Patterson v. State

• Decision Date: 26 April 2002
• Citation: 845 So.2d 861
• Parties: Richard PATTERSON v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

845 So.2d 861

Richard PATTERSON v. STATE of Alabama.

CR-00-2603.

Court of Criminal Appeals of Alabama.

April 26, 2002.

Rehearing Denied June 21, 2002.

Certiorari Denied September 13, 2002.

George H. Jones, Birmingham, for appellant.

William H. Pryor, Jr., atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.

Alabama Supreme Court 1011873.

COBB, Judge.

On July 13, 2001, Richard Patterson was convicted of criminal possession of explosives, a violation of § 13A-7-44, Ala.Code 1975, and of conspiracy to commit murder, a violation of § 13A-4-3 and § 13A-6-2, Ala.Code 1975. On August 24, 2001, the trial court sentenced him to serve 10 years in prison for the possession-of-explosives conviction and to life imprisonment for the conspiracy-to-commit-murder conviction. On September 10, 2001, Patterson filed a motion for a new trial, and the trial court denied his motion on October 1, 2001. Patterson gave timely notice of appeal.

In December 1999, David Lively, an acquaintance and former coworker of Patterson's, contacted the Jefferson County Sheriff's Department and informed it that Patterson had told him that he wanted to make a bomb to kill his ex-wife. The police began taping Lively's conversations with Patterson. Lively met with Patterson a few more times, and wore a "wire" to the meetings. The police provided Lively with two military-style blasting caps and other items that could be used to make a bomb, and on December 21, 1999, Lively took those items to a meeting with Patterson. Patterson paid Lively for the items, and the police arrested him at the scene.

I.

First, Patterson argues that the trial court erroneously denied his motion for a judgment of acquittal because, he contends, the State did not prove certain material elements of each offense charged. Specifically, Patterson claims that the State failed to prove (1) the existence of a conspiracy, and (2) that the items in question were explosives as defined by statute.¹ We disagree.

The Alabama Supreme Court addressed the appellate court's role in reviewing the sufficiency of the evidence in criminal cases in Ex parte Woodall, 730 So.2d 652 (Ala.1998):

"`In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr. App.1984),aff'd,471 So.2d 493 (Ala. 1985).' Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt, Pennington v. State, 421 So.2d 1361 (Ala.Cr.App.1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Cr. App.1992). Thus, `[t]he role of appellate courts is not to say what the facts are. [Their role] is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.' Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978) (emphasis original)."

730 So.2d at 658.

A.

Patterson contends that the trial court erroneously denied his motion for a judgment of acquittal on the conspiracy charge "because one cannot conspire with a police officer and/or agent who does not have the specific intent to commit the crime; to wit: the intent to kill." (Patterson's brief, p 3.) We disagree.

Section 13A-4-3, Ala.Code 1975, provides, in relevant part:

"(a) A person is guilty of criminal conspiracy if, with the intent that conduct constituting an offense be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one or more of such persons does an overt act to effect an objective of the agreement.

". . . .

"(d) It is no defense to a prosecution for criminal conspiracy that:

"(1) The person, or persons, with whom defendant is alleged to have conspired has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or is immune from prosecution, or

"(2) The person, or persons, with whom defendant conspired could not be guilty of the conspiracy or the object crime because of lack of mental responsibility or culpability or other legal incapacity or defense."

We note that all of the cases relied on by Patterson in his brief are either based on federal statutes or the laws of other states, and thus do not apply to the statutory construction and interpretation of the Alabama statute. Also of importance is that the Alabama statute allows one person to be guilty of conspiracy even if the other person is not culpable.

In Zumbado v. State, 615 So.2d 1223 (Ala.Crim.App.1993), this Court stated:

"`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.' Greer v. State, 563 So.2d 39, 40 (Ala.Cr.App.1990)."

615 So.2d at 1242.

Based on § 13A-4-3(d)(1), Ala. Code 1975, it is not a defense to Patterson that Lively, acting as an informant for the police, was immune from prosecution. Similarly, § 13A-4-3(d)(2), Ala.Code 1975, provides that it is not a defense that Lively did not have the intent to actually kill Patterson's ex-wife. In Ingle v. State, 405 So.2d 56 (Ala.Crim.App.1981), this Court held:

"Subsection (d)(2) of [§ 13A-4-3, Ala. Code 1975] provides the answer to appellant's argument that he could not be guilty of conspiracy with [the informant] because the latter was an informer without criminal intent. The statute specifically rejects the notion that it is a defense to a conspiracy charge that the person with whom the defendant agreed had no mental culpability."

405 So.2d at 58.

The State presented evidence indicating that Patterson: (1) intended to kill his ex-wife; (2) entered into an agreement with Lively to obtain explosive devices suitable for killing her; and (3) did in fact take delivery of explosives and other materials from Lively and pay Lively for those items.

Thus, based on the legal principles set forth above, the State presented evidence, if believed by the jury, legally sufficient for the jury to find Patterson guilty of conspiracy. The trial court did not err in denying Patterson's motion for a judgment of acquittal on the charge of conspiracy to commit murder.

B.

Patterson argues that the trial court erroneously denied his motion for a judgment of acquittal on the charge of criminal possession of explosives on the grounds that the State failed to prove that the items he possessed were explosives. Specifically, Patterson contends that the blasting caps and timer were merely detonators, not explosives. We disagree.

Section 13A-7-40(2), Ala.Code 1975, defines explosives as follows:

"Any chemical compound or mechanical mixture that is commonly used or intended for the purpose of producing an explosion and which contains any oxidizing and combustive units or other ingredients in such proportions, quantities or packing that an ignition by fire, by friction, by concussion, by detonator or by chemical action of any part of the compound or mixture may cause a sudden generation of highly heated gases that the resultant gaseous pressures are capable of producing destructive effects on contiguous objects or of destroying life or limb."

The evidence presented at trial, viewed in a light most favorable to the prosecution, showed that two military blasting caps and a timing device with conducting wire were among the items seized from Patterson. After the items were photographed as evidence, the caps were taken to the police firing range and detonated. The commanding officer of the bomb squad testified that the blasting caps were detonated in a metal can to demonstrate the metal-fragmentation effect that resulted from the detonation. A battery was placed in the timer, the timer was attached to one of the caps, the timer was set, the cap was placed in a metal can, and the cap detonated when the timer ran down. The bottom of the metal can was blown off by the explosion. The same process was repeated with the second cap. Both explosions were videotaped; the videotape was played for the jury.

In Farris v. State, 432 So.2d 538, 540 (Ala.Crim.App.1983), Farris "was observed holding a two liter plastic soft drink bottle in one hand and a cigarette lighter in the other hand. The bottle contained gasoline. A paper towel `rolled up' and saturated with gasoline (`that was used for a wick') was `stuffed down into' the top of the bottle." This Court held that "[t]he plastic container filled with gasoline and provided with a paper towel wick was an `explosive' within the meaning of [§ 13A-7-40(2), Ala. Code 1975]." Id. Patterson argues that the blasting caps are analogous to the paper towel wick in Farris, not to the gasoline-filled container, and therefore would not, alone, constitute an explosive under the statute. We do not agree with Patterson's comparison.

Without more, a gasoline-soaked paper towel does not cause the type of explosion described in § 13A-7-40(2), Ala.Code 1975. The mere igniting of a paper towel is not likely to produce the "destructive effects on contiguous objects or of destroying life or limb" as defined in the statute. However, the evidence here tended to show that the blasting caps themselves were explosives as defined by statute. The police ignited the blasting caps in metal cans. The resulting damage to the metal cans, coupled with the testimony of the commanding officer of the bomb squad, demonstrated the type of explosion and destructive effects contemplated by the statute. Therefore, a more accurate comparison would be to...