Shivers v. State

555 So. 2d 338, 1989 Ala. Crim. App. LEXIS 2328, 1989 WL 162260
CourtCourt of Criminal Appeals of Alabama
DecidedNovember 17, 1989
Docket1 Div. 58
StatusPublished

This text of 555 So. 2d 338 (Shivers 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
Shivers v. State, 555 So. 2d 338, 1989 Ala. Crim. App. LEXIS 2328, 1989 WL 162260 (Ala. Ct. App. 1989).

Opinion

McMILLAN, Judge.

This is an appeal from a conviction of unlawful possession of marijuana for other than personal use.

In January 1989, the Baldwin County grand jury returned a two-count indictment against the appellant charging him with unlawful possession of marijuana for other than personal use, in violation of § 13A-12-212(a)(1), Code of Alabama (1975), and with unlawful possession of marijuana for personal use only, in violation of § 13A-12-213(a)(2), Code of Alabama (1975). The appellant applied for and received youthful offender status. Thereafter, the appellant was convicted in a bench trial of unlawful possession of marijuana for other than personal use.

The sole issue raised on appeal is whether the record contains sufficient evidence to support the conviction of unlawful possession of marijuana for other than personal use. If so, then the trial court erred in denying the motion for directed verdict of acquittal. For the reasons set forth below, we agree with the appellant’s argument that the evidence was not sufficient.

In the case sub judice, the appellant was convicted on the theory of constructive possession, which was established at trial by circumstantial evidence. In Robinette v. State, 531 So.2d 697 (Ala.1988), our Supreme Court reiterated the standard of appellate review of the sufficiency of the evidence where the evidence presented at trial is circumstantial. The Robinette Court held as follows:

“ ‘ “The standard for appellate review of the sufficiency of the evidence in a case such as this one was aptly set out in Dolvin v. State, 391 So.2d 133 (Ala.1980):
[339]*339“ ‘ “In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir.1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).
“ ‘ “[W]e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir.1969); Roberts v. United States, 416 F.2d 1216 (5th Cir.1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir.1967):
“ ‘ “ ‘Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. . . . The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is to examine the welter of evidence to determine if there exists apy reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged. McGlamory, 441 F.2d at 135 and 136.’ ” ’ (Emphasis in original.)
391 So.2d at 137-38, quoting Cumbo v. State, 368 So.2d 871, 874 (Ala.Crim.App.1978), cert. denied, Ex parte Cumbo, 368 So.2d 877 (Ala.1979).”

Id. at 698-99. Circumstances, no matter how strong, which merely arouse a suspicion of guilt will not serve as a basis for conviction. Jordan v. State, 229 Ala. 415, 157 So. 485 (1934); Black v. State, 52 Ala.App. 528, 294 So.2d 777 (1974).

In Korreckt v. State, 507 So.2d 558 (Ala.Cr.App.1986), this Court addressed the matters which must be proved by the prosecution when the'defendant is not shown to be in actual possession of the premises on which the controlled substances were found. Judge Patterson, writing for this Court, held as follows:

“Possession, whether actual of constructive, has the following three attributes: (1) ‘[Ajctual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control.’ Radke v. State, 52 Ala.App. 397, 398, 293 So.2d 312, 313 (1973), aff’d, 292 Ala. 290, 293 So.2d 314 (1974). ‘Constructive possession may be determined by weighing facts tending to support a defendant’s necessary control over the substances against facts which demonstrate a lack of dominion and control.’ Crane v. State, 401 So.2d 148, 149 (Ala.Cr.App.), cert. denied, 401 So.2d 151 (Ala.1981). . . .
“When, as in this case, constructive possession is relied on, the State must also adduce some facts or circumstances from which the jury could find beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substance. Ex parte Story, 435 So.2d 1365 (Ala.1983); Lyons v. State, 455 So.2d 295 (Ala.Cr.App.1984); Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978). Additionally, ‘knowledge by the accused of the presence of the controlled substances is an essential element and prerequisite to conviction for the offense of illegal possession of a controlled substance under the Alabama Controlled Substances Act.’ Temple, 366 So.2d at 741. See also Walker v. State, 356 So.2d 672, 674 (Ala.1977), and § 20-2-80(2). Such knowledge may [be], and ususally is, established by circumstantial evidence. Walker v. State, 356 So.2d 674, [340]*340675 (Ala.Cr.App.1977), cert. denied, 356 So.2d 677 (Ala.1978).”

Id. at 564-65.

In the present case, the evidence tended to show the following facts:

On July 15, 1988, Sergeant Paul Surrey and Officer Gary Smith of the Baldwin County sheriff’s department, Officer Michael Gulledge of the Narcotics Enforcement Unit of the Alabama Alcoholic Beverage Control Board, and Officer Ray Ward of the Daphne Police Department, were engaged in a marijuana eradication operation in the vicinity of Daphne, Alabama. The officers had received information that marijuana was being grown behind a house at 1506 Conaway Street in Daphne, believed to be the residence of the appellant, and they proceeded to that address.

Officers Ward and Smith approached the Conaway Street residence from a wooded area behind the house.

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Related

William Dennis Riggs v. United States
280 F.2d 949 (Fifth Circuit, 1960)
Odell Clark v. United States
293 F.2d 445 (Fifth Circuit, 1961)
Eddie Odom v. United States
377 F.2d 853 (Fifth Circuit, 1967)
Allen James Harper v. United States
405 F.2d 185 (Fifth Circuit, 1969)
United States v. John Gordon McGlamory
441 F.2d 130 (Fifth Circuit, 1971)
United States v. Lewis Black
497 F.2d 1039 (Fifth Circuit, 1974)
Korreckt v. State
507 So. 2d 558 (Court of Criminal Appeals of Alabama, 1987)
Robinette v. State
531 So. 2d 697 (Supreme Court of Alabama, 1988)
Dolvin v. State
391 So. 2d 133 (Supreme Court of Alabama, 1980)
Temple v. State
366 So. 2d 740 (Court of Criminal Appeals of Alabama, 1978)
Crane v. State
401 So. 2d 148 (Court of Criminal Appeals of Alabama, 1981)
Lyons v. State
455 So. 2d 295 (Court of Criminal Appeals of Alabama, 1984)
Ex Parte Story
435 So. 2d 1365 (Supreme Court of Alabama, 1983)
Cumbo v. State
368 So. 2d 871 (Court of Criminal Appeals of Alabama, 1978)
Ex Parte Cumbo
368 So. 2d 877 (Supreme Court of Alabama, 1979)
Black v. State
294 So. 2d 777 (Court of Criminal Appeals of Alabama, 1974)
Walker v. State
356 So. 2d 674 (Court of Criminal Appeals of Alabama, 1977)
Walker v. State
356 So. 2d 672 (Supreme Court of Alabama, 1977)

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Bluebook (online)
555 So. 2d 338, 1989 Ala. Crim. App. LEXIS 2328, 1989 WL 162260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shivers-v-state-alacrimapp-1989.