Donahoo v. State, 7 Div. 578

• Decision Date: 14 October 1986
• Docket Number: 7 Div. 578
• Parties: T.M. DONAHOO v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1067

505 So.2d 1067

T.M. DONAHOO v. STATE.

7 Div. 578.

Court of Criminal Appeals of Alabama.

Oct. 14, 1986.

Rehearing Denied Nov. 12, 1986.

B. Greg Wood of Wood, Hollingsworth & Willis, Talladega, and L. Drew Redden and Douglas H. Scofield of Redden, Mills & Clark, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and James F. Hampton of McLain & Hampton, Sp. Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

T.M. Donahoo was convicted of trafficking in cannabis, sentenced to twenty years' imprisonment, and fined $25,000. He raises seven issues on appeal.

I

On June 27, 1985, Talladega County law enforcement authorities spotted, by means of aerial surveillance, a field of growing marijuana approximately one-half mile from County Road 58. Officers subsequently cut down and confiscated over 2000 plants. The State's evidence established that the property on which the marijuana was growing was owned by the defendant's mother, whose land adjoined his. The defendant's residence was located over one-half mile from the marijuana patch and on the opposite side of County Road 58. The defendant argues that, since the marijuana plot was not located on property which he owned or over which he exercised exclusive control, the State failed to prove that he knew of the presence of the marijuana.

Proof of knowledge by the accused of the presence of the controlled substance is an essential element to conviction for the offense of trafficking. Ala.Code (1975), § 20-2-80; Calhoun v. State, 460 So.2d 268, 270 (Ala.Cr.App.1984). See also Walker v. State, 356 So.2d 672 (Ala.1977). Section 20-2-80(1) states, in pertinent part, that "[a]ny person ... who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of cannabis is guilty of a felony, which felony shall be known as 'trafficking in cannabis.' " Guilty knowledge is invariably proved by circumstantial evidence. Calhoun v. State, supra, at 270; Temple v. State, 366 So.2d 740, 741 (Ala.Cr.App.1978). See also Walker v. State, 356 So.2d 674, 675 (Ala.Cr.App.1977), cert. denied, 356 So.2d 677 (Ala.1978). It may be proved by evidence of acts, or conduct of the accused, from which it may be fairly inferred that he knew of the existence of the contraband at the place where it was found. Temple v. State, supra, at 741, Walker v. State, supra, at 676.

An inference of constructive possession arises when the controlled substance is found on premises owned or controlled by the accused. Williams v. State, 340 So.2d 1144, 1145 (Ala.Cr.App.1976), cert. denied, 340 So.2d 1149 (Ala.1977). Possession is shown by three attributes: (1) actual or potential control; (2) intention to exercise dominion; and (3) external manifestations of intent and control. Radke v. State, 52 Ala.App. 397, 398, 293 So.2d 312, 313 (1973), affirmed, 292 Ala. 290, 293 So.2d 314 (1974). Although the evidence in the present case established that the defendant's mother owned the property on which the contraband was found, it also proved convincingly that the defendant controlled the property where the marijuana was growing.

The following evidence presented by the State established the defendant's actual control over the property where the marijuana was found, and thereby his constructive possession of the controlled substance:

(1) When the marijuana patch was discovered by Talladega authorities, the soil was wet, soft, and smooth. The roads leading across other portions of the property were dry and dusty and there had been no recent rainfall. The plot was equipped with a sprinkler system. Examination of the irrigation system revealed that three sprinkler heads standing in concrete-filled bases were attached to a three-inch underground PVC pipe fed by a 7 1/2 horsepower Berkley water pump, serial number 1144790, erected in a nearby lake. The lake, also located on the defendant's mother's property, was approximately one-half mile from the marijuana field. The water pump was operated by an electric switch, and was connected to an electric service meter.

(2) During the month of October 1984, the defendant rented a ditch digging machine for one day, and purchased 2000 feet of three-inch PVC water pipe, as well as pipe couplings, pipe joints, glue, and cleaner.

(3) In May of 1985, the defendant purchased 800 peat cups, 1000 pounds of potting soil, and 160 pounds of concrete-gravel mix from local farm supply and building materials companies. During April and May of 1985, he made a total of ten long-distance telephone calls to Russell Daniel Irrigation Company in Athens, Georgia. On May 22, 1985, he bought a 7 1/2 horsepower Berkley water pump, serial number 1144790, as well as an electric starter, ball valves, and various pipe fittings, from Russell Daniel Irrigation Company. He also received from that company a diagram illustrating the operation of a three-head sprinkler irrigation system.

(4) Another field, over which the defendant exercised undisputed control and from which the marijuana patch was visible, had been "disked" within a month to a month and one-half prior to June 27, 1985.

(5) Talladega Sheriff Jerry Studdard testified that, during the execution of the search warrant the defendant "said he knowed who turned his marijuana up--I mean I know who turned up ever whose marijuana that was. And, can't you make them take the stand and tell who turned it up. I [the Sheriff] said, 'T.M. you need to get you a lawyer is what you need.' He said, 'I don't need no damn lawyer, I ain't done nothing.' "

Based on the foregoing, it is clear that the State presented sufficient circumstantial evidence from which it could be fairly inferred that the defendant knew of the existence of the growing marijuana in the place where it was found. Temple v. State, supra.

II

The trial court did not err in overruling the defendant's objection to A.B.I. agent Carter D. Waldon's testimony that, in his opinion, each marijuana plant had a market value of $500 to $600. Ringer v. State, 489 So.2d 646 (Ala.Cr.App.1986). Waldon testified that he had been a narcotics investigator for fifteen years, had seen marijuana growing at all stages of development several thousand times, and had purchased marijuana in Talladega County more than twenty times within the past year.

"It is unnecessary for a witness to be an expert or a dealer in a particular article in order to testify as to that article's value if he has had the opportunity to form a correct opinion as to its value. Sales v. State, 435 So.2d 242 (Ala.Crim.App.1983); Lankford v. State, 396 So.2d 1099 (Ala.Crim.App.1981). Whether a witness has had an opportunity to form a correct opinion as to the value of an article is a question for the trial judge, [whose decision] will not be disturbed on appeal, absent an abuse of discretion. Daniel v. State, 439 So.2d 206 (Ala.Crim.App.1983), Tice v. State, 386 So.2d 1180 (Ala.Crim.App.), writ denied, 386 So.2d 1187 (Ala.1980)."

Ringer v. State, 489 So.2d at 653. We find no abuse of discretion here.

The defendant also argues that Waldon's testimony was irrelevant to the issue of guilt or innocence and tended only to show the gravity of the offense, a matter relating solely to punishment and not within the province of the jury. The evidence was relevant, however, on the issue of motive. Testimony going to show motive, though motive is not an element of the burden of proof resting on the State, is always admissible. Mayberry v. State, 419 So.2d 262, 266 (Ala.Cr.App.1982). "Where the proffered evidence has a tendency, even though slight, to enlighten the jury as to the culpability of the defendant, then it is relevant and properly admissible." Waters v. State, 357 So.2d 368, 371 (Ala.Cr.App.), cert. denied, Ex parte Waters, 357 So.2d 373 (Ala.1978).

III

A television news videotape of the marijuana field made by a photographer for WBTM-TV, Channel 13 in Birmingham, was admitted in evidence. The defendant objected on the grounds that the videotape was cumulative of the numerous still pictures of the scene, that it depicted an illegal demonstration (the operation of the sprinkler system), and that it had been edited.

Provided that a proper foundation is laid, the admissibility of videotape evidence in a criminal trial is a matter within the sound discretion of the trial judge. Annot., 60 A.L.R.3d 333 (1974). See Thompson v. State, 462 So.2d 777, 779-80 (Ala.Cr.App.1984). The State established the proper foundation here, and there is no question regarding the authenticity of the videotape. The fact that the tape was cumulative to other photographic evidence is not a basis for reversal. Photographic evidence is admissible even though it may be cumulative or demonstrative of undisputed facts. Hopkins v. State, 429 So.2d 1146, 1157 (Ala.Cr.App.1983).

That the depiction of the sprinkler system in operation may have constituted a "demonstration" was also not a basis for exclusion of the videotape. Reviewing the trial court's disallowance of a demonstrative film, the Kansas Supreme Court characterized a videotape as "similar to a proffered demonstration or a request to view the scene of the crime" and concluded that the matter was addressed to the discretion of the trial court, to be reviewed only for abuse of discretion. State v. Costa, 228 Kan. 308, 613 P.2d 1359, 1368 (1980). In light of the fact that there was other testimony regarding the sprinkler system, we do not find that the videotape's depiction of the system in operation "materially prejudiced" the defense here, see Pease Co. v. Local Union 1787, 59 Ohio App.2d 238, 393 N.E.2d 504 (1978), or that the admission of the videotape constituted an abuse of discretion.

Finally, the fact that the tape was edited did not render it inadmissible, but only affected the weight that it would be given by the jury. State v. Woolridge, 2 Kan.App.2d 449, 581 P.2d 403 (1978) (edited TV news videotape); Pease Co. v. Local Union 1787, supra (same).

IV

The...