Jones v. State

• Decision Date: 20 September 1991
• Docket Number: CR-90-733
• Parties: 72 Ed. Law Rep. 1204 Maurice JONES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 155

593 So.2d 155

72 Ed. Law Rep. 1204

Maurice JONES v. STATE.

CR-90-733.

Court of Criminal Appeals of Alabama.

Sept. 20, 1991.

Rehearing Denied Oct. 25, 1991.

Certiorari Denied Jan. 31, 1992

Alabama Supreme Court 1910188.

Gary L. Blume, Tuscaloosa, for appellant.

James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.

JAMES H. FAULKNER, Retired Justice.

In a two-count indictment, Maurice Jones was charged with the unlawful distribution of a controlled substance within a three-mile radius of a school, in violation of §§ 13A-12-211 and 13A-12-250, Code of Alabama 1975, and possession of a controlled substance, in violation of § 13A-12-212, Code of Alabama 1975. The jury found Jones guilty of the unlawful sale of a controlled substance, and Jones was sentenced to 15 years' imprisonment plus an additional 5 years' imprisonment under the three-mile radius enhancement provision of § 13A-12-250, Code of Alabama 1975.

I

Jones contends that the trial court erred in denying his motions for judgment of acquittal and new trial because the State failed to present sufficient evidence to support his conviction.

In reviewing the correctness of the trial court's ruling on a motion for judgment of acquittal, this court may consider only evidence before the trial court at the time the motion was made and must consider that evidence in the light most favorable to the prosecution. Barnes v. State, 565 So.2d 1274 (Ala.Cr.App.1990). When this evidence, if believed, is sufficient to sustain a conviction, denial of the motion for acquittal or motion for new trial is not error. Metzger v. State, 565 So.2d 291 (Ala.Cr.App.1990); Parrish v. State, 494 So.2d 705 (Ala.Cr.App.1985), cert. denied, (Ala.1986).

Section 13A-12-211, Code of Alabama 1975, defines the crime of unlawful distribution of a controlled substance as follows:

"(a) A person commits the crime of unlawful distribution of controlled substances if, except as otherwise authorized, he sells, furnishes, gives away, manufactures, delivers or distributes a controlled substance enumerated in schedules I through V."

After examining the evidence and applying the proper standards of review, we conclude that there was sufficient evidence presented by the State to allow the jury to conclude beyond a reasonable doubt that Jones was guilty of the crime as charged. In particular, the State presented the following evidence to establish that Jones was guilty of the sale of cocaine and that that sale occurred within three miles of a school:

On the evening of August 20, 1989, two undercover police officers observed Jones and Ken Gipson standing between two buildings in the Delaware Jackson apartment complex. One of the officers approached Jones and Gipson and asked whether they were "holding," i.e., whether they had drugs. Jones answered, "Yes, right here," motioning for the undercover officer to approach where he and Gipson were standing. Gipson was facing Jones when the officer first started toward them. After Jones and Gipson asked the officer what he needed and the officer told them that he wanted to purchase drugs, Gipson and Jones spoke. Gibson was still facing Jones, but now his hands were extended in front of him in the direction of Jones. Gipson then turned from Jones toward the officer and was holding a napkin containing what appeared to be a rock of crack cocaine in his hand. The officer gave Gipson $25, and Gipson gave the officer the crack cocaine that was in the napkin. The undercover officer then announced that he was a police officer, and Jones immediately took two steps, as though he were about to run. Just as Jones turned, however, another undercover officer was upon him. Jones stopped and threw something from his left hand. Police searched the area in which the object appeared to have been thrown. A 35-millimeter film canister containing 5 rocks of crack cocaine was found on the ground 20 to 30 feet from where the drug transaction occurred.

Jones contends that the State failed to establish that he had actual or constructive possession of the cocaine or that he sold the cocaine to the undercover officer. The State responds that, while the evidence establishes that Jones did not make the actual transfer of the cocaine to the undercover officer or receive money in payment for the cocaine from the officer, there is evidence from which it could be inferred that Jones and Gipson were involved in a joint venture for the purpose of selling crack cocaine. We agree with the State's position.

Section 13A-2-23, Code of Alabama 1975, provides:

"A person is legally accountable for the behavior of another constituting a criminal offense, if with the intent to promote or assist the commission of the offense:

"(1) He procures, induces or causes such other person to commit the offense; or

"(2) He aids or abets such other person in committing the offense; or

"(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make."

This statute encompasses any act or word contributing to the commission of a felony, which is intended and calculated to incite or encourage the accomplishment of the felony. Payne v. State, 487 So.2d 256 (Ala.Cr.App.1986).

In the case at bar, the State's evidence established that Jones was more than a passive observer to the crime or a "broker," as he suggests. Jones procured the undercover officer buyer for the sale; he was present during the actual sale; he attempted to flee once he learned that the buyer was actually a police officer; and he attempted to get rid of cocaine in his possession once he had been discovered by the police. See Carlisle v. State, 465 So.2d 1205 (Ala.Cr.App.1984), cert. denied, (Ala.1985) (flight may be considered in determining extent of defendant's participation in crime) and Watkins v. State, 495 So.2d 92 (Ala.Cr.App.),...