Higdon v. State, 8 Div. 932

• Court: Alabama Court of Criminal Appeals
• Citation: 527 So.2d 1352
• Docket Number: 8 Div. 932
• Parties: Tommy Convard HIGDON v. STATE.
• Decision Date: 22 March 1988

Page 1352

527 So.2d 1352 Tommy Convard HIGDON
v.
STATE. 8 Div. 932. Court of Criminal Appeals of Alabama. March 22, 1988.
Rehearing Denied April 26, 1988.
Certiorari Denied July 15, 1988
Alabama Supreme Court 87-938.

Jack B. Sabatini of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellant.

Don Siegelman, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Tommy Convard Higdon, was indicted and convicted by a jury for trafficking in cannabis, in violation of § 20-2-80, Code of Alabama 1975. Appellant was sentenced to three years' imprisonment.

On September 26, 1986, Arlen Moss received a telephone call from Gene Storie, inquiring about his interest in a drug transaction. Moss, who had earlier pleaded guilty to dealing in cocaine and had not yet been sentenced, contacted the Federal Bureau of Investigation (FBI) and reported the conversation. Pursuant to an agreement with the FBI, Moss arranged a meeting with Storie.

At approximately 10:30 a.m., Storie met Moss in the parking lot of Moss's business.

Page 1353

Storie was driving a red Ford Mustang automobile and was accompanied by two passengers. Upon seeing Moss, Storie got out of the car, walked around to the back of it, opened the hatchback, and lifted the hatch of the compartment, where the marijuana was stored. Storie then introduced Moss to appellant, who was sitting in the back seat, and to Storie's girlfriend, who was sitting in the front seat. Storie told Moss that he had 12 pounds of marijuana and that Moss could purchase it for $500.00 a pound. Moss arranged to meet Storie again at noon.

At noon, Moss met Storie at the designated place. With the bag of marijuana in hand, Storie got out of his car and got into Moss's car. The two drove around for a while and then returned to Storie's car. Storie's girlfriend and appellant were in the car. Storie got out of Moss's car, opened the door to his car and handed appellant the bag of marijuana. A third meeting was scheduled for between 1:00 and 1:30 p.m. After leaving Storie, Moss contacted the FBI and relayed to them the time and place of the final meeting.

At approximately 1:30 p.m., Storie, his girlfriend, and appellant were met, not by Moss, but by an FBI special agent and the local police. The officers searched the automobile and found a big burlap bag, which contained what appeared to be marijuana. Appellant was then arrested and read his rights. Appellant gave a statement in which he denied knowledge of the marijuana and of the two prior meetings with Moss.

The officer who impounded the car testified that "the smell of marijuana was so stout within the car I couldn't hardly drive it ... it was a strong odor of marijuana just reeking from that car, so I had to roll the windows down to drive it two or three miles."

At trial, appellant recanted his earlier statement that they had not met with Moss and stated that they had met with Moss twice on the day of the arrest. Appellant again denied that he had any knowledge of the marijuana.

I

Appellant initially argues that the trial court erred in denying his motion for judgment of acquittal because the state failed to establish a prima facie case of possession of the illegal substance.

For one to be convicted of violating § 20-2-80, Code of Alabama 1975, the state must prove beyond a reasonable doubt that the defendant was in actual or constructive possession of one of the substances enumerated therein. When constructive possession is relied upon, as it is in this instance, the state must prove beyond a reasonable doubt that the defendant had knowledge of the presence of the controlled substance. Yarbrough v. State, 405 So.2d 721 (Ala.Cr.App.), cert. denied, 405 So.2d 725 (Ala.1981). If the accused is not in exclusive possession of the premises where the controlled substance is found, then this knowledge may not be inferred from his possession of the premises unless there are other circumstances tending to buttress this inference. Temple v. State, 366 So.2d 740, 743 (Ala.Cr.App.1978)....