Poole v. State
| Decision Date | 12 August 1986 |
| Docket Number | 8 Div. 404 |
| Citation | 505 So.2d 1065 |
| Parties | Johnny Mack POOLE v. STATE. |
| Court | Alabama Court of Criminal Appeals |
F. Timothy Riley of Carnes & Carnes, Albertville, for appellant.
Charles A. Graddick, Atty. Gen., and Robert B. Rinehart, Asst. Atty. Gen., for appellee.
The appellant was convicted of the offense of possession of burglary tools in violation of § 13A-7-8, Code of Alabama (1975), and was acquitted of a violation of the Alabama Uniform Controlled Substances Act in the Circuit Court of Marshall County. Appellant was adjudged a habitual offender and was sentenced to eighteen years' imprisonment. For the reasons given below, we affirm.
On December 8, 1984, the appellant and Farris Fowler were arrested, following a telephone call made to the police by Beacie Corbin. Ms. Corbin testified at trial that from her home she witnessed a "rusty colored car" ram the back door of Bishop's Pharmacy several times. Although she could not see inside the car, she observed a man get out of the passenger side of the automobile on two occasions and attempt to pry open the back door of the pharmacy with a four-prong tire tool. Soon afterwards, the police arrived, stopped the vehicle, and arrested the occupants. Captain Childress, of the Albertville Police Department, testified that he saw a four-prong tire tool on the back-seat of the car, and he identified the appellant as the man on the passenger side of the automobile. Officer Patton, of the Albertville Police Department, testified that the tire tool appeared to have paint scratches matching the paint on the back door of the pharmacy. He further testified that the appellant seemed to be intoxicated.
The appellant contends that the State failed to prove beyond a reasonable doubt that the tire tool, or lug wrench, can be designated as a burglary tool for the purposes of the offense of possession of burglary tools. He alleges that a lug wrench is not adapted, designed, or commonly used for committing or facilitating the offense of burglary. However, as this court has stated:
Burrell v. State, 429 So.2d 636, 639 (Ala.Cr.App.1982).
Further, this court has held that opinion testimony alone is admissible to establish that certain tools are of the nature of those commonly used to facilitate forced entry. McClellan v. State, 484 So.2d 1150, 1155 (Ala.Cr.App.1985).
The essence of the offense for which the appellant was convicted is "possession of the lug wrench or tire tool" with the intent to use it in committing a burglary. Scott v. State, 491 So.2d 1094 (Ala.Cr.App.1986). A ball-peen hammer, a nail prying tool, and a screwdriver are burglary tools as contemplated by § 13A-7-8. Burrell v. State, supra. See also Lewis v. State, 437 So.2d 642 (Ala.Cr.App.1983) (). In Scott, supra, this court held that as "a matter of common knowledge," a sledge hammer is adaptable and often used to break into a building, despite its original legitimate purposes. Scott, supra. It is undisputable that a lug wrench or tire tool is suited to and often used for a burglar's tool to pry open a door.
The second issue raised by the appellant is whether the State presented sufficient evidence to convict him of the crime of possession of burglary tools; specifically, appellant alleges that the State did not prove that he had the tool in his possession with the intent to commit any burglary.
" " Burrell, supra, at 639, quoting 13 Am.Jur.2d Burglary, § 74 (1964). It is well established that a felonious intent may be proved by circumstantial evidence. Id. Strong circumstantial evidence can provide the nexus between the tools and appellant which might otherwise be unsubstantiated through direct evidence. Ware v. State, 409 So.2d 886, 893 (Ala.Cr.App.1982), writ quashed, Ex parte Ware, 409 So.2d 893 (Ala.1981). "And circumstantial evidence is entitled to the same weight as direct evidence provided it points to the guilt of the accused." Id., quoting Hayes v. State, 395 So.2d 127, 147 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981). Thus, where a hole was found in the roof of a pawn shop, a sledge hammer was found nearby, and the appellant was apprehended on the roof of an adjacent building, the State presented a prima facie case of possession of burglar's tools. Scott v. State, supra. This court stated that Id.
"The intent for use of the tools ... does not relate to a particular time or place but only to an unlawful purpose." Pooley v. State, 470 So.2d 1337, 1339 (Ala.Cr.App.1985). Therefore, while the commission of the burglary would be admissible to prove the felonious intent in having the tools, it is not necessary. Id. A jury could have been satisfied by the evidence beyond a reasonable doubt that the defendant was in possession of burglary tools with the intent to use them in the commission of an offense involving forceful entry into a building, where the only witness called by the defendant was not an eyewitness; despite the fact that they were not convinced beyond a reasonable doubt that the defendant actually committed the burglary. McClellan v. State, 484 So.2d 1150 (Ala.Cr.App.1985).
The possession of the tools also bears on the question of the defendant's intent. As this court has indicated, Burrell v. State, 429 So.2d 636, 639 (Ala.Cr.App.1982). It is well...
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Hagy v. Com.
...in the car was found to have red paint on it that was of the same color that is on Coca-Cola vending machines. See Poole v. State, 505 So.2d 1065, 1066-67 (Ala.Crim. App.1986) (evidence sufficient to prove possession of burglarious tool where big wrench "appeared to have paint scratches mat......
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White v. State, CR-93-776
...tool, and screwdriver in Burrell; a tire iron in Petite v. State, 520 So.2d 207 (Ala.Cr.App.1987); a lug wrench in Poole v. State, 505 So.2d 1065 (Ala.Cr.App.1986); a hammer and a crescent wrench in McGlon v. State, 504 So.2d 745 (Ala.Cr.App.1987); and a sledge hammer in Scott v. State, 491......