Buice v. State
Decision Date | 21 September 1990 |
Citation | 574 So.2d 55 |
Parties | Rick BUICE v. STATE. CR 89-464. |
Court | Alabama Court of Criminal Appeals |
Roy O. McCord, Gadsden, for appellant.
Don Siegelman, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.
The appellant, Rick Buice, was convicted of the unlawful sale of a controlled substance, in violation of § 20-2-70(a), Code of Alabama 1975. He was sentenced as a habitual felony offender to 12 years in the state penitentiary.
The evidence tended to show that on September 17, 1987, Karen Tucker, an undercover narcotics officer with the Etowah County Sheriff's Department, picked up a confidential informant at the informant's residence and went to a residence in northwest Attalla. Officer Tucker testified, based on her observation of a street sign, that the two went to a residence at "107 Lister Avenue." Once at the residence, Officer Tucker and the informant knocked on the door, and a man, whom Officer Tucker identified at trial as the appellant, opened the door and let them in. Officer Tucker asked the appellant if he had what they had come for, at which time the informant went back outside and waited in the car. The appellant told Officer Tucker that he would be back in a minute, and he went to a back room. A few minutes later, the appellant returned and handed Officer Tucker a small clear cellophane sandwich bag containing a brown plant material. Officer Tucker took the bag and placed it inside her purse and gave the appellant $35. At trial, both parties stipulated that the brown plant material sold to Officer Tucker was indeed marijuana.
The appellant raises four issues on appeal.
The appellant first contends that there was a fatal variance between the evidence and the indictment and that, therefore, the trial court erred in not granting his motion for a directed verdict. More specifically, the indictment alleged that the transaction occurred on "Lister Avenue." However, at trial, it was shown that there is no "Lister Avenue" in Attalla, Alabama, but that there is a Lester Avenue.
There must be a material variance between the indictment and the evidence before a conviction will be overturned. Smith v. State, 551 So.2d 1161 (Ala.Cr.App.1989); Perry v. State, 549 So.2d 119 (Ala.Cr.App.1988). "A variance is not a material variance unless it misleads the accused or is substantially injurious to him in making his defense." Phillips v. State, 446 So.2d 57, 62 (Ala.Cr.App.1983), cert. denied, Phillips v. Alabama, 467 U.S. 1254, 104 S.Ct. 3541, 82 L.Ed.2d 845 (1984). Section 15-8-31, Code of Alabama 1975, states that an indictment need not allege where the offense was committed; thus, the variance in the case at bar is not material. See Carroll v. State, 440 So.2d 1168 (Ala.Cr.App.1983). Therefore, the trial court did not err in denying the appellant's motion for a directed verdict.
The appellant's second contention is that the evidence at trial was insufficient to sustain a conviction. The only witness to testify at trial was Officer Tucker. The appellant argues that two alleged inconsistencies in Officer Tucker's testimony and her police report render her testimony not credible. Thus, the appellant argues, the State failed to meet its burden of proof.
In Jones v. State, 469 So.2d 713 (Ala.Cr.App.1985), Judge Bowen wrote:
Jones, supra, 469 So.2d at 716-17.
Moreover, in P.S. v. State, 565 So.2d 1209 (Ala.Cr.App.1990), this court held:
565 So.2d at 1212. Thus, under the principles set out above, we find that the factfinder could have been convinced beyond a reasonable doubt of the appellant's guilt from the evidence presented.
The appellant's third contention is that he was denied a speedy trial because his trial was continued approximately nine times. However, this contention is being raised for the first time on appeal and, therefore, is not reviewable by this court.
In order to preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof. Wheeler v. State, 553 So.2d 652 (Ala.Cr.App.1989); Dixon v. State, 476 So.2d 1236 (Ala.Cr.App.1985). An issue raised for the first time on appeal is not correctly before this court. Thornton v. State, 527 So.2d 143 (Ala.Cr.App.1987) writ quashed, Ex parte Thornton, 527 So.2d 146 (1988); Fuller v. State, 472 So.2d 452 (Ala.Cr.App.1985). Thus, that issue has not been preserved for our review.
The appellant's final contention is that the court erred in its refusal to give the following requested written charges:
In Brisbon v. State, 378 So.2d 743 (Ala.Cr.App.1979), writ denied, Ex parte Brisbon, 378 So.2d 744 (1979), the appellant was convicted of the sale of marijuana. He requested charges almost identical to those jury charges requested by the appellant in the case at bar. The trial judge in Brisbon also refused the requested written charges. Appellant Brisbon appealed, arguing that the refusal was error.
This court, in Brisbon, supra, found no error in the trial court's refusal of the appellant's requested written charges, holding as follows:
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