Bragg v. State

Decision Date14 June 1988
Docket Number6 Div. 418
Citation536 So.2d 965
PartiesJoan F. BRAGG, Betty L. Jeanbourquin, and Richard Kitchens v. STATE.
CourtAlabama Court of Criminal Appeals

J. Louis Wilkinson of Wilkinson & Vinson, and Russell T. McDonald, Jr., of McDonald & McDonald, Birmingham, for appellants.

Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

This is a consolidated appeal of Joan F. Bragg, Betty L. Jeanbourquin, and Richard Kitchens. Each was indicted, in a two-count indictment, for trafficking in marijuana and possession of tablets containing diazepam (Valium) and residue containing pentazocine (Talwin). Their consolidated trial resulted in Kitchens and Jeanbourquin being found guilty on both counts of the indictment and Bragg being found guilty of count two, possession of tablets containing diazepam and residue containing pentazocine. Kitchens was sentenced to 20 years in the penitentiary, 3 years' minimum mandatory confinement, fined $25,000, and ordered to pay $25.00 to the Crime Victims' Compensation Commission. Jeanbourquin was sentenced to 10 years in the penitentiary, 3 years' mimimum mandatory confinement, fined $25,000 and ordered to pay $25.00 to the Crime Victims' Compensation Commission. Bragg was sentenced to 5 years' imprisonment, 180 days to be served and the remainder suspended with 4 years' probation.

Officers of the Birmingham Police Department obtained a search warrant for a house located at 6616 1st Avenue South in Birmingham. The warrant was based on an affidavit which alleged that information had been received from a reliable informant who had seen a large amount of marijuana in the house within the last 48 hours. The warrant stated that the residents of the house were a white male known as Richie and a white female known as Betty.

The officers entered the house by force, after they had received no response from their knocking on the door and identifying themselves as police officers. The officers discovered several people on the premises, including Richard Kitchens, Betty Jeanbourquin, and Joan Bragg. The record is unclear as to whether Bragg was in the house when the officers arrived or came on the scene after the search was under way, but, at some point, she was inside the house during the search and was required to remain there.

The search resulted in the discovery of various controlled substances throughout the house, including marijuana and two vials containing residue of pentazocine. Valium tablets and a small quantity of marijuana were found in Bragg's purse.

I

Appellants Jeanbourquin and Kitchens argue that the evidence presented by the state was insufficient to prove that the seized green plant material contained more than 2.2 pounds of marijuana, as required by § 20-2-80, Code of Alabama 1975, to support a conviction for trafficking in cannabis.

Appellants' argument relies on this court's ruling in Mulhern v. State, 494 So.2d 787, 789 (Ala.Cr.App.1986), wherein we held that "to make out a prima facie case, the State must prove that the accused was in possession of more than 2.2 pounds of marijuana." In Mulhern, the only evidence presented by the state to establish the required amount of marijuana was a lab report on which the weight of the green plant material was recorded.

In the case sub judice, the amount of marijuana was proven by the testimony of Mary Holt, supervisor for the analytical chemistry section of the Alabama Department of Forensic Sciences. Mrs. Holt testified that she received the plant material, in several different boxes, from Officer Wesson. The contents of the boxes were spread out on a piece of paper and a "gross physical characteristics" examination was performed to see if the plant material looked like marijuana. Next, a microscopic examination was done to determine the presence of certain characteristics that are on the leaf fragments of marijuana. Finally, a chemical analysis, known as the Duquenois-Levine test, was performed on 10 random samples from each box to determine whether the material was, in fact, marijuana. Based on these procedures, Mrs. Holt testified that all the plant material contained in the boxes was marijuana. The plant material was then weighed, and Mrs. Holt stated that the total weight was 26.38 pounds.

This testimony by Mrs. Holt far exceeds the evidence offered by the state in Mulhern. Her testimony that the entire quantity of green plant material was marijuana and that its total weight was 26.38 pounds sufficiently established the existence of the required amount of marijuana and supports a conviction for trafficking in cannabis. Higdon v. State, 527 So.2d 1352 (Ala.Cr.App.1988).

II

Appellants Jeanbourquin and Kitchens further argue that the state failed to establish that they had actual or constructive possession of the illegal substances seized. However, at trial, counsel directed his motion for judgment of acquittal solely to the trafficking charge contained in count one of the indictment against Jeanbourquin. (R. 501-02). 1 Thus, we address only the question of whether the state presented a prima facie case of trafficking against Jeanbourquin.

In order to convict a defendant for trafficking in cannabis, under § 20-2-80, the state must establish, beyond a reasonable doubt, that the defendant was knowingly in possession of more than 2.2 pounds of marijuana. Mulhern v. State. Actual possession need not be shown if the state establishes that the defendant was in constructive possession of the illegal substance. German v. State, 500 So.2d 478 (Ala.Cr.App.1986). Where the state asserts constructive possession, it must prove beyond a reasonable doubt that the defendant had knowledge of the presence of the illegal substance. Yarbrough v. State, 405 So.2d 721 (Ala.Cr.App.), cert. denied, 405 So.2d 725 (Ala.1981). For purposes of establishing constructive possession, the state can prove the defendant's knowledge of the presence of the illegal substance by circumstantial evidence. Korreckt v. State, 507 So.2d 558 (Ala.Cr.App.1986). When the accused was in nonexlusive possession of the premises upon which the illegal substance was discovered, as was the situation in the case sub judice, suspicion may arise that all the inhabitants of the premises knew of the presence of the illegal substance. Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978). However this suspicion alone is not adequate to infer knowledge. The suspicion must be supported by evidence connecting the accused with the illegal substance. Id.

In the instant case, the evidence propounded by the state to establish constructive possession is primarily circumstantial; therefore, we must view it in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).

The evidence offered by the state established Jeanbourquin's presence during the search of the premises. Officer Wesson, one of the investigating officers, testified that there was a strong odor of marijuana in the house, which he noticed as soon as he opened the door. He further testified that the officers found illegal substances in all parts of the house. Marijuana was found in a paper sack under the coffee table, in a "Mr. Coffee" box in the kitchen, on the television in the living room, in a large bag in the attic, in two bags in a bedroom closet, and in a clothes hamper in the dining room, and a large quantity was found spread out on the floor under heat lamps in one of the bedrooms. In addition, the officers discovered syringes; two medicine bottles on a nightstand, which were later determined to contain residue of pentazocine; bottles of red and white tablets in a dresser; scales; and small plastic bags. Officer Wesson further testified that the search also produced a notification letter, an Alabama Power Company bill, and a U.S. District Court letter, all addressed to Mrs. Betty Jeanbourquin, at 6616 1st Avenue South, Birmingham, Alabama 35212.

Based on the evidence presented by the state, there can be little doubt that Jeanbourquin was aware of the presence of the illegal substances inside the house. " '[W]hen the presence of the accused at the scene is established and evidence of his knowledge of the presence of the prohibited substance is shown (even by circumstantial evidence), along with any other incriminating evidence, the issue of the defendant's guilt should...

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