R.W. v. State

808 So. 2d 1228, 2001 Ala. Crim. App. LEXIS 8, 2001 WL 32855
CourtCourt of Criminal Appeals of Alabama
DecidedJanuary 12, 2001
DocketCR-99-1073
StatusPublished
Cited by2 cases

This text of 808 So. 2d 1228 (R.W. 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
R.W. v. State, 808 So. 2d 1228, 2001 Ala. Crim. App. LEXIS 8, 2001 WL 32855 (Ala. Ct. App. 2001).

Opinion

LONG, Presiding Judge.

The appellant, R.W., was indicted on two counts of unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala.Code 1975. Count I of the indictment charged the appellant with the unlawful possession of hydrocodone; Count II of the indictment charged the appellant with the unlawful possession of testosterone cypionate. The appellant applied for, and was granted, youthful offender status. Following a bench trial, the appellant was convicted of the unlawful possession of testosterone cypionate; he was acquitted on the charge of unlawful possession of hy-drocodone. The trial court sentenced the appellant to two years’ imprisonment, but suspended the sentence conditioned on the appellant’s good behavior.

The sole issue raised in this appeal is whether the evidence was sufficient to sustain the appellant’s conviction for possession of testosterone cypionate.

Initially, we note that the State argues that this issue was not preserved for appellate review, because, the State says, the appellant “did not make a motion for judgment of acquittal at trial or by posttrial motion.” (State’s brief to this court, p. 3.) Although we agree that the appellant did not use the term “motion for a judgment of acquittal,” the record reflects that, at the close of all the evidence, the appellant’s trial counsel argued to the court that the State had failed to prove a prima facie case of possession and that, therefore, the court should find the appellant not guilty on both counts in the indictment. We find that counsel’s argument was sufficient to preserve this issue for review.

The evidence adduced at trial tended to show the following. On May 26,1998, Ray Harris, a narcotics investigator with the Abbeville Police Department, and Noel Vanlandingham, a deputy sheriff with the Henry County Sheriffs Department, executed a search warrant at a residence owned by the appellant’s father, A.W. At the time of the search, the appellant was a minor and was living with his father.

During the search, substantial amounts of prescription and/or controlled narcotics were found in the residence. The appellant stipulated that both a vial of testosterone cypionate — an anabolic steroid commonly used to enhance muscle mass and to treat impotency — -and a bottle of hydroco-done — a pain reliever — were found in the residence. Both the testosterone cypionate and the hydrocodone were found in a box underneath the sink in a bathroom in the upstairs portion of the residence. Also found in the same box were the following items: a vial of lidocaine, quinine, orphe-nade, Ornade, Amoxil, amitex, “MMR,” Achromycin, Lodine, cephalexin, pargen forte, Proventil, cyclobenzaprine, Vance-nase, Beconase, and several syringes.

Testimony showed that in the upstairs area of the residence were one bedroom, one bathroom, a sitting room, and a small cubby hole-type storage area that contained a bed. Investigator Harris testified that the appellant told him that the bedroom upstairs was his bedroom. Investigator Harris further testified that he found sports equipment and weightlifting equipment in the appellant’s bedroom. Testimony showed that there was a door leading from the appellant’s bedroom into the bathroom where the hydrocodone and testosterone cypionate were found.

Investigator Harris and Deputy Van-landingham found the following items in the downstairs area of the residence, in the master bedroom and bathroom: Viagra, tussin, paregoric, phenobarbital, Don-[1231]*1231natal, Lomotil, Ornade, an empty bottle labelled as Valium, an empty bottle labeled as Vasotec, an empty bottle labelled as hydrocodone, and a vial of gonadotro-pin. The downstairs bedroom belonged to the appellant’s father. In other areas of the downstairs, the officers found a vial of Nubain, and one bottle of each of the following: Trental, Propulsid, K-Dur 20, Ultram, Maxzide, colchicine, Tenor-min, Vasotec, aidactone, Prozac, Lasix, al-lopurinol, cimetidine, temazepam, Lamisil, Diflucan, prochlorperazine, clindamycin, metoclopramide, metronidazole, and apap/oxycodo.

The record reflects that the appellant’s father was a pharmacist and was diabetic. The record further reflects that the appellant was the only person present in the residence at the time of the search; the appellant’s father was in the hospital at the time. Testimony revealed that approximately one month after the search, in June 1998, the appellant’s father died.

In his defense, the appellant presented evidence that his father had separated from his wife, J.W., several months before the search (they divorced approximately one month before the search), and that before the divorce, his father and J.W. argued frequently, that his father would often sleep upstairs, and that on those occasions his father used the upstairs bathroom where the testosterone cypionate and hydrocodone were found. T.W., the appellant’s brother, testified that he saw his father upstairs several times when he visited, and that he also saw his father’s shaving kit and bath items in the upstairs bathroom. T.W. also testified that he saw his father take hydrocodone on several occasions. T.W. stated that because he was a diabetic, his father was in a lot of pain. T.W. further stated that, prior to his death, his father took a lot of medications that could have caused impotency and that, although his father never told him about a problem, after learning that Viagra was found in his father’s bedroom, he believed that his father was using such medication.

The appellant also called A.B., an employee of A.W. at A.W.’s pharmacy, to testify on his behalf. A.B. testified that she saw A.W. take narcotics from the pharmacy home with him. Specifically, she testified that she saw A.W. take halo-testin, a type of testosterone, and hydroco-done from the pharmacy.

In rebuttal, the State called J.W. to testify. J.W. testified that when she was married to A.W., A.W. never slept upstairs. However, J.W. stated that A.W. went upstairs on other occasions because his hunting gear was kept in the sitting room.

“ ‘In order to sustain a conviction for possession of controlled substances, there must be sufficient evidence of either actual or constructive possession. Radke v. State, 52 AIa.App. 397, 293 So.2d 312 (1973), affirmed, 292 Ala. 290, 293 So.2d 314 (1974). “Just as the mere presence of a person at the time and place of a crime is not sufficient to justify a conviction for the commission of that crime, ... so the mere presence of the accused in a place where the controlled substance is found is not in and of itself evidence of possession.” German v. State, 429 So.2d 1138, 1140 (Ala. Crim.App.1982).’ ”

Posey v. State, 736 So.2d 656, 658 (Ala.Crim.App.1997), cert. quashed, 736 So.2d 661 (Ala.1999), ‘quoting Menefee v. State, 592 So.2d 642, 644 (Ala.Crim.App.1991).

Here, it is undisputed that the appellant was not in actual possession of the testosterone eypionate found in the box under the sink in the upstairs bathroom. Therefore, it was incumbent upon the [1232]*1232State to prove that the appellant was in constructive possession of the contraband.

“ “When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances. Campbell v. State, [439 So.2d 718 (Ala.Crim.App.), rev’d on other grounds, 439 So.2d 723 (Ala.1983)]; Yarbrough v. State, 405 So.2d 721 (Ala.Crim.App.), cert.

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Related

Allen v. State
850 So. 2d 375 (Court of Criminal Appeals of Alabama, 2002)

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Bluebook (online)
808 So. 2d 1228, 2001 Ala. Crim. App. LEXIS 8, 2001 WL 32855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rw-v-state-alacrimapp-2001.