Greer v. State, 5 Div. 646
Decision Date | 16 March 1990 |
Docket Number | 5 Div. 646 |
Citation | 563 So.2d 39 |
Parties | Jessie James GREER, Tom Heflin Moore, Jr., Kenyatta Ortega Silcott v. STATE. |
Court | Alabama Court of Criminal Appeals |
John I. Cottle III, Tallassee, for appellants.
Don Siegelman, Atty. Gen., and Andrew J. Segal, Asst. Atty. Gen., for appellee.
Jessie James Greer, Tom Heflin Moore, Jr., and Kenyatta Ortega Silcott were convicted of criminal conspiracy to commit the misdemeanor offense of "drag racing" in violation of Ala.Code 1975, § 13A-4-3. Greer was fined $500 and ordered to serve 10 days in the county jail. Moore was fined $100. Silcott was fined $250 and his 10-day sentence in the county jail was suspended upon payment of the fine. This is a consolidated appeal from those convictions. Although two issues are presented by the three defendants, we need only address the first.
I
The defendants are correct in their contention that the trial court should have granted their motion for judgment of acquittal because the State's evidence of conspiracy was based solely upon the presence of the defendants at the time and place where a drag race was expected to occur.
The State's evidence, viewed in its most favorable light, shows only that the defendants were present, among a group of approximately 40 or 50 people at a location on a road in an apparently rural area of Tallapoosa County where a drag race, or some other type of automobile race, was going to occur at some time in the near future. There was evidence that three individual cars separately traveled up and down the highway on different occasions at a high rate of speed. There was testimony that "[t]he crowd got to--when [one car] went down the first time, they kind of, ... kind of egging things on, hollering." Other than this, there was no evidence to indicate that any car had been or was actually "racing," as that term is defined by Ala.Code 1975, § 32-5A-178(c), 1 or "drag racing," as that term is defined by § 32-5A-178(b). 2
The offense of criminal conspiracy is defined by Ala.Code 1975, § 13A-4-3:
The elements of conspiracy are: first, the specific intent that a crime be performed; second, an agreement with another person to engage in or cause that crime to be performed; and third, the commission of an overt act by one of the conspirators in furtherance of the conspiracy. See Chisler v. State, 553 So.2d 654, 664-65 (Ala.Cr.App.1989) ( ). Obviously, § 13A-4-3 does not require that the criminal offense agreed to be actually completed." Commentary to § 13A-4-3 at 91. "Conspiracy is a distinct and separate substantive offense from the crime intended, and does not require that the criminal offense agreed to be actually completed." Calhoun v. State, 460 So.2d 268, 272 (Ala.Cr.App.1984).
The existence of a Smith v. Board of Commissioners of the Alabama State Bar, 284 Ala. 420, 428, 225 So.2d 829, 835 (1969).
Lash v. State, 244 Ala. 48, 53, 14 So.2d 229, 232 (1943). A conspiracy "may be shown by circumstantial proof, or inferred from the conduct of the participants in execution of the conspiracy." Skumro v. State, 234 Ala. 4, 7, 170 So. 776, 779 (1936). "Conspiracy may be inferred from the conduct of the conspirators." Cleveland v. State, 20 Ala.App. 426, 428, 103 So. 707, 710 (1924), cert. denied, 212 Ala. 635, 103 So. 711 (1925).
The State argues that the defendants "were members of a crowd gathered to observe an illegal but public drag race" and "were properly found guilty of conspiracy because their presence in the crowd proved their knowing participation as spectators to the illegal event." Appellant's brief at 20. We disagree.
The evidence does afford the implication that the defendants were members of a crowd apparently gathered to observe an illegal but public drag race and that they were spectators. Other than the fact of their mere presence, there is nothing to indicate that any defendant encouraged or "egged on" any form of racing.
"Merely being at or near the scene of a crime even without raising the hue and cry does not make a man either principal or accessory to that crime." Leonard v. State, 43 Ala.App. 454, 462, 192 So.2d 461, 469 (1966). "[I]f presence at the time and place a crime is committed, in conjunction with other facts and circumstances, tends to connect the accused with the commission of the crime, then the jury may find the accused guilty." Dolvin v. State, 391 So.2d 133, 137 (Ala.1980), quoted in Payne v. State, 487 So.2d 256, 261 (Ala.Cr.App.1986). " 'The mere fact that a person is present at the scene of a crime but does not in any way participate in or encourage its commission does not make him a party to the crime.' " Pate v. State, 45 Ala.App. 15, 17, 221 So.2d 691, 693 (1969).
"United States v. Rozen, 600 F.2d 494, 497 (5th Cir.1979), quoting United States v. Littrell, 574 F.2d 828, 833 (5th Cir.1978)."
United States v. DeSimone, 660 F.2d 532, 537 (5th Cir.1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 and 456 U.S. 928, 102 S.Ct. 1976, 72 L.Ed.2d 444 (1982) (footnote omitted). "Merely being a knowing spectator is insufficient" to support a conspiracy conviction. United States v. James, 510 F.2d 546, 552 (5th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1975). Mere presence and guilty knowledge will not suffice to impose criminal liability unless coupled with the doing of something to forward the crime--"that he was a participant rather than merely a knowing spectator." United States v. Garguilo, 310 F.2d 249, 254 (2d Cir.1962).
Bailey v. United States, 416 F.2d 1110, 1113-14 (D.C.1969) (footnotes omitted). In the present case, the presence of the defendants does not imply participation. See United States v. Cruz-Valdez, 773 F.2d 1541, 1546-47 (11th Cir.1985), cert. denied, 475 U.S. 1049, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986) ( ...
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