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Allaben v. State

The defendant's convictions for malice murder, felony murder, aggravated assault with intent to murder and simple battery were mutually exclusive of his conviction for reckless conduct.

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Appellant Dennis Allaben was found guilty of malice murder, felony murder, aggravated assault with intent to murder, battery, simple battery, and reckless conduct in connection with the strangulation death of his wife, Maureen Allaben.1 The felony murder verdict was vacated by operation of law, and the trial court entered a judgment of conviction only for malice murder, merging the remaining verdicts into that conviction. On appeal, Allaben contends, among other things, that the jury returned mutually exclusive verdicts. Because we conclude that the guilty verdict on reckless conduct was mutually exclusive of the remaining verdicts, we reverse Allaben’s conviction for malice murder, set aside all the guilty verdicts, and remand the case for further proceedings.

1. Viewed in the light most favorable to the verdicts, the evidence shows that on January 3, 2010, Allaben strangled the victim to death. He rolled her body up in blankets that he secured with duct tape and placed her in the back of his pickup truck. He drove his two children, who were seven and eight years old, to his brother’s house in Virginia, telling them on the way that he had killed their mother. In Virginia, he also told his sister-in-law that he had killed his wife. He said that she was engaging in some unusual practices, including the poisoning of his food, and that he took a cloth soaked with ether and held it to her face so that she would go to sleep. He then planned to tie her up, so that he could talk to her about what she was doing. However, he told his sister-in-law that the cloth went too far down the victim’s throat, and she choked to death.

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