Dixon v. State

• Citation: 536 So.2d 959
• Decision Date: 12 April 1988
• Docket Number: 4 Div. 933
• Parties: Julian Fred DIXON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 959

536 So.2d 959

Julian Fred DIXON v. STATE.

4 Div. 933.

Court of Criminal Appeals of Alabama.

April 12, 1988.

Rehearing Denied Oct. 28, 1988.

Certiorari Denied Dec. 30, 1988

Alabama Supreme Court 88-143.

Jerry Stokes, Andalusia, for appellant.

Don Siegelman, Atty. Gen., and J. Randall McNeill, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

Julian Fred Dixon was charged in separate indictments issued by the Covington County Grand Jury with receiving stolen property in the first degree and receiving stolen property in the second degree. The appellant was found guilty in a consolidated trial and was sentenced to concurrent terms of three years' imprisonment.

The evidence revealed that a burglary occurred at Church Street Elementary School on May 30, 1986. A computer, two disk drives, a printer, and other school supplies, having an aggregate value in excess of $1,000.00, were taken from the school. The testimony also indicated that a burglary occurred at the National Guard Armory in Andalusia on June 22, 1986. Two 10-speed bicycles, drugs and various military supplies valued at between $100.00 and $1,000.00 were taken from the Armory. Investigations in to both burglaries were made by the Andalusia Police Department, and, based upon information supplied to Officer Gary Hutcheson by a confidential informant, a search warrant was obtained for the residence of the appellant, Julian Fred Dixon. On July 3, 1986, Officer Hutcheson, with Investigator Maxwell Hooks of the Covington County Sheriff's Department, executed the search warrant on the appellant's home and in his bedroom found property taken from Church Street Elementary School and property taken from the Armory. At this time, the appellant was given his Miranda rights and was arrested.

At trial, Officer Hutcheson testified that after his arrest on July 3, the appellant made two oral statements to him. In the first statement, which was made at his home, the appellant stated that he obtained the computer from Skip Crenshaw, who lived in Atlanta, Georgia, and that he received the property taken from the Armory from his brother, Charlie Dixon, and a friend, Dickie Howard. The content of the second statement, which was made at the police station, was substantially the same as that of the earlier statement.

Hutcheson testified that on July 7, the appellant gave a written statement which contradicted portions of his earlier statements. Specifically, the appellant said in the written statement that the computer was brought to him by Dickie Howard, who received it from Howard's cousin, Skip Crenshaw. Hutcheson also testified that the appellant told him during a break in the interview that his brother and Dickie Howard had brought property to his home on so many occasions that he believed that the property was stolen.

Another witness for the State, Dickie Howard, testified that he and Charlie Dixon, the appellant's brother, committed the burglary of the National Guard Armory, and that they gave the appellant some of the property taken from the Armory. Howard also testified that he and the appellant committed the burglary of Church Street Elementary School. He also stated that it was the appellant's idea to take the computer, disk drives, and printer, and that he and the appellant transported the property from the school to Howard's home. Howard testified that the appellant carried the computer, disk drives, and printer from Howard's residence to his own home a few hours later.

The appellant, testifying in his own defense, denied taking any property from Church Street Elementary School and denied going to Dickie Howard's home on the evening the school was burglarized. The appellant testified that he first saw the computer when Dickie Howard came to his door carrying a TV monitor screen in one hand and a heavy canvas bag containing the rest of the computer equipment in the other. The appellant testified that Howard told him that the computer belonged to Howard's cousin, and that he was trying to sell the computer. The appellant further testified that on May 30, 1986, the evening the school burglary took place, he was in Orlando, Florida, visiting his mother.

The defense called several other witnesses, who testified that the appellant told them he was thinking about buying a computer which belonged to a relative of a friend of his brother's.

I.

The appellant contends that the trial court committed reversible error by failing to grant a judgment of acquittal at the end of the State's case on the ground that the evidence was insufficient to sustain a conviction of receiving stolen property in the first degree. The appellant argues that the State's evidence in case 87-15, the burglary of Church Street Elementary School, proved that he, with an accomplice, Dickie Howard, stole the property identified in the indictment, and that he could not, therefore, have been convicted of receiving the property.

The general rule of law in Alabama is that a defendant cannot be convicted of buying and receiving stolen property where he stole the property in question. Ogle v. State, 386 So.2d 493 (Ala.Cr.App.1980). See also Ex parte Thomas, 445 So.2d 939 (Ala.1983); Nicholson v. State, 369 So.2d 304 (Ala.Cr.App.1979). The reason for the rule stems from the logical impossibility for the thief to receive stolen property from himself. Davidson v. State, 360 So.2d 728 (Ala.Cr.App.), cert. denied, 360 So.2d 731 (Ala.1978). This Court, however, distinguishes Ogle and the other cited cases from the case at bar in that, in each of the cited cases, the State presented conclusive evidence that the defendant had actually stolen the property which he was convicted of receiving.

In the instant case, the State offered conflicting testimony. The jury could either reasonably conclude that the appellant did, in fact, receive the stolen property, or that the appellant himself helped to steal the property in question. It could be concluded from the testimony of Officer Hutcheson and from the written statement of the appellant offered as evidence by the State that the appellant did not participate in the break-in of the school, but did receive property taken in the burglary. It could also be reasoned from the testimony of Dickie Howard that the appellant aided Howard in taking the computer and other property from the school. Accordingly, the principle of law set forth in Ogle, supra, is inapplicable here. As the State's evidence did not conclusively establish that the appellant stole the property which he was convicted of receiving, the State was not precluded from obtaining a conviction against the appellant for receiving stolen property. That the appellant may have stolen the property cannot reasonably be doubted, but there is no definite evidence to that effect. Craig v. State, 375 So.2d 1252 (Ala.Cr.App.), cert. denied, 375 So.2d 1257 (Ala.1979).

This Court is required to consider the evidence in the light most favorable to the prosecution in reviewing a motion to direct a verdict of acquittal. Dooley v. State, 437 So.2d 1385 (Ala.Cr.App.1983). The State established a prima facie case of receiving stolen property in the first degree, and the appellant's motion was properly denied.

The appellant also maintains that the trial court erred by failing to grant his requested jury charge number 2, which read as follows:

"The Court charges that a person cannot be guilty of receiving stolen property which he himself has stolen from the owner."

Although the requested charge is a correct statement of the law, this Court has held on numerous occasions that it is not reversible error to refuse a charge which merely states an abstract principle of law without containing instructions as to the effect such doctrine has on the issues involved in the case. Edwards v. State, 452 So.2d 487, 498 (Ala.Cr.App.1982), rev'd on other grounds, Ex parte Edwards, 452 So.2d 503 (Ala.1983); Craig v. State, 389 So.2d 177, 179 (Ala.Cr.App.1980); Bullard v. State, 369 So.2d 877 (Ala.Cr.App.1979). Such a charge is abstract, Hudson v. State, 335 So.2d 208 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala.1976), and thus properly refused by the trial court.

The appellant also maintains that the trial court committed reversible error by failing to hold that there was a fatal variance between the charge proven by the State and that contained in the indictment, in that the State's evidence showed that the appellant stole the property he was convicted of receiving. For those reasons previously discussed in this opinion, there is no merit to this argument.

II.

The appellant contends that the trial court erred by failing to grant his requested jury charge number four or by failing to otherwise instruct the jury that the testimony of an accomplice cannot support a felony conviction without proper corroboration. Appellant's requested jury charge number four reads as follows:

"The Court charges you that a conviction of a felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."

Following the trial court's oral charge to the jury, the appellant's counsel objected to the court's failure to give all of appellant's requested jury charges on the grounds that they were accurate propositions of law.

Although appellant's requested jury charge number four was a correct statement of law, it was abstract and not hypothesized on the facts of the case. Pursuant to this Court's holding in Edwards, supra, and Bullard, supra, the court properly refused to grant this requested charge.

III.

The appellant argues that the trial court erred by permitting the prosecution to resort to innuendo and by allowing matters outside the evidence to be presented to the jury. Particularly, he cites two instances as...