Forte v. State

747 So. 2d 925, 1999 Ala. Crim. App. LEXIS 94, 1999 WL 254515
CourtCourt of Criminal Appeals of Alabama
DecidedApril 30, 1999
DocketCR-98-0425
StatusPublished
Cited by1 cases

This text of 747 So. 2d 925 (Forte v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forte v. State, 747 So. 2d 925, 1999 Ala. Crim. App. LEXIS 94, 1999 WL 254515 (Ala. Ct. App. 1999).

Opinion

BASCHAB, Judge.

The appellant, Charlie Frank Forte, was convicted of resisting arrest, a violation of § 13A-10-41, Ala.Code 1975, and unlawful possession of a controlled substance, a vio[927]*927lation of § 13A-12-212, Ala.Code 1975. The trial court sentenced him to concurrent sentences of one year in prison for the resisting arrest conviction and two years in prison for the unlawful possession conviction. The appellant filed a motion for a new trial, which the trial court denied. This appeal follows.1

On December 1, 1997, officers with the Barbour County Drug Task Force saw the appellant in a car parked at an intersection in Eufaula, Alabama. A black male was standing at the driver’s door talking to the appellant. The officers pulled up, almost in front of the car, and turned on their blue lights to make contact with the appellant. As the appellant drove away, the officers followed in what they described as a “low speed chase.” They followed him as he continued to drive, making frequent turns and running several stop signs. The officers testified that they saw the appellant throw plastic bags out of the driver’s window in two locations, and they reported those locations to dispatch. When the appellant finally stopped his car, the officers pulled past him. As they were about to get out of their car, the appellant’s car moved forward. At that point, one of the officers drew his gun, reached through the window of the appellant’s car, and grabbed the appellant. As the other officer approached the car, he opened the door and the appellant got out “swinging with both hands [and] with his head coming at [the officer].” (R. 23.) The officer hit the appellant in the head with his flashlight, but the appellant continued to struggle, hitting the officer in the chest with his head. Eventually, the officers secured the appellant with handcuffs. Shortly thereafter, the officers returned to the area where the appellant had tossed out the plastic bags, and they recovered three small bags that contained what appeared to be cocaine. Forensic testing revealed that the bags contained .43 grams of cocaine.

I.

The appellant argues that the trial court erroneously allowed James L. Thomas, Sr., to testify about a conversation he had had with James Tenille, a defense witness. Tenille testified that he was the black male standing outside the appellant’s car talking to the appellant when the police car approached. He testified further that, after the officers arrested the appellant, he talked to Thomas, a member of the district attorney’s staff, about that conversation. Tenille stated that he told Thomas that he and the appellant were talking “about ... some business ... he taken me to see my son in Georgia ... that was it.” (R. 91.) The State called Thomas as a rebuttal witness to refute Tenille’s testimony. Thomas testified that Tenille told him that he was talking to the appellant in an attempt to get some cocaine from the appellant on credit. He also stated that he was “looking out” for the appellant while the appellant was bagging up pieces of crack cocaine. (R. 192-93.)

The appellant argues that Thomas’ testimony was inadmissible hearsay. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), Ala. R. Evid. (emphasis added).

“ ‘ “Hearsay testimony consists of an out-of-court statement offered to prove the truth of the matter asserted. Ex parte Bryars, 456 So.2d 1136, 1138 (Ala.1984). However, the prohibition against hearsay testimony applies only to a statement offered to prove the truth of its contents. Tillis v. State, 469 So.2d 1367, 1370 (Ala.Cr.App.1985). ‘A statement offered for some other purpose other than to prove the truth of the matter of its factual assertion is not hearsay.’ Thomas v. State, 408 So.2d 562, 564 (Ala.Cr.App.1981).” ’ ”

[928]*928Miller v. State, 687 So.2d 1281, 1284 (Ala.Cr.App.1996) (quoting Adams v. State, 659 So.2d 224, 226 (Ala.Cr.App.1994)).

“Inconsistent statements generally, offered to impeach a witness, will continue to be admissible upon the theory that such statements are not offered to prove the truth of the matter asserted but, rather, to show that the witness says one thing in court today but said something different in the past.”

Rule 801(d)(1)(A), Ala. R. Evid. advisory committee’s notes. The State did not offer Thomas’ testimony to prove that the appellant had crack cocaine in his car. Rather, it offered the testimony to impeach Tenille by showing an inconsistency in his testimony. Therefore, the trial court properly allowed Thomas to testify about his conversation with Tenille.

II.

The appellant next argues that the State did not present sufficient evidence to support his conviction for unlawful possession of a controlled substance because the verdict was allegedly contrary to the great weight of the evidence. Specifically, he argues that the State did not prove that he had constructive possession of the cocaine the officers recovered. Section 13A-12-212, Ala.Code 1975, provides that “[a] person commits the crime of unlawful possession of [a] controlled substance if: (1) Except as otherwise authorized, he possesses a controlled substance enumerated in Schedules I through V.” “ ‘Three elements are necessary to establish possession of a controlled substance. These are: (1) actual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control.’ ” Nation v. State, 627 So.2d 1156, 1158 (Ala.Cr.App.1993) (quoting Self v. State, 564 So.2d 1023, 1026 (Ala.Cr.App.1989), cert. quashed, 564 So.2d 1035 (Ala.1990)). In addition, the State must show that the appellant “knowingly possessed the cocaine.” Id. See also Wallace v. State, 690 So.2d 534 (Ala.Cr.App.1996). “ ‘In determining the sufficiency of the evidence, this Court must accept as true the evidence introduced by the State, must make all legitimate inferences from that evidence and must consider such evidence in the light most favorable to the State.’ Daniel v. State, 623 So.2d 438, 441 (Ala.Cr.App.1993).” Turner v. State, 674 So.2d 1371, 1376 (Ala.Cr.App.1995).

In this case, both officers testified that they saw the appellant throw the bags containing the cocaine out of his car window. In Carlisle v. State, 533 So.2d 645 (Ala.Cr.App.1987), we held:

“ ‘The act of the appellant throwing the brown paper bag [containing marijuana] out of the car window, coupled with surrounding circumstances, was sufficient to prove the appellant’s possession of the marijuana and his knowledge of the presence of marijuana in the brown bag in question. The appellant’s actions showed his actual physical control of the bag containing marijuana, his intention to exercise dominion of it and an external manifestation of his intent and control. Furthermore, the act of throwing the bag out of the window when the car was stopped by the police tended to show the appellant’s guilty conscience. It is obvious that he threw the bag away so that the marijuana would not be found in the car or on his person.’ ”

533 So.2d at 650 (quoting White v. State, 479 So.2d 1368, 1377 (Ala.Cr.App.1985)). Thus, the State presented sufficient evidence to show that the appellant actually possessed the bags of crack cocaine. See Moore v. State, 677 So.2d 828 (Ala.Cr.App.1996).

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Bluebook (online)
747 So. 2d 925, 1999 Ala. Crim. App. LEXIS 94, 1999 WL 254515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forte-v-state-alacrimapp-1999.