Adams v. State

• Decision Date: 23 October 1984
• Docket Number: 4 Div. 301
• Citation: 459 So.2d 999
• Parties: Jonathan David ADAMS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 999

459 So.2d 999

Jonathan David ADAMS v. STATE.

4 Div. 301.

Court of Criminal Appeals of Alabama.

Oct. 23, 1984.

J. Earl Smith, Dothan, for appellant.

Charles A. Graddick, Atty. Gen., and Robert B. Rinehart, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This appellant was found guilty by a jury upon his being tried jointly with Roy Clayton Pooley on an indictment charging in pertinent part the following:

"Roy Clayton Pooley ... and Jonathan David Adams ... did possess an explosive, tool, instrument or other article, to-wit: Screwdriver, gloves, wire pliers and key cutters, which are adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forceful entry into premises or theft by a physical taking, with intent to use the same, in the commission of an offense involving forcible entry into premises or theft by a physical taking, in violation of 13-7-8 of the Code of Alabama, ...."

The jury found Roy Clayton Pooley not guilty.

Alabama Criminal Code § 13A-7-8 provides:

"(a) A person commits the crime of possession of burglar's tools, if he:

"(1) Possesses any explosive, tool, instrument or other article adapted, designed or commonly used for committing or facilitating the commission of an offense involving forceful entry into premises or theft by a physical taking; and

"(2) Intends to use the thing possessed in the commission of an offense of the nature described in sub-division (a)(1) of this section.

"(b) Possession of burglar's tools is a Class C felony."

According to § 13A-5-6(a)(3), a Class C felony is punishable by imprisonment for "not more than 10 years or less than 1 year and 1 day." The court fixed appellant's punishment at imprisonment for eight years and sentenced him accordingly.

By the first issue presented in the brief of counsel for appellant, he contends that a prima facie case was not presented by the evidence for the State and that for that reason the court was in error in denying defendant's motion to exclude the evidence at the conclusion of the State's case.

We are in accord with appellant's argument to the effect that defendant's motion to exclude should have been granted if at the time there was no substantial evidence of defendant's guilt, which principle of law has been accepted uniformly by the appellate courts of Alabama since Gilbert v. State, 30 Ala.App. 214, 3 So.2d 95 (1941), which followed the correct principle set forth in Ex parte Grimmett, 228 Ala. 1, 152 So. 263 (1934), that the "scintilla rule" applicable in civil cases is not applicable in criminal cases and that, in the absence of substantial evidence of a defendant's guilt after the prosecution has rested its case, the denial of a timely presented motion to exclude the evidence would constitute prejudicial error necessitating a reversal of a judgment of conviction. In the instant case, it should be noted that defendant took the stand after his motion to exclude was denied and robustly denied that he had an intent to use any of the things alleged to have been possessed by him "in the commission of an offense" involving forcible "entry into premises or theft by a physical taking," which is a requisite of the crime of possession of burglar's tools as defined by § 13A-7-8.

Each of the briefs of the attorneys for the respective parties on appeal contains a commendably clear summary of the evidence that we are pleased to utilize, but in doing so we limit our resume to the evidence sought to be excluded by defendant's motion at the close of the evidence for the State, having in mind that the evidence presented thereafter would be irrelevant to the issue presented as to whether the issue now under consideration is well taken, which is correctly summarized in appellant's brief as follows:

"... Officer Alton Miller testified that he, in response to a complaint went to the Fox Run Apartments on Honeysuckle Road and went to the back of the apartments to Emmanuel Christian School and saw two white males walking from Fox Run Apartments toward a vehicle parked in the parking lot ... and that when they walked past it about fifteen to twenty feet he stopped them. That he frisked them for weapons and found on Jonathan Adams a small Derringer, a screw driver, a pair of wire pliers, a pen flashlight, and a pair of brown leather type gloves. That he put the Appellant and Mr. Pooley in separate cars and looked through the window of the vehicle parked in the Emmanuel Christian School parking lot and could see in the back floorboard of the vehicle a portable key-making device with a red handle and a black book. On the dash was a door unlocking tool or a strip of metal used to unlock doors."

In addition to what is shown by the appellant's statement of facts as above quoted from his attorney's brief, we now refer to the testimony of two witnesses who testified on call of the State before the State rested its case, both of whom were residents in separate apartments of the Fox Run Apartments at the time of the incident involved, which according to the undisputed evidence occurred after midnight of June 15-16, 1983. One of them, Keith Anthony, testified that he owned a 1981 Honda Accord automobile, which he had parked close to his apartment on the night of June 15, and that he locked his automobile before leaving it and going to his apartment. He testified:

"A. I was awakened at 2:00 o'clock in the morning by a patrolman.

"Q. Okay. And, did you go with the patrolman anywhere?

"A. He directed me out into the parking lot and asked me to identify my vehicle.

"Q. Did you do that?

"A. Yes, I did. I pointed to my car."

He further testified:

"A. I found that the passenger door, the lock had been punched out. The interior of the car, just below the window, most cars have some type of upholstery there and my car had that upholstery and it was pulled down, torn or cut or whatever and torn down.

"Q. Right there where the lock area is but on the other side of the car?

"A. That is correct.

"Q. On the passenger's side?

"A. On the passenger's side. Yes, sir.

"Q. Was your car like that the night before when you secured it?

"A. Absolutely not.

"Q. What else, if anything, was different about your vehicle?

"A. There was a pocket knife laying in the front seat of the passenger's side of the car that did not belong to myself or my wife.

"Q. Other than that, was that the extent of the difference of your car?

"A. Yes, sir."

The other witness for the State testifying before the State rested its case was Parviz Golfeiz, who testified in important part as follows:

"Q. Back in June of this particular year, 1983, June 16 around 1:15, I want to ask you if you were a neighbor to Keith Anthony at that time?

"A. Yes.

"Q. Out at the apartment complex?

"A. Yes.

"Q. I want to ask you if you had an occasion to look outside and see anything please, sir?

"A. Yes, sir.

"Q. Would you speak up now so your voice will carry past the Jury and tell them what you saw?

"A. Well, I saw someone in Keith's car. And, he was messing with the steering wheel and the inside of the car. And, I called the police. And, by the time the police got there, they ran back to their car. We went back to his car and drove off to the back of the apartment.

"Q. Okay. Let's start up at the front. At the time that you looked, first looked out and saw someone inside Keith's car, could you tell whether or not it was Keith?

"A. Yes.

"Q. Was it or wasn't it?

"A. It was not.

"Q. Did you then call the police department immediately?

"A. Yes.

"Q. Did you continue to look outside as to what the person was doing?

"A. Yes.

"Q. Was it at that time that he was inside messing around inside the car?

"A. Yes.

"Q. Did you see the person get out of the car?

"A. Yes.

"Q. Where did the person go?

"A. Back to the car that was parked back there, about a few yards from the car.

"Q. Did he get in that particular car?

"A. Yes."

Although the evidence for the State prior to its resting its case was woefully unclear and indefinite as to some particulars, we are able to determine with reasonable certainty from the evidence at the time of the motion of defendant to exclude the evidence that the person who was seen by Parviz Golfeiz in the automobile of Keith Anthony, as stated above, was either this appellant or his co-defendant Roy Clayton Pooley. In our opinion, the evidence thus considered constitutes substantial evidence that this appellant, either as the principal or as an aider or abettor, was guilty of the possession of burglar's tools with the intent to use the tools in the commission of an offense involving forceful entry into premises or theft by a physical taking in violation of Alabama Criminal Code, § 13A-5-6(a)(3), as charged in the indictment.

The...