Crane v. State

• Decision Date: 31 March 1981
• Docket Number: 1 Div. 203
• Citation: 401 So.2d 148
• Parties: Willard Gene CRANE, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 148

401 So.2d 148

Willard Gene CRANE, alias v. STATE.

1 Div. 203.

Court of Criminal Appeals of Alabama.

March 31, 1981.

Rehearing Denied April 21, 1981.

Thomas M. Haas and James M. Byrd, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.

BOOKOUT, Judge.

Possession of marijuana; sentence: fifteen years' imprisonment.

At the conclusion of the State's case, the appellant moved to exclude the evidence for failure to prove actual or constructive possession of marijuana or cocaine. The appellant contends the trial court committed reversible error in denying the motion. We agree.

On March 5, 1979, Mobile Police Officer Sammy Brown and two other officers of the Mobile narcotics division executed a search warrant at 3655 Old Shell Road, Apt. 408. While Officer Brown stationed himself at the rear entrance, the other two officers knocked on the front door and were admitted into the apartment by the appellant who was "standing in the foyer."

When the search began, the appellant was instructed to sit down and remain seated. Officer Brown searched the downstairs kitchen and den area in the rear of the apartment and discovered a small plastic sandwich bag containing a miniscule amount of loose marijuana and two hand-rolled marijuana cigarette butts. Subsequently, he searched the appellant but found no marijuana or cocaine on the appellant's person.

When the other two officers went upstairs to search the second floor of the apartment, a woman identified as "Mrs. Crane" was discovered asleep in the front bedroom. She was sent downstairs to be seated with appellant. The officers discovered in that upstairs bedroom a large garbage bag filled with approximately seventeen pounds of marijuana. It was located underneath some men's and women's clothing in a walk-in closet. From the top of the bedroom dresser, they seized a small black and white jewelry box containing not only ladies' jewelry but also a small metal tube, a razor blade, and a red and white plastic straw. A subsequent analysis of this paraphernalia showed minute traces of cocaine. Also in the upstairs area the officers found a set of scales bearing marijuana residue.

The State brought the appellant to trial on a two-count indictment alleging unlawful possession of marijuana and unlawful possession of cocaine. The jury found the appellant guilty of unlawful possession of marijuana.

To authorize the submission of a criminal case to a jury, the State must present substantial evidence tending to prove each element of the offense. In a case where the defendant is charged with "unlawful possession of marijuana," the State must necessarily prove that the defendant "possessed" the illegal substance. Roberts v. State, Ala.Cr.App., 349 So.2d 89, cert. denied, Ala., 349 So.2d 94 (1977). The oft-quoted case of Radke v. State, 52 Ala.App. 397, 293 So.2d 312, affirmed, 292 Ala. 290, 293 So.2d 314 (1974), describes this element as follows: "Possession the visible possibility of exercising physical control over personalty is usually divided as actual (manucaptive) or constructive. Possession has three attributes: (1) actual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control."

It is obvious from the facts in this case that the appellant was not in actual possession of the contraband. Therefore, in order to sustain the verdict, the State had to prove that the appellant was in constructive possession of the marijuana.

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. Roberts, supra. Where contraband is seized within a residence, as it was here, constructive possession can only arise "where the prohibited material is found on the premises owned or controlled by the appellant." (Emphasis added.) Williams v. State, Ala.Cr.App., 340 So.2d 1144, cert. denied, Ala., 340 So.2d 1149 (1976).

The State offered no proof before the jury that the appellant owned or controlled the apartment where the contraband was found. No attempt was made to ascertain the name of the person in whose bedroom the marijuana was found or the names of the persons to whom the clothes in the bedroom belonged. No evidence whatsoever was presented to the jury which would indicate that the appellant had any knowledge of or connection with the marijuana found by the police.

In McCord v. State, Ala.Cr.App., 373 So.2d 1242 (1979), constructive possession was proved by an officer testifying that: (1) he knew of his own personal knowledge that the accused resided at the residence, (2) he saw letters in the house addressed to the accused at that address, and (3) he observed the accused dress with clothes from the closet in the bedroom where the contraband was found. On the other hand, this court found that the fact that the accused's wife was present in the bedroom would have no bearing on the issue of the accused's constructive possession.

In Cook v. State, Ala.Cr.App., 341 So.2d 183 (1977), we found the State failed to prove constructive possession. In that case we said, at 184:

"The State offered no proof that the appellant owned, leased, or lived in the residence where the contraband was found. Although the residence had been under surveillance for approximately two weeks prior to the search, no one testified that the appellant or his family were ever at the residence other than the afternoon of the search. There was no testimony that the appellant had any knowledge of or connection with the...