Deep v. State, 3 Div. 391

• Citation: 414 So.2d 141
• Decision Date: 26 January 1982
• Docket Number: 3 Div. 391
• Parties: Toofie DEEP, alias v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 141

414 So.2d 141

Toofie DEEP, alias v. STATE of Alabama.

3 Div. 391.

Court of Criminal Appeals of Alabama.

Jan. 26, 1982.

Rehearing Denied March 2, 1982.

Certiorari Denied, May 21, 1982

Alabama Supreme Court 81-499.

William N. Clark of Redden, Mills & Clark, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Toofie Deep was indicted under § 13A-8-3, Code of Alabama 1975, for "knowingly obtaining or exerting unauthorized control over a Morgan Portable Building, ... the property of the State of Alabama, ... with the intent to deprive the owner of said property." The jury returned a verdict of "guilty as charged" and the trial court sentenced Mr. Deep, the appellant, to three years' imprisonment in the state penitentiary.

In summary, the state theorized that the appellant, as an employee of the "Hurricane Frederick" Disaster Housing Office in Mobile, transported a Morgan Portable Building, which had been used as a community "cook shack" at the Sea Pines Trailer Park during the disaster relief effort, from the Park in Mobile, Alabama, to his home in Montgomery, Alabama, "with the intent to deprive the owner of [its] property." The "owner" in this instance was the State of Alabama which had purchased the building with federal funds earmarked for the disaster relief effort.

The appellant's theory of the case was that, although he did take the building to his home in Montgomery, he was "authorized" by his immediate supervisor, who had the power to so authorize, to take it and use it only until the state needed it again or until a "staging area" (storage facility) in Montgomery could be completed. The appellant's contention is that this "temporary" use of the building was "authorized" in exchange for appellant's services of transporting the building to and "storing" it at his home in Montgomery at his own expense.

It was undisputed at trial that the appellant was hired by Lee Killough, Director of Disaster Housing in Mobile, to assist him in securing temporary housing for eligible victims of the 1979 Hurricane Frederick disaster, and that in that capacity the appellant performed a valuable service for the citizens of this state. It was during the "winding down" phase of this disaster relief effort, during the first week of January, 1980, that the alleged "theft" by the appellant of the Morgan Portable Building occurred.

The funding for the disaster relief program begun in the aftermath of Hurricane Frederick, was supplied by the federal government through the Federal Emergency Management Agency (FEMA), but the program was implemented through the State Department of Civil Defense, State of Alabama. Joe Hedrick, acting Director of the State Department of Civil Defense at that time, appointed Mr. Killough as Director of the Disaster Housing Office in Mobile and authorized him to hire the personnel and purchase the equipment required to provide the necessary housing for disaster victims.

One item purchased during this disaster relief effort was a 10 foot by 20 foot Morgan Portable Building, which was used as a temporary "cook shack" at the Sea Pines Trailer Park in Mobile. This building was used as a "cook shack" until electricity was restored to the surrounding homes. After its useful purpose had been served the building was left vacant at the Park where it became susceptible to vandalism. On or about January 5, 1980, this building was transferred by the appellant to the back yard of his home in Montgomery where it was used to store motorcycles, trash cans, garden tools and other miscellaneous items of personal property.

The prosecution presented evidence that supported its theory that the appellant intended to exercise "unauthorized" control over this item of state property and to "deprive" the state thereof.

Perhaps the evidence most damaging to the appellant on the issue of "intent" was the state's exhibits 16, 17, and 19, which were color photographs depicting the Morgan Portable Building as it was positioned in the appellant's back yard when it was seized by the authorities. Exhibits 16 and 17 demonstrated that although there had been no apparent attempts to hide or otherwise camouflage the building, shrubbery had been planted around its perimeter in front, and on both sides, and some white picket fencing had been placed around the base of the building. The back of the building was bordered by the chain-link fence which surrounded the appellant's back yard and which was partially "taken down" to move the building to its back yard location.

Exhibit 19 was a photograph of the aluminum identification plate which displayed the model number and serial number of the building. This plate was located on the outside of the door of the building just above the doorknob and was attached to the door with four bolts. The photograph revealed a number of vertical and horizontal scratches curiously located only on the identification plate with only a few extending a short distance onto the surface of the door itself. The state contended that these scratches were the result of an apparent attempt by the appellant to obliterate the model and serial numbers. The location of these scratches, which were most intense over the serial number "supports" this contention. However, both the serial number and the model number were quite legible in spite of the scratches. Also, the entire identification plate could have been removed by simply removing the four bolts holding it in place.

In addition to this physical evidence, the state presented several witnesses whose testimonies inferred appellant's alleged criminal intent.

George Dean, the State Comptroller, testified that the Morgan Portable Building was purchased with four $421.00 installments. Two of these installments were paid on January 14, 1980, and February 27, 1980, respectively, after the building had been transferred to appellant's home in Montgomery. However, the vouchers signed by Mr. Killough for these two payments indicated that the building was still part of the Sea Pines Trailer Park, thus implying that it was still being used in the disaster relief effort.

Robert Thomson, a "fiscal officer" hired by the appellant for service as a member of the disaster relief team, testified that he asked Mr. Killough in March, 1980, (after the appellant had transported the building to this home in Montgomery) why the Morgan Portable Building was not listed on the inventory of disaster relief equipment and was told by Mr. Killough that it was still part of the Sea Pines Trailer Park and did not need to be itemized.

Eddie Foster, another employee of the Disaster Housing Office hired by the appellant and the key witness for the prosecution, testified with reference several conversations either that he had with appellant privately or that he participated in with appellant and others. Mr. Foster stated that appellant told him on October 6, 1979, that he, the appellant, had made some "extra money" during the "last disaster" and intended to make as much as possible on "this one" and asked Mr. Foster if he wanted to do likewise. (R 106-109). He further stated that he, Mr. Foster, told appellant that he did not wish to participate in any schemes to make extra money and that he refused appellant's request for help in transporting the Morgan Portable Building to Montgomery. He stated that in a conversation with the appellant and Bobby Kelley, one of the men who did move the building, Mr. Kelley told Mr. Foster that they had to "take down" appellant's fence in order to get the building in his back yard and that it took them all day. (R 115).

The appellant did not testify in his own behalf. The evidence which was presented in his behalf confirmed that the appellant did transport the Morgan Portable Building to his home in Montgomery where it was used to store personal property.

However, in defense of this action, appellant's evidence theorized that he was "authorized" to use the building until a "staging area" (a storage facility) in Montgomery could be completed or until the state again needed it and that he did not intend to "deprive" the state of its property.

Mr. Killough was the key witness for the appellant. He testified that he "authorized" the appellant to take possession of and to use the portable building until a storage facility could be prepared for it or until it was needed again by the state. (R 312). He stated that in exchange for the "temporary" use of the building the appellant agreed to and did transport it to Montgomery at his own expense. Mr. Killough explained that he made this "authorization" when it came to his attention that the building had served its useful purpose as a "cook shack", had been vacated, and had become susceptible to vandalism at the Sea Pines Trailer Park. He acknowledged that he considered storage of the building at a federal "staging area" in Mobile and at a state "staging area" in Montgomery. He did not want to store the building at the nearby federal "staging area" because the state would have forfeited its right to future use of it. The state "staging area" in Montgomery would have been the best location, but he did not feel that it was in the proper state of repair to store the building. However, he expected the appellant to transfer the building to the Montgomery facility as soon as the facility was completed.

Mr. Killough admitted signing, after the appellant had taken the building, the two vouchers which indicated that the Morgan Portable Building was still part of the Sea Pines Trailer Park. However, he explained that he felt that he still had control of the building even while it was being "used and stored" at the appellant's home. He also emphasized that the cost to the state of transporting the building to Montgomery was saved because the appellant transported it at his own expense. In Mr. Killough's opinion the option of authorizing its...