Laster v. State
| Decision Date | 28 May 1999 |
| Citation | 747 So.2d 359 |
| Parties | Orlando Cornelius LASTER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Paul W. Brunson, Jr., Clayton, for appellant.
Bill Pryor, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
The appellant, Orlando Cornelius Laster, was convicted of trafficking in cocaine, a violation of § 13A-12-231, Ala.Code 1975. He was sentenced, pursuant to the Alabama Habitual Felony Offender Act ("HFOA"), to 99 years in the state penitentiary and was fined $50,000 pursuant to § 13A-12-231(2)a., Ala.Code 1975.
The first contention appellant raises on appeal is that the trial court erred in denying his motion for a judgment of acquittal in which he alleged that the state failed to prove venue. Specifically, the appellant argues that no direct evidence of venue was presented. First and foremost, this issue has not been preserved for review. At the conclusion of the state's evidence, counsel for the appellant stated, "[T]he defendant moves for a directed verdict and finding of not guilty due to the failure of the state to present a prima facie case of trafficking in cocaine." (R. 96.) This motion did not specifically raise the venue issue at the trial level and, thus, it did not preserve this issue for appellate review. Sciscoe v. State, 606 So.2d 202, 204 (Ala.Cr.App.1992). "Matters not objected to at trial and not ruled upon by the trial judge, will not be considered for the first time on appeal." Thomas v. State, 666 So.2d 849, 852 (Ala.Cr.App. 1993), citing Gilland v. State, 593 So.2d 158 (Ala.Cr.App.1991). We will not place the trial court in error on grounds not presented to it. See Acree v. State, 673 So.2d 855, 856 (Ala.Cr.App.1995). Further, we note that "`to preserve an issue concerning venue (or lack thereof), the challenging party must object before a verdict is reached.'" Sciscoe, 606 So.2d at 204, quoting Kelley v. State, 568 So.2d 405, 407 (Ala.Cr.App.1990). See also Dutton v. State, 587 So.2d 1046, 1050 (Ala.Cr.App. 1991).
Although this issue has not been preserved, after reviewing the record, we note that this contention is without merit, considering the circumstances of this case and applicable law.
"`Proof of venue is necessary to sustain a conviction, and, like any other fact in the case, when there is evidence in the case having a tendency to prove that the offense was committed within the jurisdiction of the court, the question of venue becomes a fact for the jury to decide.'" Creech v. State, 508 So.2d 302, 303 (Ala.Cr. App.1987), quoting Grace v. State, 369 So.2d 318, 322 (Ala.Cr.App.1979). Venue can be established by circumstantial evidence. Creech, 508 So.2d at 303.
"` '"
Creech, 508 So.2d at 303-04, quoting Lewis v. State, 461 So.2d 9, 11 (Ala.1984).
Because venue can be established by circumstantial evidence, to prove venue the state was not required to prove by direct evidence that the appellant committed the crimes in Barbour County. Antonio Lawson testified that the mobile home where the drugs at issue were found was in Clio, in Barbour County. (R. 117.) Sheila Smith also testified that the drugs were found in her mobile home. She testified that her address at the time was "98 Carlton Easterling Road." Detective Stanley Grubbs, with the Barbour County drug task force, testified that the mobile home was located "in Clio, on a dirt road, 98, across from Easterling Road in Clio, Alabama." (R. 30.) Another witness, Belinda Thomas testified that she had purchased drugs on 10 or 15 occasions from the mobile home in which Sheila Smith lives, in Clio. (R. 181.) As a result of these transactions, Thomas admitted having crack cocaine in her possession in Barbour County. (R. 181.) Based upon this and other testimony presented at the appellant's trial, the state presented sufficient evidence from which the jury could have reasonably inferred that the offenses were committed in Barbour County and that, therefore, proper venue was proven. See Kirby v. State, 581 So.2d 1136, 1143 (Ala.Cr.App.1990); and Rothchild v. State, 558 So.2d 981, 985 (Ala.Cr.App.1989).
The appellant also contends that he was convicted on the uncorroborated testimony of a codefendant. He alleges that "considering the totality of the evidence presented, there is insufficient proof to corroborate the testimony of the co-defendant and a reasonably prudent person, excluding the testimony of the co-defendant, would have found insufficient evidence to convict." (Appellant's brief at p. 12.) We disagree.
Initially, we note that, in reviewing the sufficiency of the evidence, this court must accept as true the evidence introduced by the state, accord the state all legitimate inferences therefrom and consider the evidence in a light most favorable to the state. Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984).
Section 12-21-222, Ala.Code 1975, states:
"A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."
This court has previously set out the law concerning the corroboration of accomplice testimony, as follows:
McCoy v. State, 397 So.2d 577, 585 (Ala.Cr. App.), cert. denied, 397 So.2d 589 (Ala. 1981), quoting Miller v. State, 290 Ala. 248, 250, 275 So.2d 675 (1973) ()
Section 13A-12-231, Ala.Code 1975, states the following, in pertinent part:
"(2) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine or of any mixture containing cocaine, described in § 20-2-25(1), is guilty of a felony, which felony shall be known as `trafficking in cocaine'."
The evidence pertinent to the appellant's conviction of trafficking in cocaine showed the following. Detective Stanley Grubbs, with the Barbour County Drug Task Force, testified that based on drug related complaints he had received, he obtained a warrant to search a mobile home in Clio. Grubbs and other members of the task force executed the search warrant on November 21, 1996. Lee Hamm, commander of the drug force, testified that when they arrived at the mobile home, there were three vehicles parked in the driveway. According to Hamm, one car belonged to Sheila Smith; the other two cars were registered in the appellant's name.
Upon entering the mobile home, the officers found Smith and Antonio Lawson inside. Hamm testified that he found crack cocaine and marijuana in plain view on the coffee table. Lawson and Smith were subsequently arrested.
Hamm testified further that Lawson told him where other drugs were located. Lawson directed Hamm to an area about 30 yards east of the mobile home. (R. 39.) Upon searching the area, Hamm recovered a plastic bag containing a substance later determined by the Alabama Department of Forensic Science to be 55.026 grams of crack cocaine.(R. 81.) The bag containing the cocaine was later sent by Hamm for a fingerprint analysis. Hamm testified that Lawson told him that the drugs belonged to the appellant. (R. 38.) At trial, Lawson testified that the drugs were the appellant's and that Lawson was selling the drugs for the appellant.(R. 110, 127.)
Marietta Prevost, a certified latent print examiner with the Department of Public Safety, identification services, testified that she identified the fingerprint on the plastic bag containing the 55.026 grams of crack cocaine as the "right index finger of Orlando Laster." (R. 67.)
We note that "the probative value of the [corroborative] evidence need only legitimately tend to connect the accused with the crime and need not directly do so." Mills v. State 408 So.2d 187, 191 (Ala.Cr.App.1981). See also Craig v. State 376 So.2d 803 (Ala.Crim.App.1979). In reviewing the record, we conclude that, excluding the testimony of the accomplice, the state presented sufficient corroborating evidence that connected the appellant to the crime and that supported the appellant's conviction of trafficking in cocaine.
In Palmer v. State, 593 So.2d 143, 145 (Ala.Cr.App.1991), we reiterated the evidence the state must present to establish that an accused was in possession of illegal drugs:
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