, I called
911.

"Q. Okay. Did [Caver] ever come out of your house?

"A. Yes. After a few minutes, he walks out. And at that
point, I've already got him at gunpoint. And he begins
screaming, 'I'm not stealing anything, I'm not stealing
anything.' His words, 'I was just taking a shit.'

"….

"Q. Can you explain to us kind of where you're positioned
and where he is positioned in terms of the vehicle?

"A. He's positioned between the vehicle and my house. And
I've kind of got myself positioned to the back corner of
his vehicle. Just in case he did have some sort of
weapon, I had some sort of cover.

"Q. And kind of after everything was over and he was taken
by police, did you find anything by his vehicle?

"A. I did. After they towed his vehicle, I found one of my
knives laying [sic] there.

"Q. You said one of yours – where was that before it was by
the vehicle?

"A. It was in my house in my room.

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"….

"Q. After this happened, … how did your home look on the
inside?

"A. After doing a walk-through, [Caver] had made piles of
my stuff on my bed that were – I'd say about two or three
different piles laying [sic] there.

"….

"Q. When you were speaking with [Caver] kind of 45
minutes prior at your sister's house, did you ever give
him permission to go into your home?

"A. No."

(R. 102-11.)

On cross-examination, McCombs conceded that his testimony was

more detailed than the information he had provided during his 911 call,

to the responding officer, and in his written statement. Specifically,

McCombs testified that he had not previously mentioned that he had

seen Caver "rifling through a box of [his] belongings" (R. 116), that "Caver

saw [him]" looking through the window (R. 117), that he had found his

knife where Caver's car had been sitting, or that Caver had made "piles

of [his] things on [the] bed." (R. 119.)

At the close of the State's evidence, Caver moved for a judgment of

acquittal, arguing that the State had not proven a prima facie case of

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CR-21-0333

third-degree burglary. The trial court denied that motion and then

proceeded with the charge conference, where the following colloquy

occurred:

"THE COURT: So let's go over [Caver's] requested jury
charges. …

"….

"THE COURT: [Caver's] Requested Charge No. 2,
evidence has been introduced in this case for the purpose of
impeaching certain witnesses and to discredit – where does
that come in?

"[THE STATE]: Judge, the State's argument is that no
one was impeached. There was never any impeachment done.
Refreshing recollection was done but never impeachment.

"THE COURT: There was never any impeachment
testimony presented at all.

"[DEFENSE COUNSEL]: Judge, if I may respond?

"THE COURT: Yes, ma'am.

"[DEFENSE COUNSEL]: A person may be impeached
with what they have said before. They may also be impeached
–

"THE COURT: Describe for me the circumstances in this
case. I know what impeachment is. Describe for me the
circumstances for which you're referencing in this case.

"[DEFENSE COUNSEL]: Yes, sir. McCombs testified
today that he saw Caver rifling through a box of things in his
home, and he also testified that he saw Caver make – see him.

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And those are the things to which he did not speak when he
spoke to the 911 operator, when he spoke to the responding
officer, or when he wrote his written statement. So his failure
to state those details and that information, that incredibly
incriminating information, prior to today in court.

"THE COURT: Okay. That's not impeachment. That is
where the jury can determine credibility of the witness,
whether they're telling the truth or not. And I completely
cover that in my credibility-of-witness statement.

"[DEFENSE COUNSEL]: Understood.

"THE COURT: So that is denied. Your exception is
noted."

(R. 131-33.) Caver was subsequently convicted of third-degree burglary

and thereafter filed a timely notice of appeal.

Discussion

On appeal, Caver raises two claims that, he says, require reversal

of his conviction. We address each claim in turn. 1

I.

Caver argues that the trial court erred by denying his motion for a

judgment of acquittal. In support of that argument, Caver contends that,

1Caver's brief sets forth three claims, but the first two claims both
challenge the sufficiency of the evidence. Thus, we address those two
claims together.
8
CR-21-0333

in two respects, the State's evidence was not sufficient to sustain a

conviction for third-degree burglary.

" ' " '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 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).' "

Stoves v. State, 238 So. 3d 681, 690-91 (Ala. Crim. App. 2017) (quoting

Wilson v. State, 142 So. 3d 732, 809 (Ala. Crim. App. 2010)).

Section 13A-7-7(a)(1), Ala. Code 1975, provides that "[a] person

commits the crime of burglary in the third degree if … [h]e or she

knowingly enters or remains unlawfully in a dwelling with the intent to

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CR-21-0333

commit a crime therein[.]" Section 13A-7-1(2), Ala. Code 1975, defines a

"dwelling" as "[a] building which is used or normally used by a person for

sleeping, living or lodging therein." 2

Caver's first challenge to the sufficiency of the evidence, which he

raised in his motion for a judgment of acquittal, is that the State failed

to prove that McCombs's mobile home was a "dwelling." In Ryan v. State,

865 So. 2d 1239 (Ala. Crim. App. 2003), this Court discussed those

structures that constitute a "dwelling" as that term is used in the

burglary statutes:

"In Foreman v. State, 546 So. 2d 977 (Ala. Crim. App.
1986), this Court noted:

" 'The legislature defined "dwelling" as "[a]
building which is used or normally used by a
person for sleeping, living or lodging therein." Ala.
Code (1975), § 13A-7-1(3). The Commentary to §
13A-7-1 states that the term dwelling "is restricted
to buildings used for sleeping and living." Thus,
we can only conclude that the legislature intended
that the term "dwelling" be construed narrowly to
encompass only those areas "normally used for
sleeping, living or lodging" and not be given the

2A person also commits third-degree burglary if he or she
"knowingly enters or remains unlawfully in an unoccupied building with
the intent to commit a crime therein." § 13A-7-7(a)(3). In this case,
however, the indictment alleged that Caver had entering a dwelling (C.
75), and the trial court charged the jury that, to convict Caver, it must
find that he had entered a dwelling. (R. 169.)
10
CR-21-0333

common law construction whereby outbuildings
within the curtilage of the dwelling proper would
be included.'

"546 So. 2d at 981. See also Woods v. State, 568 So. 2d 331,
333 (Ala. Crim. App. 1990) ('Under current law, the premises
must be a "dwelling," see § 13A-7-5(a), "which is restricted to
buildings used for sleeping and living." §§ 13A-7-5 through
13A-7-7, Commentary at 233 (emphasis added [in Woods]).');
and Ward v. State, 701 So. 2d 53 (Ala. Crim. App. 1996).
'Normally' is defined in Black's Law Dictionary 1059 (6th ed.
1990) as follows: '[a]s a rule; regularly; according to rule,
general custom, etc.' As the Commentary to § 13A-7-1 notes,
the statutory definition of a dwelling 'approximates' the
Alabama common-law definition. In 3 C. Torcia, Wharton's
Criminal Law § 325 (15th ed. 1995), it is stated that at
common law '[a] person "lives" in a structure if he uses it
regularly for the purpose of sleeping.' In R. Perkins and R.
Boyce, Criminal Law, p. 259 (3d ed. 1982), the authors noted:

" '[c]ertain it is that the dweller and his entire
household may be away for months, without
depriving the house of its character as his
dwelling. It was ruled in the 1500's, and often
repeated since, that a man may have two dwellings
at the same time actually used during alternate
periods and that burglary may be committed in the
one not being used at the moment, – such as a
winter home in the city and a summer cottage in
the mountains.'

"(Footnotes omitted.) And in Ex parte Vincent, 26 Ala. 145,
152 (1855), referenced in the Commentary to § 13A-7-1, the
Alabama Supreme Court stated that at common law a
building could be deemed a dwelling, in a burglarious sense,
if it is one in which a person 'usually or often' lodges at night.
See also Moore v. State, 35 Ala. App. 95, 44 So. 2d 262 (1950)
(construing T. 14, § 86, 1958 Code); and Hamilton v. State,

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354 So. 2d 27 (Ala. Crim. App. 1977) (construing T. 14, § 86,
Code of Alabama 1940 (Recomp.1958))."

Ryan, 865 So. 2d at 1242-43 (footnote omitted).

In support of his argument that the State failed to prove that

McCombs's mobile home was a "dwelling," Caver points to the undisputed

fact that McCombs was living with his sister at the time of the burglary,

and he argues that the State did not present any evidence indicating that

McCombs had ever lived in the mobile home. However, as this Court

explained in Ryan, the fact that McCombs was not living in the mobile

home at the time of the burglary does not in and of itself "depriv[e] the

[mobile home] of its character as his dwelling" because "a man may have

two dwellings at the same time." Ryan, 865 So. 2d at 1243 (citation

omitted). The question is whether McCombs regularly or normally used

the mobile home for sleeping, living, or lodging, regardless of whether he

was using it for those purposes at the time of the burglary. Id.

Despite Caver's argument to the contrary, the State presented

evidence tending to indicate that McCombs had lived in the mobile home

before moving into his sister's house and that he intended to live there

again. Specifically, McCombs described the property on which the mobile

home sits as the place where he "live[s]" and described the mobile home

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CR-21-0333

as his "house" (R. 99), and he testified that his "stuff," including his bed,

"was still in [his] house" while he was living with his sister. McCombs

also testified that he was living with his sister only because he was

"currently out of work" and was "doing work on [his] home," which, given

that much of his personal property was still in the mobile home, suggests

that the mobile home was McCombs's primary residence and that he was

living with his sister only temporarily. In addition, McCombs testified

that he had "cut off" the utilities in the mobile home to conserve money,

which, when considered in conjunction with McCombs's other testimony,

further suggests that he had been living in the mobile home with operable

utilities before he moved into his sister's house.

As noted, when reviewing the sufficiency of the evidence, this Court

must accord the State all legitimate inferences from the evidence, and

the evidence cited above supported a legitimate inference that McCombs

had been living in the mobile home before he moved into his sister's house

and that he intended to live in the mobile home again when he gained

employment and completed the "work" on the mobile home. Thus,

according the State all legitimate inferences from the evidence, the jury

could have found beyond a reasonable doubt that McCombs's mobile

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home was a "dwelling" as that term is used in the burglary statutes,

despite the fact that McCombs was not living in the mobile home at the

time of the burglary. As this Court noted in Ryan, a person may be away

from his home for an extended period, even months or years at a time,

"without depriving the house of its character as his dwelling." Ryan, 865

So. 2d at 1243 (citation omitted). See also Hamilton v. State, 354 So. 2d

27, 30 (Ala. Crim. App. 1977) ("We cannot say that the status of [the

victim's] house as a dwelling was lost by [the victim's] failure to live there

for a period of a year and a half prior to the burglary. No definite period

of time, however long, is the criterion. The intention to return or not to

return is determinative."); and Moore v. State, 35 Ala. App. 95, 97, 44 So.

2d 262, 264 (1950) (" 'A house is no less a dwelling house because at

certain periods the occupier quits it, or quits it for a temporary purpose.' "

(quoting Schwabacher v. People, 165 Ill. 618, 627, 46 N.E. 809, 812

(1897))).

Caver's reliance on Foreman v. State, 546 So. 2d 977 (Ala. Crim.

App. 1986), is misplaced. In Foreman, this Court held that "outbuildings

within the curtilage of [a] dwelling," such as the garage at issue in that

case, are not part of the dwelling. Foreman, 546 So. 2d at 981. According

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to Caver, McCombs's mobile home was comparable to a garage because,

he says, "the State presented no evidence that McCombs regularly used

[the mobile home] for anything other than storage." (Caver's brief, p. 16.)

However, we have already concluded that the State's evidence supported

a reasonable inference that McCombs had been living in the mobile home

before he moved into his sister's house. Thus, we are unpersuaded by

Caver's attempt to equate McCombs's mobile home to a garage or other

structure used solely for storage.

Caver's second challenge to the sufficiency of the evidence, which

he also raised in his motion for a judgment of acquittal, is that the State

failed to prove that he entered McCombs's mobile home with the intent

to commit a theft therein. It is well settled that the element of intent

" ' " 'is rarely, if ever, susceptible of direct or positive proof, and must

usually be inferred from the facts testified to by witnesses and the

circumstances as developed by the evidence.' " ' " Connell v. State, 7 So.

3d 1068, 1089 (Ala. Crim. App. 2008) (quoting French v. State, 687 So. 2d

202, 204 (Ala. Crim. App. 1995), quoting in turn McCord v. State, 501 So.

2d 520, 528-29 (Ala. Crim. App. 1986), quoting in turn Pumphrey v. State,

156 Ala. 103, 47 So. 156, 157 (1908)). For that reason, " ' "the question of

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a defendant's intent at the time of the commission of the crime is usually

an issue for the jury to resolve." ' " Connell, 7 So. 3d at 1089 (quoting

Hallford v. State, 548 So. 2d 526, 534 (Ala. Crim. App. 1988), quoting in

turn Connolly v. State, 500 So. 2d 57, 63 (Ala. Crim. App. 1985)).

McCombs testified that he saw Caver "going through a box of stuff

in [his] bedroom," and he testified that he found one of his knives, which

he had left inside the mobile home, on the ground where Caver's car had

been sitting. That testimony provided a sufficient basis upon which the

jury could have found beyond a reasonable doubt that Caver entered

McCombs's mobile home with the intent to commit a theft therein. See

Holmes v. State, 497 So. 2d 1149, 1153 (Ala. Crim. App. 1986) (holding

that there was sufficient evidence to prove that the defendant had

intended to commit a theft in the victim's house because the victim had

testified that "he actually saw the [defendant] in his house going through

some billfolds and papers").

The State presented evidence sufficient to prove beyond a

reasonable doubt that McCombs's mobile home was a "dwelling" as that

term is used in the burglary statutes and that Caver entered the mobile

home with the intent to commit a theft therein. Thus, the trial court did

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not err by denying Caver's motion for a judgment of acquittal and

submitting the third-degree-burglary charge to the jury.

II.

Caver argues that the trial court erred by refusing to instruct the

jury on impeachment. In support of that argument, Caver notes that

McCombs's testimony included several facts "that were not present when

he spoke to the 911 operator, the responding officer, and when he

provided a written statement." (Caver's brief, p. 22.) Thus, according to

Caver, McCombs's testimony was inconsistent with his prior statements,

and, as a result, the trial court should have instructed the jury on

impeachment. In reviewing this claim, we are mindful that a trial court

has broad discretion in formulating its jury instructions. Albarran v.

State, 96 So. 3d 131, 186 (Ala. Crim. App. 2011).

It is an axiomatic principle of law that a witness's testimony may

be impeached by his prior inconsistent statement, Petersen v. State, 326

So. 3d 535, 592 (Ala. Crim. App. 2019), but nothing in McCombs's

testimony was expressly inconsistent with his prior statements. Instead,

as Caver concedes, McCombs merely testified to facts that he had omitted

from those statements.

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In Bradley v. State, 501 So. 2d 1271 (Ala. Crim. App. 1986), this

Court discussed the standard for determining whether a witness's

testimony is "inconsistent" with his prior statement when the statement

merely omitted facts that the witness included in his testimony:

" 'It is, of course, an elementary rule of evidence that prior
statements may be used to impeach the credibility of a
criminal defendant or an ordinary witness. But this can be
done only if the judge is satisfied that the prior statements
are in fact inconsistent.' Grunewald v. United States, 353
U.S. 391, 418, 77 S. Ct. 963, 981, 1 L. Ed. 2d 931 (1957);
Annot., 40 A.L.R. Fed. 629, § 3(a) (1978). 'A prior statement
of a witness, in order to be provable for the purpose of
impeachment, must be contradictory of or inconsistent with
his testimony.' Lester v. Jacobs, 212 Ala. 614, 617, 103 So.
682 (1925). See also Helton v. Alabama Midland R. Co., 97
Ala. 275, 12 So. 276, 284 (1893); Morris v. State, 25 Ala. App.
175, 177-78, 142 So. 685 (1932). ….

" 'A witness may be impeached by a prior statement from
which there was an omission of something important which
would be natural to mention in the framework of that
statement and which was testified to by the witness at the
trial. But a prior statement is not inconsistent merely
because it is not as complete as the testimony of the witness
at trial.' 81 Am. Jur. 2d Witnesses § 597 (1976). 'Whether
such inconsistency actually exists should be determined not
from single or isolated answers, but from the testimony of the
witness as a whole; and the question of contradiction is
whether or not the proffered statement and the testimony of
the witness lead to inconsistent conclusions, indicating that
the differing expressions of the witness appear to have been
based on incompatible beliefs.' 98 C.J.S. Witnesses § 583
(1957)."

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Bradley, 501 So. 2d at 1272-73 (emphasis added).

In arguing for an impeachment instruction, defense counsel cited

two facts in McCombs's testimony that had been omitted from his prior

statements: that McCombs had seen Caver "rifling through a box of [his]

belongings" and that Caver had seen McCombs looking at him through a

window. 3

As to McCombs's testimony that he had seen Caver "rifling through

a box of [his] belongings," that fact was relevant because it tended to

prove Caver's intent to commit a theft. However, whether McCombs's

omission of that fact from his prior statements gave rise to an

inconsistency hinged on whether his testimony and the statements "lead

to inconsistent conclusions" or demonstrate that McCombs held

"incompatible beliefs." Bradley, 501 So. 2d at 1273 (citation omitted).

See also Commonwealth v. Condon, 99 Mass. App. Ct. 27, 35, 162 N.E.3d

3On appeal, Caver cites two other facts in McCombs's testimony
that had been omitted from his prior statements: that McCombs "had not
previously mentioned piles of things on his bed" and "had told no one
about finding a knife." (Caver's brief, pp. 22-23.) However, when arguing
for an impeachment instruction, defense counsel did not cite those
omissions, and, thus, we do not consider them in determining whether
the trial court erred by refusing to give the instruction. See Campos v.
State, 217 So. 3d 1, 9 (Ala. Crim. App. 2015) (noting that this Court's
review is limited to the arguments presented to the trial court).
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76, 83 (2020) (noting that a witness's prior statement is inconsistent with

his testimony "if its implications tend in a different direction" (citation

omitted)).

In his 911 call, McCombs stated that Caver had "broke[n] in[to]

[his] house" (State's Exhibit 1), which indicated that Caver had entered

the mobile home unlawfully. McCombs's oral statement to the

responding officer is not included in the record, but McCombs testified

that the officer asked him to "do a walk-through and see if anything was

missing" (R. 118), which suggests that McCombs had explained that

Caver had entered the mobile home unlawfully and that he was

concerned that Caver had stolen something. McCombs's written

statement is also not included in the record, but McCombs testified that

the written statement was simply "a very short summary of the entire

event" (R. 120), and there is nothing to indicate that the information in

that summary was any different than the information McCombs had

provided in his 911 call and to the responding officer.

Based on the record developed at trial, it appears that both

McCombs's testimony and his prior statements supported the same

conclusion and demonstrated compatible beliefs – namely, that Caver

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had unlawfully entered McCombs's mobile home and had attempted to

commit a theft therein. Thus, although McCombs's testimony that he

had seen Caver "rifling through a box of [his] belongings" provided

additional support for the conclusion that Caver had attempted to

commit a theft, nothing about that testimony was inconsistent with

McCombs's prior statements. See Pradia v. McCollum, No. CIV-13-385-

D, May 10, 2016 (W.D. Okla. 2016) (not reported in Federal Supplement)

(holding that an impeachment instruction was not required in a case

where both the victim's testimony and her prior statement to the police

indicated that the petitioner had robbed her, even though she had not

stated in her police report that the petitioner had been armed with a gun

but testified at trial that he had been armed with a gun). Compare

United States v. Fonville, 422 Fed. App'x 473 (6th Cir. 2011) (not selected

for publication in the Federal Reporter) (holding that the defendant's

testimony and his prior statements were inconsistent because his

testimony indicated that he had assaulted a prison official only because

he believed the official was about to assault him, but his prior statements

included no mention of an imminent assault by the official and, instead,

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supported the incompatible belief that he had assaulted the official for

other reasons).

As to McCombs's testimony that Caver had seen him looking

through a window, that fact was not material. The issue for the jury to

decide was whether Caver had unlawfully entered McCombs's mobile

home with the intent to commit a crime therein. Whether Caver saw

McCombs when McCombs looked through a window had no bearing on

that issue. Thus, McCombs's omission of that fact from his prior

statements did not give rise to an inconsistency between his testimony

and the statements. See Bradley, 501 So. 2d at 1273 (noting that a

witness "may be impeached by a prior statement from which there was

an omission of something important" (emphasis added; citation omitted)).

See also United States v. Williams, 740 F. Supp. 2d 10, 11 (D.D.C. 2010)

(noting that "[a]n inconsistency may exist where the prior statement

omits an important fact mentioned during testimony" (emphasis added;

citation omitted)); and Devalon v. Sutton, 344 So. 3d 30, 32 (Fla. Dist. Ct.

App. 2022) (noting that "a witness may be impeached by a prior

inconsistent statement, including an omission in a previous out-of-court

statement about which the witness testifies at trial, if it is material"

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CR-21-0333

(second emphasis added; citation omitted)). Furthermore, to the extent

that fact was material, its omission from McCombs's prior statements did

not require an impeachment instruction for the same reason that the

previously discussed omission did not require such an instruction.

Based on the foregoing, the trial court did not abuse its broad

discretion by concluding that McCombs's testimony had not been

impeached by his prior statements and that an impeachment instruction

was therefore unnecessary. Thus, Caver is not entitled to relief on this

claim.

Conclusion

Caver has not demonstrated that any error occurred in his trial.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

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

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