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Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________
CR-2022-0571
_________________________
Kenneth Alan Vandusen
v.
State of Alabama
Appeal from Randolph Circuit Court
(CC-21-84)
McCOOL, Judge.
Kenneth Alan Vandusen appeals his convictions for abuse of a
corpse, a violation of § 13A-11-13, Ala. Code 1975, and obstructing justice
CR-2022-0571
by using a false identity, a violation of § 13A-8-194, Ala. Code 1975.1 The
trial court sentenced Vandusen, as a habitual felony offender, to
concurrent sentences of 20 years' imprisonment and then split the
sentences, ordering Vandusen to serve 5 years' imprisonment, to be
followed by 5 years' probation.
Facts
Devin Posey testified that, on July 29, 2020, he received a telephone
call from Vandusen and that Vandusen "was in a state of panic" (R. 95)
and told him that he "need[ed] his help" (R. 96) because he had "killed
[Stephanie Sikes]" (id.) after "she pulled [a] gun on [him]." (R. 97.)
According to Posey, Vandusen specifically said that he needed help
moving Sikes's body and said that, "if [Posey] wasn't able to help him, he
would have to cut [Sikes] up and move her." (R. 97-98.) However, Posey
refused to help and, instead, "told [his] mother everything" (R. 98), and
his mother telephoned the police.
1Vandusen was also convicted of tampering with physical evidence,
a violation of § 13A-10-129, Ala. Code 1975, but he has not challenged
that conviction on appeal. Vandusen was acquitted of murder, a violation
of § 13A-6-2, Ala. Code 1975.
2
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Sgt. Corey Parks of the Randolph County Sheriff's Office was then
dispatched to conduct a welfare check at Sikes's house, and, as he "was
pulling up in the driveway, Vandusen was approaching [his] vehicle." (R.
137-38.) Sgt. Parks asked Vandusen to identify himself, and, according
to Sgt. Parks, Vandusen twice "gave [him] the name of Devon Posey." (R.
138.) Police officer Roy Brown of the Wedowee Police Department, who
also responded to the scene, confirmed that Vandusen had "stat[ed] that
his name was Devon Posey." (R. 173.) At that point, Sgt. Parks
telephoned Posey's mother "to get some more information" (R. 144), and,
while he was on the telephone, Officer Brown conducted a pat-down
search of Vandusen and "found a Colorado ID belonging to a Kenneth
Vandusen" (R. 176); that identification card included Vandusen's
photograph. Sgt. Parks then handcuffed Vandusen and placed him into
his patrol car.
After securing Vandusen, Sgt. Parks and Officer Brown conducted
a "protective sweep" of Sikes's house. (R. 146.) During that protective
sweep, Sgt. Parks discovered a trial of blood that wound through the
residence, onto the back porch – which was covered by "dog or animal
feces everywhere" (R. 152) – down the porch steps, and through the
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backyard. That blood trail ultimately led to Sikes's body, which was
found near the back of her property beside "a chain-link fence at the wood
line" (R. 183), and her body, which had sustained multiple gunshot
wounds, "was in a wheelbarrow or … gardening wagon, and there was a
blanket over the wagon or wheelbarrow." (R. 184.) In addition to being
covered by a blanket, Sikes's body could not be seen from her house
because it was concealed by bushes (id.), a gate and "tall grass" (R. 189),
and a table. (R. 190.)
Discussion
Vandusen raises two claims on appeal that, he says, entitle him to
relief. We address each claim in turn.
I.
Vandusen argues that the State's evidence was not sufficient to
sustain his convictions for abuse of a corpse and obstructing justice by
using a false identity. In reviewing this claim, this 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." ' " Wilson v. State, 142 So. 3d 732, 809 (Ala.
Crim. App. 2010) (quoting Ballenger v. State, 720 So. 2d 1033, 1034 (Ala.
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CR-2022-0571
Crim. App. 1998), quoting in turn Faircloth v. State, 471 So.2d 485, 488
(Ala. Crim. App. 1984)). If, " ' "viewing the evidence in the light most
favorable to the prosecution, a rational finder of fact could have found
[Vandusen] guilty beyond a reasonable doubt," ' " then the evidence was
sufficient to sustain Vandusen's convictions. Wilson, 142 So. 3d at 809
(quoting Nunn v. State, 697 So. 2d 497, 498 (Ala. Crim. App. 1997),
quoting in turn O'Neal v. State, 602 So. 2d 462, 464 (Ala. Crim. App.
1992)).
A. Abuse of a Corpse
Section 13A-11-13(a) provides, in relevant part, that "[a] person
commits the crime of abuse of a corpse if, except as otherwise authorized
by law, he knowingly treats a human corpse in a way that would outrage
ordinary family sensibilities." According to Vandusen, the State failed to
prove that he violated § 13A-11-13 because, he says, the State "failed to
provide any evidence that [he treated Sikes's] corpse … in any manner
that would outrage ordinary family sensibilities." (Vandusen's brief, p.
15.) In support of that argument, Vandusen contends that there was no
evidence indicating that Sikes's corpse "had been disfigured or altered"
5
CR-2022-0571
or any other evidence "regarding the specific condition or treatment of
the body." (Id. at 14, 15.)
Except for one exception not relevant here, 2 the Alabama Criminal
Code does not provide any guidance as to what treatment of a corpse will
generally "outrage ordinary family sensibilities." § 13A-11-13(a). There
are also no Alabama cases that expressly address that issue, and the few
cases that mention § 13A-11-13 in other contexts involved treatment of a
corpse that obviously violates the statute. See, e.g., Lewis v. State, 889
So. 2d 623 (Ala. Crim. App. 2003) (sexual intercourse with a corpse); and
State v. Stephens, 203 So. 3d 134 (Ala. Crim. App. 2016) (burying a corpse
in an unmarked grave and later digging up the corpse, dismembering it,
and setting it on fire). However, cases from other jurisdictions, which
have similar abuse-of-a-corpse statutes, provide some guidance in this
appeal.
In Dougan v. State, 322 Ark. 384, 912 S.W.2d 400 (1995), the
Arkansas Supreme Court considered whether there was sufficient
2Section 13A-11-13(a) provides that abuse of a corpse "may include
knowingly and willfully signing a certificate as having embalmed,
cremated, or prepared a human body for disposition when, in fact, the
services were not performed as indicated."
6
CR-2022-0571
evidence to sustain the defendant's conviction for abuse of a corpse under
§ 5-60-101(a)(2), Ark. Code Ann., which, at that time, prohibited a person
from "knowingly … [p]hysically mistreat[ing] a corpse in a manner
offensive to a person of reasonable sensibilities." In that case, the
evidence indicated that the defendant gave birth to a stillborn baby in a
van and then instructed her 16-year-old daughter to drive the van to a
dumpster, where the defendant instructed her daughter to leave the
baby's body wrapped in a sheet. In considering whether § 5-60-101(a)(2)
encompassed such conduct, the Court first looked at § 250.10 of the Model
Penal Code, which provides that a person commits abuse of a corpse if he
"treats a corpse in a way that he knows would outrage ordinary family
sensibilities." Citing the commentary to the Model Penal Code, the Court
noted that such language was " 'sufficiently broad' " enough to include
" 'physical abuse, mutilation, gross neglect, or any other sort of
outrageous conduct.' " Dougan, 912 S.W.2d at 403 (quoting Model Penal
Code § 250.10, Comment 2 (1980)) (some emphasis omitted). The Court
also noted that the Arkansas Legislature had provided similar
commentary, explaining that § 5-60-101 had been drafted in language
broad enough to encompass not only "assaults on dead bodies but also
7
CR-2022-0571
lesser forms of mishandling, abuse, or even neglect." Dougan, 912 S.W.2d
at 405 (some emphasis omitted). Thus, the Court held "that the
legislature intended that § 5-60-101 cover [the defendant's] placement of
her baby's corpse in a dumpster, as such an act constituted a form of
mishandling, abuse or neglect," and affirmed her conviction. Dougan,
912 S.W.2d at 405.
In Dailey v. State, 101 Ark. App. 394, 278 S.W.3d 120 (2008), the
Arkansas Court of Appeals also held that there was sufficient evidence
to sustain the defendant's conviction for abuse of a corpse. In that case,
the evidence indicated that, after killing the victim in the defendant's
home, the defendant "wrapped the corpse in garbage bags and hid it
[under a tarp] in a 'junk room' where it began decomposing." Dailey, 278
S.W.3d at 122. The defendant argued on appeal that his conviction
should be overturned because, he said, he had "t[aken] no action which
was damaging to [the victim's] corpse." Id. at 121. The Court concluded,
however, that the facts of that case were "similar to Dougan in that both
charged parties attempted to hide dead bodies." Id. at 122. Thus, the
Court affirmed the defendant's conviction, holding that "attempt[ing] to
hide [a] dead bod[y] … involve[s] the mishandling or neglect of a corpse
8
CR-2022-0571
constituting physical mistreatment that would offend a person of
reasonable sensibilities." Id.
The Arkansas Supreme Court returned to this issue in Williams v.
State, 468 S.W.3d 776 (Ark. 2015). In that case, the evidence indicated
that the victim had been asphyxiated, and, although the defendant
denied killing the victim, he admitted that he had "carried her outside of
his house and buried her." Id. at 778. The defendant argued, however,
that there was no evidence indicating that he had "mutilated" or
"mistreated" the corpse – a fact that, he said, indicated that he had not
committed the offense of abuse of a corpse. Id. at 778. The Court rejected
that argument and affirmed the defendant's conviction for abuse of a
corpse, explaining that the jury could have found that, by burying the
corpse on his own property, the defendant had "conceal[ed] [the victim's]
body" in a way that was "outside the normal practices of handling or
disposing of a corpse." Id. at 782.
More recently, the Arkansas Supreme Court reached the same
conclusion in Cone v. State, 654 S.W.3d 648 (2022). In that case, the
evidence indicated that the defendant murdered the victim in the victim's
residence and then "cover[ed] her with bedding" and left her in the
9
CR-2022-0571
residence. Id. at 656. The Arkansas Supreme Court held that such
evidence was sufficient to sustain the defendant's conviction for abuse of
a corpse because, the Court reasoned, the defendant had "conceal[ed] the
victim in her residence by covering her with bedding," and his "decision
to leave [the victim] on the chaise lounge, decomposing, could reasonably
be found by a jury to be a course of conduct that would be offensive to a
person of reasonable sensibilities." Id.
At least two other courts outside Arkansas have also held that
evidence indicating that the defendant had concealed a corpse was
sufficient to sustain a conviction for abuse of a corpse.
In Commonwealth v. Hutchison, 164 A.3d 494 (Pa. Super. Ct. 2017),
the Pennsylvania Superior Court considered whether there was
sufficient evidence to sustain the defendant's conviction for abuse of a
corpse under 18 Pa. C.S.A. § 5510, which prohibits a person from
"treat[ing] a corpse in a way that [the defendant] knows would outrage
ordinary family sensibilities." Before addressing the evidence, the Court
noted that it had previously considered whether " 'a person who
knowingly leaves a corpse to rot, without making arrangements for a
proper burial[,] has treated a corpse in a way that she knows would
10
CR-2022-0571
outrage ordinary family sensibilities' " and had held that such treatment
constituted abuse of a corpse. Hutchison, 164 A.3d at 498 (quoting
Commonwealth v. Smith, 389 Pa. Super. 606, 611, 567 A.2d 1070, 1073
(1989)). This was so, the Court had previously reasoned, because § 5510
had been drafted " 'in very broad and general language … to ensure that
offenses such as concealing a corpse came under the purview of the
statute.' " Hutchison, 164 A.3d at 498 (quoting Smith, 567 A.2d at 1073).
Thus, the Court held that there was sufficient evidence to sustain the
defendant's conviction in Hutchison because the evidence indicated that,
after discovering that his roommate had died of a drug overdose in their
apartment, the defendant had waited two days to notify the police and,
by doing so, had "concealed [the roommate's] corpse from authorities so
that she could not receive a proper burial." Id. at 498.
In State v. Whitaker, [No. 2019-1482, Aug. 18, 2022] ___ Ohio St.
3d ___, ___, ___ N.E.3d ___, ___ (Ohio 2022), the Ohio Supreme Court
considered whether there was sufficient evidence to sustain the
defendant's conviction for abuse of a corpse under § 2927.01(B), Ohio Rev.
Code Ann., which prohibits a person from "treat[ing] a human corpse in
a way that would outrage reasonable community sensibilities." In that
11
CR-2022-0571
case, the evidence indicated that the defendant raped the victim in a
vacant house, murdered her, and then left her corpse in a closet. The
defendant argued that his conviction for abuse of a corpse should be
overturned because, he said, there was "no evidence showing that he
inflicted any injury on [the victim's] corpse." Whitaker, ___ Ohio St. 3d
at ___, ___ N.E.3d at ___. The Court explained, however, that §
2927.01(B) " 'proscribes a broad range of conduct' " that encompasses "an
attempt to conceal a body" and thus affirmed the defendant's conviction
based on the evidence indicating that he had left the victim's corpse in
the vacant house. Id. (quoting State v. Condon, 152 Ohio App. 3d 629,
648, 789 N.E.2d 696, 711 (2003)). See also State v. Nobles, 106 Ohio App.
3d 246, 267, 665 N.E.2d 1137, 1150 (1995) (noting that "abuse of a corpse
can apparently be found in any attempt to conceal a body").
We find the reasoning of these courts to be persuasive. A defendant
who knowingly conceals a corpse, "without making arrangements for a
proper burial[,] has treated a corpse in a way that [he or] she knows
would outrage ordinary family sensibilities." Hutchison, 164 A.3d at 498
(citation omitted). Thus, by proscribing any treatment of a corpse that
"would outrage ordinary family sensibilities," § 13A-11-13(a), the
12
CR-2022-0571
Alabama Legislature used language broad enough to "ensure that
offenses such as concealing a corpse c[o]me under the purview of the
statute." Hutchison, 164 A.3d at 498 (citation omitted). We therefore
hold that evidence indicating that a defendant knowingly concealed a
corpse is evidence that will support a finding that the defendant violated
§ 13A-11-13.
Returning to the case at hand, the evidence indicated that
Vandusen intended to conceal Sikes's corpse because he told Posey that,
"if [Posey] wasn't able to help him, he would have to cut [Sikes] up and
move her." The evidence also indicated that, after Posey refused to help
him, Vandusen dragged Sikes's corpse out of her house, across the back
porch, down the porch steps, and through the backyard to the rear of the
property, where he left the corpse in a wheelbarrow, hidden from view by
a blanket and other objects. That evidence was sufficient to prove that
Vandusen knowingly concealed Sikes's corpse and was therefore
sufficient to sustain his conviction for abuse of a corpse. Although
Vandusen claims that there was no evidence indicating that he
"disfigured or altered" Sikes's corpse, we agree with those courts that
have concluded that such evidence was not required. Vandusen's
13
CR-2022-0571
concealment of Sikes's corpse was sufficient, in and of itself, to support a
conviction for abuse of a corpse.
We do note, however, that there was additional evidence to support
Vandusen's abuse-of-a-corpse conviction. As we have already noted, the
evidence indicated that Vandusen dragged Sikes's corpse across her back
porch, and Sgt. Parks testified that animal feces were "everywhere" on
the porch. Thus, a reasonable inference to draw from the evidence was
that Vandusen dragged Sikes's corpse through the animal feces. See
Wilson, 142 So. 3d at 809 (noting that, in reviewing the sufficiency of the
evidence, this Court must "accord the State all legitimate inferences"
from the evidence (citations omitted)). Certainly, a defendant's act of
dragging a human corpse through animal feces is conduct that "would
outrage ordinary family sensibilities." § 13A-11-13(a). For this reason
as well, the evidence was sufficient to sustain Vandusen's conviction for
abuse of a corpse.
We acknowledge Vandusen's argument that "[n]o family members
of the deceased testified at trial to … any outrage regarding the …
treatment of [Sikes's] body." (Vandusen's brief, p. 15.) However, § 13A-
11-13(a) provides that a person violates the statute if his treatment of a
14
CR-2022-0571
corpse "would outrage ordinary family sensibilities." (Emphasis added.)
In other words, § 13A-11-13(a) sets forth an objective standard by which
to judge the defendant's treatment of a corpse, which means that the
State is not required to present evidence indicating that the deceased's
family was in fact subjectively outraged by the defendant's conduct. See
Dougan, 912 S.W.2d at 403-04 (noting that, in determining whether the
defendant's treatment of a corpse is outrageous, " '[t]he standard is
objective; it does not vary either to exculpate on the basis of the actor's
unusual callousness or to condemn for outraging an excessively delicate
relative of the deceased' " (quoting Model Penal Code, § 250.10, Comment
2)). Here, we have already concluded that the evidence supported a
finding that Vandusen concealed Sikes's corpse, as well as a finding that
he dragged the corpse through animal feces, and such treatment of a
corpse, judged objectively, constituted abuse of a corpse, regardless of
whether Sikes's family was in fact outraged by Vandusen's conduct.
B. Obstructing Justice by Using a False Identity
Section 13A-8-194(a) provides that "[a] person commits the crime of
obstructing justice using a false identity if he or she uses identification
documents or identifying information of another person or a fictitious
15
CR-2022-0571
person to avoid summons, arrest, prosecution, or to impede a criminal
investigation." In this case, the evidence indicated that Vandusen twice
provided another person's name when Sgt. Parks arrived at Sikes's house
and asked him to identify himself. Vandusen argues, though, that
providing another person's name to Sgt. Parks did not violate § 13A-8-
194 because, he says, "no actual obstruction" of justice occurred, given
that Officer Brown quickly ascertained his true name, at which point he
"was promptly arrested, and law enforcement's investigation continued."
(Vandusen's brief, p. 17.)
However, § 13A-8-194 "applies … to actions that are done for the
purpose of avoiding summons, arrest, or prosecution or to impede a
criminal investigation." Hyshaw v. State, 893 So. 2d 1239, 1242 (Ala.
Crim. App. 2003) (emphasis added). In other words, the question is not
whether the defendant successfully obstructed justice but, rather,
whether the defendant attempted to obstruct justice. Indeed, the plain
language of § 13A-8-194 provides that a person violates the statute if he
uses false information to obstruct justice, not that he violates the statute
if he uses false information and does obstruct justice. See Hyshaw, 893
So. 3d at 1245 (holding that the defendant violated § 13A-8-194 by giving
16
CR-2022-0571
a false name to law enforcement officers in an attempt to avoid arrest,
even though the officers later determined that the name was false).
In this case, Posey testified that Vandusen telephoned him and
admitted to killing Sikes. Later that day, Sgt. Parks went to Sikes's
house to conduct a welfare check, and Vandusen, who was already there,
twice told Sgt. Parks that his name was Devin Posey. Given that
evidence, the jury could have reasonably inferred that, when Vandusen
saw Sgt. Parks arrive, he knew Posey had reported Sikes's death and that
he used Posey's name in order to appear as though he was the person who
had reported her death and to avoid being arrested for her murder. Thus,
the evidence was sufficient to sustain Vandusen's conviction for
obstructing justice by using a false identity.
II.
Vandusen argues that the trial court imposed illegal split sentences
for his abuse-of-a-corpse conviction and his obstructing-justice-by-using-
a-false-identity conviction. The State concedes that the split portions of
those sentences are illegal and that remand is necessary for the trial
court to correct the sentences. We agree.
17
CR-2022-0571
Abuse of a corpse and obstructing justice by using a false identity
are Class C felonies. See § 13A-11-13(b) and § 13A-8-194(b). As noted,
the trial court sentenced Vandusen to 20 years' imprisonment for his
convictions for those offenses and then split the sentences, ordering him
to serve 5 years' imprisonment, to be followed by 5 years' probation.
However, the Split Sentence Act, codified at § 15-18-8, Ala. Code 1975,
provides that, when a defendant is convicted of a Class A, Class B, or
Class C felony and receives a sentence "of greater than 15 years but not
more than 20 years," the trial court may order that the defendant "be
confined in a prison, jail-type institution, or treatment institution for a
period of three to five years for Class A or Class B felony convictions and
for a period of three years for Class C felony convictions." § 15-18-8(a)(2)
(emphasis added).
"Based on the plain meaning of subsection 15-18-8(a)(2), … [w]hen
[the trial court] decided to split [Vandusen's] 20-year sentences for his
[C]lass C felony convictions, the [trial] court had to impose 3-year split
terms on those sentences." Smith v. State, 334 So. 3d 250, 257 (Ala. Crim.
App. 2020). Thus, we must remand the case to the trial court for that
court to limit the split portion of each of Vandusen's 20-year sentences to
18
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3 years. See Bishop v. State, [Ms. CR-20-0976, Sept. 2, 2022] ___ So. 3d
___, ___ (Ala. Crim. App. 2022) (holding that the defendant had been
illegally ordered to serve a split sentence of 5 years' imprisonment on a
20-year sentence for a Class C felony and remanding the case for the trial
court to "limit the split portion of [his] sentence to three years"). We note,
though, that Vandusen's base sentences of 20 years' imprisonment are
legal (because he was sentenced as a habitual felony offender, see § 13A-
5-9, Ala. Code 1975), and therefore may not be changed. Born v. State,
331 So. 3d 626, 638 (Ala. Crim. App. 2020). The trial court shall take all
necessary steps to ensure that due return is made to this Court within
42 days of the date of this opinion, and the return to remand shall include
a transcript of the sentencing hearing and the court's amended
sentencing order.
Conclusion
Vandusen has not demonstrated that he is entitled to relief from
his abuse-of-a-corpse conviction or his obstructing-justice-by-using-a-
false-identity conviction. Thus, we affirm those convictions. However,
because the split portions of Vandusen's sentences exceed three years, we
19
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remand the case for the trial court to impose split sentences that comply
with § 15-18-8(a)(2).
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
WITH INSTRUCTIONS.
Windom, P.J., and Kellum, J., concur. Cole and Minor, JJ., concur
in the result.
20