Powell v. State

• Decision Date: 27 April 2001
• Citation: 804 So.2d 1167
• Parties: Victor Tyrone POWELL v. STATE.
• Court: Alabama Court of Criminal Appeals

804 So.2d 1167

Victor Tyrone POWELL v. STATE.

CR-99-0945.

Court of Criminal Appeals of Alabama.

April 27, 2001.

Rehearing Denied June 8, 2001.

J. Stanton Glasscox, Oneonta, for appellant.

Bill Pryor, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.

WISE, Judge.

The appellant, Victor Tyrone Powell, was convicted of possession of marijuana in the second degree, a violation of § 13A-12-214, Ala.Code 1975. Before trial, Powell's counsel filed a motion to suppress evidence seized at the time of his arrest. Following an evidentiary hearing on the suppression motion, the district court denied the motion, proceeded with a trial on the merits, and entered a judgment finding Powell guilty. He was sentenced to 180 days in the county jail, was fined $500, and was ordered to pay court costs.

Pursuant to the provisions of Rule 30.2, Ala. R.Crim. P., Powell appealed directly to this court.

The evidence tended to show the following. Powell was driving on Alabama Highway 75 in Blount County when he was pulled over by Alabama State Trooper Craig Pruitt for driving a vehicle with only one operating headlight. When he approached Powell's vehicle, Trooper Pruitt noted a slight odor of alcohol on Powell's breath. He further noted the odor of what he described as "raw" marijuana emanating from the vehicle. When Trooper Pruitt looked inside the vehicle, he saw an open alcoholic beverage container in plain view on the floorboard of the passenger side of the vehicle; the floorboard was damp surrounding the container.

Upon further inspection, Trooper Pruitt noticed a portion of a black "fanny pack" protruding from under the driver's seat. After checking Powell's license, Trooper Pruitt called for backup and began to conduct field-sobriety tests. Powell passed the tests and was not cited for driving under the influence. When a backup officer arrived at the scene, Pruitt requested that he assist with securing the scene because of the probability that narcotics were involved.

Trooper Pruitt asked Powell if he could search the vehicle. Powell consented to a search of the vehicle. Inside the fanny pack were two cellophane bags containing a "green, leafy substance." Based on his experience, Trooper Pruitt recognized the material as marijuana. He placed the bags containing the substance in a plastic bag and followed routine chain-of-custody procedures. Powell was subsequently arrested for unlawful possession of marijuana in the second degree, a misdemeanor.

I.

Powell contends that the state did not prove "beyond a reasonable doubt" that he was guilty of possession of marijuana in the second degree. Specifically, he argues that the prosecutor's failure to present any forensic evidence regarding the presence of tetrahydrocannabinol ("THC") in the seized contraband was fatal to the establishment of a prima facie case of marijuana possession.

In Ex parte Woodall, 730 So.2d 652 (Ala.1998), the Alabama Supreme Court addressed the role of appellate courts in reviewing the sufficiency of the evidence in a criminal case:

"`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. Crim.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.Crim.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, 1055 (Ala.Crim.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 finder of fact].' Ex parte Bankston, 358 So.2d 1040, 1042 (Ala. 1978) (emphasis original)."

730 So.2d at 658.

Powell relies on this Court's decision in Boyington v. State, 748 So.2d 897 (Ala. Crim.App.1999), to support his contention that the officer's testimony alone is insufficient to support a conviction of possession of marijuana. Boyington was arrested and charged with possession of marijuana in the second degree, based on the testimony of a police officer who saw Boyington and a companion smoking what appeared to be a marijuana cigarette. At trial, the arresting officer testified that there was a very strong smell of burning marijuana in the air when he approached Boyington and his companion. When the officer identified himself as a police officer, Boyington rubbed his fingers, causing the marijuana cigarette to disintegrate; however, the officer testified, Boyington's fingers smelled like marijuana. The arresting officer also testified that he observed Boyington's companion take a green leafy substance from his pocket and throw it into the air. On appeal, this Court reversed Boyington's conviction, holding that the evidence was insufficient to support a conviction for possession of marijuana:

"We can find no case in Alabama upholding a conviction for possession of a controlled substance where the controlled substance was not confiscated from the defendant and identified or where the defendant was not in constructive possession of the controlled substance. Absent that factual scenario, the element of possession could not be established.

"In the present case, considering that the officers did not see Boyington in possession of marijuana, that Boyington did not have in his possession or was not in constructive possession of marijuana when he was apprehended, that it is not a criminal offense to smell like marijuana, and that there was a possibility that the odor of marijuana was the result of other bar patrons' smoking marijuana in the area before the officers arrived, the evidence presented at trial did not establish that Boyington was or had been in possession of marijuana."

748 So.2d at 902-03.

Boyington, however, is factually distinguishable from the instant case. Here, unlike in Boyington, Powell actually had in his possession a "green, leafy substance," which Trooper Pruitt recognized as marijuana. Trooper Pruitt confiscated the marijuana, and it was introduced as evidence at Powell's trial. Thus, the issue we must determine is whether it was incumbent upon the prosecution to establish by forensic testing that the "green, leafy substance" seized by Trooper Pruitt was marijuana. Powell has cited no authority for the proposition that the State must establish the identity of marijuana by forensic testing, and our research reveals no such requirement under Alabama law. Indeed, in Headley v. State, 720 So.2d 996, 998 (Ala.Crim.App.1998), this Court held that "the evidence does not have to consist of scientific testing, so long as the proper foundation for the arresting officer's own experience in identifying marijuana is laid." See also Hanks v. State, 562 So.2d 536, 540 (Ala.Crim.App.), rev'd on other grounds, 562 So.2d 540 (Ala.1989). Our decisions in Headley and Hanks are in accord with other jurisdictions. In Florida, for example, appellate courts have held that chemical testing of seized marijuana is not required. See Pama v. State, 552 So.2d 309, 311 (Fla.Dist.Ct.App.1989) ("it is not necessary for the state to prove the identification of marijuana by chemical or scientific means"; the testimony of "an experienced law enforcement officer" is sufficient); State v. Raulerson, 403 So.2d 1102, 1103 (Fla.Dist.Ct.App.1981) ("it is not necessary for the state to prove the identity of contraband as marijuana by chemical or scientific proof"). Other jurisdictions have held accordingly. See, e.g., State v. Northrup, 16 Kan.App.2d 443, 454-56, 825 P.2d 174, 181-82 (1992); State v. Rubio, 110 N.M. 605, 607, 798 P.2d 206, 208 (N.M.App.1990); Swain v. State, 805 P.2d 684, 686 (Okla.Crim.App.1991).

Here, Trooper Pruitt, the witness who identified the substance as marijuana, had experience in recognizing marijuana, and was familiar with its odor and appearance. Trooper Pruitt's credentials included four years of...