HINKLE v. STATE (2010)

The appellant, Allen Hinkle, was convicted of one count of murder, a violation of § 13A-6-2, Ala.Code 1975, and one count of attempted murder, a violation of §§ 13A-4-2 and 13A-6-2, Ala.Code 1975. The trial court sentenced Hinkle to life imprisonment for the murder conviction and to 99 years' imprisonment for the attempted-murder conviction. Hinkle was also ordered to pay restitution and to pay an assessment to the Crime Victims Compensation Fund.

Because Hinkle does not challenge the sufficiency of the State's evidence, a brief recitation of the facts will suffice. Hinkle was arrested and charged with murder for the shooting death of Caneshua Henry, the mother of Hinkle's child, and attempted murder for the non fatal shooting of Caneshua Henry's cousin, Kimyatta Henry. The shootings occurred early in the morning on October 5, 2008, at Kimyatta Henry's apartment complex. Kimyatta testified that Hinkle traveled to Caneshua's apartment the previous evening to bring diapers to Caneshua for her and Hinkle's child. Kimyatta arrived at Caneshua's apartment at approximately 11:00 p.m. that evening. When she arrived, Caneshua told her that Hinkle had “got into it with somebody in the breezeway.” (R. 87.) Kimyatta testified that Caneshua was upset at Hinkle because of this altercation and had ordered Hinkle to leave.

Kimyatta left Caneshua's apartment a little while later; as she was walking to her car, Hinkle walked past her heading toward Caneshua's apartment. A few moments later, Kimyatta heard a “pow” sound in the breezeway of the apartment. (R. 92.) Hinkle then approached her and said, “What? You trying to protect her?” and shot Kimyatta in the right cheek. (R. 92.)

Officer Tekulve Bowden of the Birmingham Police Department was patrolling the Center Point neighborhood of Birmingham when he was flagged down by Kimyatta outside the apartment complex in which the shootings occurred. Kimyatta informed Officer Bowden that Hinkle had shot her in the face and that he had killed Caneshua. Kimyatta pointed Officer Bowden toward Hinkle, who was standing next to a car in the apartment parking lot, and Officer Bowden arrested Hinkle and placed him in the back of his police cruiser. According to Officer Bowden, Hinkle-while he was in custody-made the following unsolicited statement: “Fuck this shit. She had it coming. She did me wrong. I was dead anyway. Give me the electric chair.” (R. 78-79.)

After both sides rested and the court instructed the jury on the applicable law, the jury found Hinkle guilty on all charges set out in the indictments. This appeal followed.

I.

On appeal, Hinkle argues that the trial court erred when it allowed the State to introduce testimony regarding an incident that occurred a few weeks before Caneshua Henry's death in which Hinkle repeatedly hit Caneshua in the face. Specifically, Hinkle contends that the testimony was inadmissible evidence of a collateral bad act and that it was not admissible under the intent exception to Rule 404(b), Ala. R. Evid.

Before trial, the State filed notice of its intent to introduce evidence of an incident that occurred on September 15, 2007, in which Hinkle allegedly assaulted Caneshua Henry. At trial, outside the presence of the jury, Monica Henry, Caneshua's sister, testified that approximately one month before Caneshua was killed, she visited Caneshua at her apartment to eat dinner and spend the night. Monica testified that while she and Caneshua were preparing dinner, Hinkle was “in and out” of the apartment. (R. 141.) Later, while Monica was showering, she heard Caneshua and Hinkle arguing. Caneshua came into the bathroom with Monica and asked her for her cellular telephone. Monica testified that Caneshua was angry and wanted to use Monica's cellular telephone to call the police. Hinkle came into the bathroom, stood between the women and the bathroom door, and continued arguing with Caneshua. Caneshua told Hinkle to get out of the bathroom, and Hinkle became angry and hit Caneshua. Monica explained that Hinkle hit Caneshua multiple times in the face with a closed fist before she was able to break up their fight and that Caneshua's face was bruised and swollen after the incident. Over Hinkle's objection, the trial court ruled that evidence of the incident was admissible to prove Hinkle's intent because intent was at issue in this case; it then allowed Monica to testify at trial about the incident.

“The admission or exclusion of evidence is a matter within the sound discretion of the trial court.” Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001). “The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). This is equally true with regard to the admission of collateral-acts evidence. See Davis v. State, 740 So.2d 1115, 1130 (Ala.Crim.App.1998).

Rule 404(b), Ala. R. Evid., provides, in part, that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” However, other crimes evidence “may ․ be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Rule 404(b), Ala. R. Evid.

In Stephens v. State, 982 So.2d 1110 (Ala.Crim.App.2005), rev'd on other grounds, Ex parte Stephens, 982 So.2d 1148 (Ala.2006), opinion on remand, Stephens v. State, 982 So.2d 1155 (Ala.Crim.App.2006), this Court addressed a factually similar claim in Stephens's capital-murder prosecution for the murder of his wife and son, Annie Lamb Stephens and Nicholas Lance Stephens. This Court explained:

“At trial, the State elicited testimony from Earnest Perry, the father of Annie Lamb Stephens, regarding an argument between his daughter and Stephens that culminated in Stephens's shooting Annie in the face and chest, resulting in Stephens's conviction for second-degree assault. The State then offered proof of Stephens's 1992 conviction for second-degree assault. Stephens argues that the trial court erred by allowing Perry to testify regarding a collateral bad act because, he says, such evidence violated the general exclusionary rule of Rule 404(b), Ala. R. Evid. Specifically, he contends that this evidence was not probative of any issue at trial, that it was offered solely to establish his bad character, that it did not fall within an exception to the exclusionary rule, and that the probative value of the evidence was outweighed by its potential prejudicial effect. He further argues that such evidence irreparably prejudiced his defense and tainted his trial, thus violating his constitutionally guaranteed right to a fair trial. The State argues that evidence of Stephens's 1992 conviction is admissible under several of the exceptions to the general exclusionary rule․

“․

“Alabama law has long recognized the admissibility of prior acts of hostility or abuse toward a victim in a prosecution where the defendant is charged with killing the individual at whom those acts were directed. We have held that:

“ ‘ “ ‘In a prosecution for murder, evidence of former acts of hostility between the accused and the victim are admissible as tending to show malice, intent, and ill will on the part of the accused.’ White v. State, 587 So.2d 1218, 1230 (Ala.Cr.App.1990), affirmed, 587 So.2d 1236 (Ala.1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 979, 117 L.Ed.2d 142 (1992).” Childers v. State, 607 So.2d 350, 352 (Ala.Cr.App.1992). “Acts of hostility, cruelty and abuse by the accused toward his homicide victim may be proved by the State for the purpose of showing motive and intent․ This is ‘another of the primary exceptions to the general rule excluding evidence of other crimes.’ “ Phelps v. State, 435 So.2d 158, 163 (Ala.Cr.App.1983). See also Baker v. State, 441 So.2d 1061, 1062 (Ala.Cr.App.1983).'

“Hunt v. State, 659 So.2d 933, 939 (Ala.Crim.App.1994). See Harris v. State, 489 So.2d 688 (Ala.Crim.App.1986) (prior acts of abuse toward child victim were admissible to show motive and intent to murder).

“ ‘The testimony concerning the appellant's other prior bad acts against the victim and her brother was also admissible as exceptions to the exclusionary rule. Evidence of these other bad acts was not admitted to show the appellant's bad character, but rather was admissible under the motive, intent, and common plan or scheme exceptions to the exclusionary rule.

“ ‘ “ ‘In a prosecution for murder, evidence of recent abuse to the child by the accused is admissible to show “intent, motive or scienter.” ․ Acts of hostility, cruelty, and abuse by the accused toward his homicide victim may be proved by the State for the purpose of showing motive and intent․ This is “another of the primary exceptions to the general rule excluding evidence of other crimes.” ‘ Phelps v. State, 435 So.2d 158, 163 (Ala.Cr.App.1983) (citations omitted). See also Baker v. State, 441 So.2d 1061, 1062 (Ala.Cr.App.1983).”

“ ‘Eslava v. State, 473 So.2d 1143, 1146 (Ala.Cr.App.1985). See also Burkett v. State, 439 So.2d 737, 748-49 (Ala.Cr.App.1983).’

“Harvey v. State, 579 So.2d 22, 26 (Ala.Crim.App.1990)․

“․

“In Robinson v. State, 528 So.2d 343 (Ala.Crim.App.1986), this Court discussed the purpose of the exclusionary rule, stating:

“ ‘ “ ‘On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he is being tried. This is a general exclusionary rule which prevents the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question.’ “ Pope v. State, 365 So.2d 369, 371 (Ala.Cr.App.1978), quoting C. Gamble, McElroy's Alabama Evidence § 69.01 (3d ed.1977). “ ‘This exclusionary rule is simply an application of the character rule which forbids the State to prove the accused's bad character by particular deeds. The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of the jurors.’ “ Ex parte Arthur, 472 So.2d 665, 668 (Ala.1985), quoting McElroy's supra, § 69.01(1). Thus, the exclusionary rule serves to protect the defendant's right to a fair trial. “ ‘The jury's determination of guilt or innocence should be based on evidence relevant to the crime charged.’ “ Ex parte Cofer, 440 So.2d 1121, 1123 (Ala.1983); Terrell v. State, 397 So.2d 232, 234 (Ala.Crim.App.1981), cert. denied, 397 So.2d 235 (Ala.1981); United States v. Turquitt, 557 F.2d 464, 468 (5th Cir.1977).

“ ‘ “If the defendant's commission of another crime or misdeed is an element of guilt, or tends to prove his guilt otherwise than by showing of bad character, then proof of such other act is admissible.” Saffold v. State, 494 So.2d 164 (Ala.Cr.App.1986). The well-established exceptions to the exclusionary rule include: (1) relevancy to prove identity; (2) relevancy to prove res gestae; (3) relevancy to prove scienter; (4) relevancy to prove intent; (5) relevancy to show motive; (6) relevancy to prove system; (7) relevancy to prove malice; (8) relevancy to rebut special defenses; and (9) relevancy in various particular crimes. Willis v. State, 449 So.2d 1258, 1260 (Ala.Cr.App.1984); Scott v. State, 353 So.2d 36 (Ala.Cr.App.1977). However, the fact that evidence of a prior bad act may fit into one of these exceptions will not alone justify its admission. “ ‘Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government's case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.’ “ Averette v. State, 469 So.2d 1371, 1374 (Ala.Cr.App.1985), quoting United States v. Turquitt, supra at 468-69. “ ‘ “Prejudicial” is used in this phrase to limit the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial.’ [Citation omitted.] ‘Of course, “prejudice, in this context, means more than simply damage to the opponent's cause. A party's case is always damaged by evidence that the facts are contrary to his contention; but that cannot be ground for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.” ‘ “ Averette v. State, supra, at 1374.’

“528 So.2d at 347. See also Hocker v. State, 840 So.2d 197, 213-14 (Ala.Crim.App.2002).

“․

“Addressing the admissibility of collateral-act evidence pursuant to the intent exception, Professor Gamble has written:

“ ‘If the accused is charged with a crime that requires a prerequisite intent, collateral crimes, acts or misconduct are admissible to show that the accused possessed the necessary intent. This rule is based upon the theory that because the unintentional doing of an act is abnormal and unusual, the more a person does other acts similar to the act in question, the greater the likelihood that the act in question was not done inadvertently. Whether the collateral act has a tendency to show that the accused did possess the prerequisite state of mind is, of course, one of relevancy vested largely in the discretion of the trial court.’

“1 C. Gamble, McElroy's Alabama Evidence § 69.01(5) (footnotes omitted).

“Stephens was charged with the intentional murder of two or more people by one act or pursuant to a one scheme or course of conduct. Although Stephens contends that intent was not at issue, the evidence indicates otherwise. Indeed, Stephens himself placed intent at issue by presenting evidence of alleged drug use and intoxication in an attempt to establish a lack of intent. Further, he requested that the jury be charged on the issue of intoxication; the trial court granted Stephens's request. Because Stephens elected to place intent at issue, the State was entitled to offer evidence of Stephens's 1992 conviction to establish intent as charged in the indictment.”

982 So.2d at 1123-29.

Hinkle was charged with the intentional murder of Caneshua Henry. Like the appellant in Stephens, Hinkle claims that intent was not at issue, but the record contradicts that argument. Before Monica Henry testified about Hinkle's prior assault of Caneshua Henry, Hinkle objected, arguing that intent was not at question in this case. The trial court rejected this assertion, explaining, “There is an issue which both sides have commented on, his intent. Did he intend to kill her?” (R. 151.) Additionally, Hinkle, in support of his motion for a judgment of acquittal, argued that the State failed to present evidence demonstrating that Hinkle intended to kill Caneshua. Hinkle also requested that the trial court instruct the jury on the lesser-included offense of manslaughter. Thus, to the extent Hinkle argues that intent was not at issue in this case, that claim is clearly refuted by the record.

Hinkle also argues that evidence of his hitting Caneshua on an earlier occasion was inadmissible on the grounds that his intent can be inferred by facts of the crime alone. Specifically, Hinkle contends that his use of a deadly weapon gives rise to the inference that he intended to kill Caneshua. Hinkle cites Hunter v. State, 802 So.2d 265 (Ala.Crim.App.2000), and Brewer v. State, 440 So.2d 1155 (Ala.Crim.App.1983), in support of the proposition that when intent can be inferred from the facts of the present prosecution, evidence of a collateral bad act is not admissible for the purpose of proving intent. In both cases, this Court reversed the convictions on the grounds that the collateral acts introduced at trial were inadmissible to prove intent. However, in both Hunter and Brewer, intent was not at issue because both defendants denied committing the acts for which they were accused. See, e.g., Hunter, 802 So.2d at 269 (“The defense did not claim that the offense occurred as a result of an accident, a misunderstanding, or a heated confrontation,”); Brewer, 440 So.2d at 1160 (“[T]here was no real dispute regarding the issue of criminal intent․ Either appellant committed the act, in which case his intent was evident from its brutality, or he did not commit the act, in which case his intent as shown by the earlier assault was immaterial.”). Here, Hinkle does not contend that he did not commit the acts in question; thus, intent is at issue. Unlike the factual situations in Hunter and Brewer, intent, therefore, cannot be inferred from the facts of the crime alone. Thus, to the extent that the holdings in Hunter or Brewer stand for the proposition that collateral acts are inadmissible in cases where a defendant contends he did not commit the act in question, these holdings have no bearing on this case because Hinkle admitted that he shot Caneshua Henry, thus putting the question of his intent at the time of the commission of the crime into evidence.

Furthermore, to the extent that Hinkle contends that the fact that he used a firearm to kill Caneshua Henry, in and of itself, established his intent to commit murder, we observe that contention is an incorrect statement of law. In Ex parte Burgess, 827 So.2d 193 (Ala.2000), the Alabama Supreme Court discussed the effect the presentation of evidence that a defendant used a deadly weapon may have upon establishing intent:

“An instruction that ‘intent to commit murder may be presumed from the defendant's act of using a deadly weapon,’ would unconstitutionally shift to the defendant the burden of proving lack of specific intent. Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991); and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The correct instruction on this particular point would be that intent to kill may be inferred from the defendant's act of using a deadly weapon. Sparks v. State, 261 Ala. 2, 75 So.2d 103 (1953); and Douglas v. State, 42 Ala.App. 314, 328, 163 So.2d 477, 490 (1963), overruled on other grounds, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).”

827 So.2d at 199 (some emphasis in original; some emphasis added).

By presenting evidence that Hinkle used a deadly weapon during the murder of Caneshua Henry, the State presented evidence from which the jury could infer that Hinkle acted intentionally. The introduction of this evidence did not conclusively resolve the issue of intent and foreclose the opportunity for the State to present additional evidence to show Hinkle's intent. Accordingly, the trial court properly admitted evidence of a collateral bad act under the intent exception of Rule 404(b), Ala. R. Evid., in order to prove Hinkle acted intentionally when he shot Caneshua Henry.

II.

Hinkle also contends that the trial court committed reversible error when it failed to instruct the jury of all the lesser-included offenses available for his murder and attempted-murder charges. Specifically, Hinkle contends that there was ample evidence to support a jury instruction of manslaughter as a lesser-included offense of murder and for first-degree assault as a lesser-included offense of attempted murder.

“A trial court has broad discretion in formulating its jury instructions, providing those instructions accurately reflect the law and the facts in the case.” Ingram v. State, 779 So.2d 1225, 1258 (Ala.Crim.App.1999), citing Raper v. State, 584 So.2d 544 (Ala.Crim.App.1991). “ ‘The trial court's refusal to give written requested charges does not constitute error when the charges are covered in the trial court's oral charge, are confusing or misleading, are inapplicable or abstract, or are an incorrect statement of the applicable law.’ “ Toles v. State, 854 So.2d 1171, 1175 (Ala.Crim.App.2002), quoting Stout v. State, 547 So.2d 894, 898-99 (Ala.Crim.App.1988). In McNabb v. State, 887 So.2d 929 (Ala.Crim.App.2001), this Court explained:

“ ‘ “A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury.” ‘ Williams v. State, 675 So.2d 537, 540-41 (Ala.Crim.App.1996), quoting Anderson v. State, 507 So.2d 580, 582-83 (Ala.Crim.App.1987).

“ ‘ “Whether a crime constitutes a lesser-included offense is to be determined on a case-by-case basis.” Aucoin v. State, 548 So.2d 1053, 1057 (Ala.Crim.App.1989). “In determining whether one offense is a lesser included offense of the charged offense, the potential relationship of the two offenses must be considered not only in the abstract terms of the defining statutes but must also ․ in light of the particular facts of each case.” Ingram v. State, 570 So.2d 835, 837 (Ala.Crim.App.1990) (citing Ex parte Jordan, 486 So.2d 485, 488 (Ala.1986); emphasis in original). See also Farmer v. State, 565 So.2d 1238 (Ala.Crim.App.1990).’

“Ford v. State, 612 So.2d 1317, 1318 (Ala.Crim.App.1992).”

887 So.2d at 974. Furthermore, § 13A-l-9(b), Ala.Code 1975, states that “[t]he 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.”

With these principles in mind, we turn to Hinkle's specific allegations.

A.

Hinkle argues that the trial court erred when it denied his request to instruct the jury on manslaughter as a lesser-included offense of murder. Specifically, Hinkle argues that sufficient circumstantial evidence existed to support such an instruction.

A person is not guilty of murder if “he or she was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself.” § 13A-6-2 (b), Ala.Code 1975 (emphasis added). It is well settled that even where the defendant commits the killing as a result of a sudden heat of passion, an instruction on manslaughter is properly refused where there is no evidence indicating that sudden heat of passion was caused by a provocation recognized by law. Harrison v. State, 580 So.2d 73, 74 (Ala.Crim.App.1991). In Rogers v. State, 819 So.2d 643 (Ala.Crim.App.2001) we explained:

“Alabama courts have, in fact, recognized three legal provocations sufficient to reduce murder to manslaughter: (1) when the accused witnesses his or her spouse in the act of adultery; (2) when the accused is assaulted or faced with an imminent assault on himself; and (3) when the accused witnesses an assault on a family member or close relative.”

819 So.2d at 662.

The trial court found that Hinkle had failed to present evidence of provocation, saying, “There's no self-defense. There's no heat of passion ․ there has been no testimony that this Court has received that in any way, shape, or form supports that this was an intentional act caused by provocation” (R. 229.) The trial court also stated, “From the testimony, as far as Ms. Caneshua Henry, it is my humble opinion that the testimony is either [Hinkle] intentionally caused her death, or he did not.” (R. 229.)

Hinkle claims that the facts surrounding the incident give rise to an inference that “something happened” that led Hinkle to shoot and kill Caneshua Henry in the heat of passion. (Hinkle's brief, at 26.) Hinkle references factors present before and after the shooting, but offers no explanation as to what provocation gave rise to the fatal impulse that led Hinkle to kill Caneshua Henry. Thus, Hinkle has failed to show that he presented sufficient evidence at trial to demonstrate that he was provoked into killing Caneshua Henry by one of the impetuses recognized in law. Accordingly, the trial court correctly refused to instruct the jury on the lesser-included offense of manslaughter.

B.

Hinkle also argues that the trial court committed reversible error when it refused to instruct the jury on first-degree assault as a lesser-included offense of attempted murder. Specifically, Hinkle contends that sufficient evidence of “serious physical injury” existed that would support a conviction for first-degree assault.

Initially, the State argues that Hinkle failed to preserve this issue for this Court's review. The trial court held the following discussion regarding which instructions it would give to the jury concerning lesser-included offenses of attempted murder:

“THE COURT: Now, with respect to lesser included charges, on the attempted murder charge involving Ms. Kimyatta Henry, [defense counsel], would you like to be heard on that?

“[Defense counsel]: Well, Judge, I think that taking them in either order that there would be logic for including either attempted manslaughter-

“․

“THE COURT: Well, there is no charge of attempted manslaughter, so we're talking about attempted murder or perhaps an assault in the second degree. For my hearing of the evidence, assault in the first degree would require serious physical injury, and while her injuries were definitely-I don't think they rise to the level of serious physical injury, [the State], so if you are requesting an assault in the second degree on Ms. Kimyatta Henry, I would agree to that.

“[Defense counsel]: Yes, ma‘am.

“THE COURT: But now attempted anything else other than the attempted murder I don't think is applicable because there was actually an injury, unless there's something that I am missing, which is always a possibility.

“[Defense counsel]: Assault in the second degree. Judge, as a lesser included on the attempted murder charge?

“THE COURT: Yes, sir. All right. That would be attempted murder and assault in the second degree.

(R. 227-28.) Hinkle did not immediately object to the trial court's refusal to instruct the jury on first-degree assault. During the discussion of whether the trial court should instruct the jury on any lesser-included offense of murder, the following exchange took place:

“[Defense counsel]: Well, if you wouldn't consider criminally negligent homicide [to be a lesser-included offense of murder], then manslaughter I would think certainly would be appropriate.

“THE COURT: But, [defense counsel], there has been no testimony that this Court has received that in any way, shape, or form supports that this was an intentional act caused by provocation or that this was a reckless act. I mean I understand that there's legal argument to that effect, but I have to look at what came in on testimony. And the State's witnesses said that he walked up and he shot her and then he turns to the other young woman and says, ‘You were trying to warn her,’ or something to that effect, if the State's case is to be believed. I heard nothing to indicate that it was reckless or nothing evidentiary wise, or that it was heat of passion.

“[Prosecutor], did you want to say something?

“[The State]: Judge, I think the State concurs with the Court that there was absolutely no testimony from the witness stand to suggest any type of provocation, any type of recklessness that would warrant any type of lesser included offense, specifically in the charge of murder of Ms. Caneshua Henry. And I think the Court is, of course, well versed and knows the law on that and has made an appropriate ruling in that case.

“THE COURT: Anything else you would like to put on the record, [defense counsel], about that? I would be more than happy to allow you to do that at this time.

“[Defense counsel]: Only my objection to not include a lesser included offense.

(R. 229-230; emphasis added.)

It is well settled that issues raised for the first time on appeal are not preserved for appellate review. Woods v. State, 845 So.2d 843, 846 (Ala.Crim.App.2002); Meadows v. State, 773 So.2d 1053, 1054 (Ala.Crim.App.2000). Further,

“No party may assign as error the court's giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection.”

Rule 21.3, Ala. R.Crim. P. Thus, its appears from the record that Hinkle objected only to the trial court's refusal to give an instruction for any lesser-included offense of murder, not for the trial court's failure to include an instruction of first-degree assault as a lesser-included offense of attempted murder. Because Hinkle made no objection regarding the trial court's attempted-murder instruction, the issue he now raises on appeal is not preserved for appellate review.

Moreover, even if Hinkle had properly preserved this issue for appellate review, we cannot say that the trial court erred in refusing a jury instruction on first-degree assault as a lesser-included offense of attempted murder. A person commits the crime of assault in the first degree if, 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 dangerous weapon. § 13A-6-20 (a)(1), Ala.Code 1975. Section 13A-1-2(14), Ala.Code 1975, defines “serious physical injury” as “[p]hysical 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.”

Hinkle contends that the evidence presented at trial was sufficient to support a finding of “serious physical injury.” However, none of the evidence presented at trial demonstrated that Kimyatta's injuries constituted “serious physical injury” as defined by § 13A-1-2(14). At trial, Kimyatta testified that Hinkle shot her in the right cheek; part of the bullet exited through her neck, and the other part remained lodged in her sinus area. Kimyatta did not realize that she had been shot until she felt the blood from the wound on her face. Kimyatta did not have surgery and denied having any long-term effects from the shooting. Additionally, medical records from Kimyatta's hospital visit indicated that she was admitted to and released from the hospital on the same day. Thus, the trial court properly determined that there was not sufficient evidence to demonstrate the victim suffered “serious physical injury” required to support a conviction of first-degree assault. Accordingly, the trial court did not err when it denied Hinkle's request to instruct the jury on first-degree assault as a lesser-included offense of attempted murder.

Based on the foregoing, the judgment of the trial court is due to be affirmed.

AFFIRMED.

KELLUM, Judge.

WISE, P.J., and WELCH, and WINDOM, JJ., concur. MAIN, J., concurs in the result.