Flake v. State

• Decision Date: 31 August 2007
• Docket Number: CR-05-0471.
• Citation: 980 So.2d 440
• Parties: Antonio Jermaine FLAKE v. STATE.
• Court: Alabama Court of Criminal Appeals

980 So.2d 440

Antonio Jermaine FLAKE v. STATE.

CR-05-0471.

Court of Criminal Appeals of Alabama.

August 31, 2007.

Thomas J. Azar, Jr., Montgomery, for appellant.

Troy King, atty. gen., and Marc A. Starrett, asst. atty. gen., for appellee.

PER CURIAM.

The appellant, Antonio Jermaine Flake, was convicted of trafficking in marijuana, a violation of § 13A-12-231(1), Ala.Code 1975, and failure to affix tax stamps, a violation of § 40-17A-9, Ala.Code 1975. He was sentenced to 10 years' imprisonment on each conviction, the sentences to be served concurrently. The sentence was split, and Flake was ordered to serve three years in prison followed by two years on probation. The court postponed the sentence for one year pending a review in December 2006. Flake was also assessed a mandatory fine of $25,000.

The State's evidence tended to show that on May 11, 2004, officers from the special operations division of the Montgomery Police Department executed a search warrant on 213 West South Boulevard in Montgomery. Corp. R.J. Stillman, a narcotics agent with the Montgomery Police Department, testified that he had conducted two controlled buys with a confidential informant at that residence and that he had reason to believe there was a large quantity of marijuana in the house. The focus of the police investigation was Antwon Hopkins.

A SWAT team accompanied the special operations officers to execute the warrant and entered the house first to secure the premises. Flake and two other males, one identified as Antwon Hopkins, were found in the house. Hopkins was in possession of over $4,000 in cash. Flake was found in what was identified by law enforcement as "Bedroom 2." Numerous police officers testified that when they entered the house the smell of raw marijuana was "overwhelming" or "overpowering."

Police discovered over 20 pounds of marijuana in the house. In "Bedroom 3," police recovered 16 pounds of marijuana that was contained in 16 one-pound plastic bags. Marijuana was found under the bed, in a drawer, and in the closet. In this same bedroom police discovered a set of scales in the middle of the floor.

In the room where Flake was found, described as "Bedroom 2," the officers discovered an open suitcase with "trace" amounts of marijuana inside. They also found a plastic container that contained a bag of marijuana packaged for sale—it was in a plastic bag.

The confidential informant who participated in the controlled buys testified. He identified Flake as an individual who was in the house when he went to buy a quarter pound of marijuana immediately before the search warrant was executed. Flake, he said, was walking from the living room of the house when he was waiting for the drugs he had purchased.

Flake testified in his defense and said that the house belonged to his cousin, Allen Timmons. He said that he went there every week to get his car washed. Flake also said that he did not smell marijuana in the house because, he said, "I wasn't searching to smell it. I went to get my car washed." (R. 140.) Flake testified that he had previously been arrested for possessing marijuana and that he smoked marijuana on occasion.

I.

Flake first argues that the evidence was insufficient to convict him of either trafficking in marijuana or failure to affix tax stamps.

Initially, we observe that Flake never objected to the sufficiency of the evidence related to the charge of failure to affix tax stamps. In order for the issue of the sufficiency of the evidence to be preserved, the issue must first be presented to the lower court. See Reed v. State, 717 So.2d 862 (Ala.Crim.App.1997). Because no objection was made, this issue is not properly before this Court. See Payne v. State, 946 So.2d 930 (Ala.Crim.App.2006). However, Flake did preserve his claim that there was not sufficient evidence to convict him of trafficking in marijuana. At the end of the State's case and in his motion for a new trial, Flake argued that there was not sufficient evidence to convict him of trafficking in excess of 2.2 pounds of marijuana.

There is no question that Flake was not in actual possession of the more than 20 pounds of marijuana seized from the residence; thus, the State had to prove that Flake was in constructive possession of the drugs. See Ex parte J.C., 882 So.2d 274 (Ala.2003).

"`Constructive possession exists when the defendant exercises, or has the power to exercise, dominion and control over the item.' United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir.1980); United States v. Phillips, 496 F.2d 1395, 1397 (5th Cir.1974), cert. denied, 422 U.S. 1056, 95 S.Ct. 2680, 45 L.Ed.2d 709 (1975). `Constructive possession may be determined by weighing those facts which tend to support the defendant's necessary control over the substance against those facts which demonstrate a lack of dominion and control.' Roberts [v. State], 349 So.2d [89] at 91 [(Ala.Crim.App.1977)]."

German v. State, 429 So.2d 1138, 1140 (Ala.Crim.App.1982). The German Court further stated:

"`The possession vital to the convictions under review may, in familiar language, be either actual or constructive. It thus is unnecessary to show that the accused had the drug on this person or within his immediate reach; it is enough that he "was knowingly in a position or had the right to exercise dominion and control over" it, either directly or through others. Possession in that sense suffices though it is jointly shared, and it may be established by circumstantial as well as direct evidence.'"

429 So.2d at 1141-42, quoting United States v. Staten, 189 U.S.App.D.C. 100, 105, 581 F.2d 878, 883 (D.C.Cir.1978).

"Where contraband is seized inside a residence, `constructive possession can only arise "where the prohibited material is found on the premises owned or controlled by the appellant."' Crane v. State, 401 So.2d 148, 149 (Ala.Crim.App.1981) (quoting Williams v. State, 340 So.2d 1144, 1145 (Ala.Crim. App.1976)). `"When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances."' Ex parte Tiller, 796 So.2d [310] at 312 [(Ala.2001)] (quoting Posey v. State, 736 So.2d 656, 658 (Ala.Crim.App. 1997)).

"`While non-exclusive possession may raise a suspicion that all the occupants had knowledge of the contraband found, a mere suspicion is not enough. Some evidence that connects a defendant with the contraband is required. Generally, the circumstances that provide that connection include:

"`"(1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that illicit drugs will be found; (5) evidence that debris of the contraband was found on defendant's person or with his personal effects; (6) evidence which shows that the defendant, at the time of the arrest, either used the contraband very shortly before, or was under its influence."'"

Ex parte J.C., 882 So.2d at 277-78, quoting Grubbs v. State, 462 So.2d 995, 997-98 (Ala.Crim.App.1984), quoting in turn Temple v. State, 366 So.2d 740, 743 (Ala.Crim. App.1978).

Here, Flake was found in a bedroom where a open suitcase that contained trace amounts of marijuana was found. In the same bedroom police also recovered a plastic bag that contained marijuana. The smell of raw marijuana was overwhelming in the house. Also, Flake was present when the confidential informant had previously been to the house to buy a quarter pound of marijuana.

"While proximity to a contraband alone is not enough to establish constructive possession, `where other circumstantial evidence ... is sufficiently probative, proximity to contraband coupled with inferred knowledge of its presence will support a finding of guilt of such charges.' Soriano v. State, 527 So.2d 1367, 1372 (Ala.Cr.App.1988); United States v. Whitmire, 595 F.2d 1303, 1316 (5th Cir.1979), cert. denied, 448 U.S. 906, 100 S.Ct. 3048, 65 L.Ed.2d 1136 (1980)."

Mobley v. State, 563 So.2d 29, 32 (Ala. Crim.App.1990). "`[T]he voluntary presence of the accused in an area obviously devoted to preparation of drugs for distribution is a circumstance potently indicative of his involvement in the operation.'" German v. State, 429 So.2d at 1142, quoting United States v. Staten, 189 U.S.App. D.C. at 107 n. 67, 581 F.2d at 885 n. 67.

Flake was arrested in a house that was clearly devoted to the preparation and sell of marijuana. There was sufficient evidence to present to the jury for its determination the question of whether Flake was in constructive possession of over 2.2 pounds of marijuana. The circuit court gave detailed instructions on the concept of "constructive possession," and the jury found Flake guilty of trafficking. We see no reason to disturb the jury's verdict in this case.

II.

Flake also argues that the verdict was against the great weight of the evidence.

"`We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial.' Whitt v. State, 733 So.2d 463, 470 (Ala.Crim.App. 1998). `"[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine."' Harris v. State, 513 So.2d 79, 81 (Ala.Crim.App.1987), quoting Byrd v. State, 24 Ala.App. 451, 451, 136 So. 431, 431 (1931). `"When the jury has passed on the credibility of evidence tending to establish the defendant's guilt, this Court cannot disturb its finding."' Rowell v. State, 647 So.2d 67, 69 (Ala.Crim.App. 1994), quoting Collins v. State, 412 So.2d 845, 846 (Ala.Crim.App. 1982). `Any issues regarding the weight and credibility of the evidence are not reviewable on...