Robinette v. State, 4 Div. 478

• Decision Date: 08 September 1987
• Docket Number: 4 Div. 478
• Citation: 531 So.2d 682
• Parties: David M. ROBINETTE, Charles Price, Riley M. Fenn v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 682

531 So.2d 682

David M. ROBINETTE, Charles Price, Riley M. Fenn v. STATE.

4 Div. 478.

Court of Criminal Appeals of Alabama.

Sept. 8, 1987.

Rehearing Denied Oct. 13, 1987.

Cada M. Carter of Carter, Bledsoe & Hall, Dothan, for appellant robinette.

Samuel L. Adams, Dothan, for appellant Price.

Phyllis J. Logsdon, Dothan, for appellant Fenn.

Charles A. Graddick, Atty. Gen. and J. Elizabeth Kellum, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

David M. Robinette, Charles Price, Riley M. Fenn, and Ivy K. Hatcher were jointly indicted for possession of marijuana, in violation of § 20-2-70, Code of Alabama 1975. The cases were consolidated for trial and tried before a jury, and all of them were found guilty, as charged. Robinette and Price were each sentenced, as habitual offenders, to ten years' imprisonment and fined $7,500; Fenn was sentenced, as a habitual offender, to fifteen years' imprisonment and fined $15,000; and Hatcher was sentenced to eight years' imprisonment, fined $5,000, and ordered to pay court costs. Robinette, Price, and Fenn appealed, and their appeals were consolidated. Hatcher, apparently, did not appeal. We will address the appeals of Robinette, Price, and Fenn in this opinion.

Ivy K. and C.W. Hatcher resided at 3400 Cathy Lou Road, Dothan, Alabama. On October 31, 1984, several officers of the Houston County Sheriff's Department executed a search warrant at this address. The search warrant authorized a daytime search of the Hatchers' residence at 3400 Cathy Lou Road and their persons, for marijuana. Upon arrival at the residence, the officers knocked on the door. About two minutes after their knocking, appellant Price opened the door. The officers asked him if the Hatchers were at home. Price stated that they were not and that he was the only person in the house. The officers showed Price the search warrant and told him that they were going to search the house. They entered the house and discovered Ivy K. Hatcher and appellant Fenn sitting on a bed in a back bedroom. A brown paper bag, which was sitting on the floor, near the foot of the bed, contained plastic bags filled with a "green brown vegetable material." This material was later determined to be marijuana.

Upon finding the bathroom door locked, the officers asked Hatcher if anyone was in the bathroom, and she said, "No." In trying to force the bathroom door open, they discovered that someone was in the bathroom, attempting to prevent the officers from opening the door. Upon forcing the door open, they discovered appellant Robinette in the bathroom and observed him discarding something in a clothes hamper. The officers retrieved the item from the clothes hamper; it was a loaded .32 caliber pistol. Robinette was attired in a robe and was in his "stocking feet." Upon frisking Robinette, the officers discovered a syringe in his sock. No drugs were found on his person. Upon further searching of the residence, the officers discovered a bag containing "green brown vegetable material" in the trash compactor in the kitchen. This was later determined to be marijuana.

Shortly after the officers had entered the house, appellant Fenn was observed attempting to leave through the kitchen door. As an officer approached him, he threw a sack on the floor. Upon examining the sack, the officer discovered that it contained three "baggies" of greenish-brown vegetable material, which was later determined to be marijuana. Fenn was taken into custody and searched. A small envelope containing greenish-brown vegetable material and a straw containing white powder were found in his pocket. Price was searched, and no contraband was found on him; however, $5,000 was discovered in his front pocket.

There were four vehicles parked in the yard, and they were searched. In the glove compartment of Hatchers' automobile, the officers discovered a straw containing white residue. In Robinette's automobile, they discovered a set of scales; six partially-burned, hand-rolled marijuana cigarettes containing material that was later determined to be marijuana; a film canister containing greenish-brown vegetable material, later determined to be marijuana; two mirrors; and a small amount of greenish-brown seeds. In Price's automobile, they found no controlled substances, but did discover a bottle of caffeine pills, which were similar to caffeine pills found in the house. The search of the house disclosed various additional drugs and drug paraphernalia in the Hatchers' bedroom and in the half-bath adjacent to the bedroom. Among these items were scales, a mixer, a screen, funnels, mixing powder, rolling papers, bags syringes, greenish-brown vegetable matter, white powder, and various kinds of pills.

I

All three appellants contend that the trial court committed reversible error in denying their motions for judgment of acquittal because the prosecution's evidence was not sufficient to prove possession of marijuana.

Before a person can be convicted of violating § 20-2-70, it must be proven beyond a reasonable doubt that he was in actual or constructive possession of one of the substances enumerated therein. Hamilton v. State, 496 So.2d 100 (Ala.Cr.App.1986); Radke v. State, 52 Ala.App. 397, 293 So.2d 312 (1973), aff'd, 292 Ala. 290, 293 So.2d 314 (1974). Constructive possession arises only where the illegal substance is found on premises owned or controlled by the accused. Campbell v. State, 439 So.2d 718 (Ala.Cr.App.), rev'd on other ground, 439 So.2d 723 (Ala.1983); Williams v. State, 340 So.2d 1144 (Ala.Cr.App.1976), cert. denied, 340 So.2d 1149 (Ala.1977). When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances. Campbell v. State; Yarbrough v. State, 405 So.2d 721 (Ala.Cr.App.), cert. denied, 405 So.2d 725 (Ala.1981). This knowledge may be inferred from the accused's exclusive possession, ownership, and control of the premises. Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978). When the accused is not in exclusive possession of the premises, however, this knowledge may not be inferred unless there are other circumstances tending to buttress this inference. Korreckt v. State, 507 So.2d 558 (Ala.Cr.App.1986); Temple v. State. While non-exclusive possession may raise a suspicion that all the occupants had knowledge of the contraband found, a mere suspicion is not enough. Some evidence that connects a defendant with the contraband is required. Grubbs v. State, 462 So.2d 995 (Ala.Cr.App.1984); Temple v. State.

In the cases sub judice, we first consider this contention as it relates to appellant Price. There is no evidence that Price lived in or occupied any part of the house. In fact, the evidence is to the contrary. Only one bedroom was used or occupied and, obviously, that was by the Hatchers. No contraband was found on Price's person or in his automobile. There was no evidence that he was even in a position to observe any contraband. He came from the kitchen when he opened the door for the officers, but there was no evidence of contraband in plain view in the kitchen at that time. The evidence does show that he was untruthful with the officers when, upon answering the door, he told them that he was the only person in the house, and he had $5,000 on his person. As far as we can tell from the record, he was fully clothed at the time.

Just as the mere presence of a person at the time and place of a crime is not sufficient to justify a conviction for the commission of that crime, so the presence of the accused in a place where a controlled substance is found is not, in and of itself, evidence of possession. German v. State, 429 So.2d 1138 (Ala.Cr.App.1982).

"Mere presence of the accused on the premises, or simply his proximity to the drug, does not itself enable such a deduction. Nor is mere association with another, standing alone, enough even when the other is known to possess the drug. But, as has frequently been held, presence, proximity or association may establish a prima facie case of drug-possession when colored by evidence linking the accused to an ongoing criminal operation of which that possession is a part."

United States v. Staten, 581 F.2d 878, 884-85 (D.C.Cir.1978) (footnotes omitted).

The evidence offered by the prosecution to establish Price's constructive possession of the marijuana is entirely circumstantial. In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). The test to be applied is whether the jury might have reasonably found that the evidence excluded every reasonable hypothesis but guilt. Id. The action of the trial court in denying a motion for acquittal, in denying a motion to exclude the evidence, in refusing to give the affirmative charge, and in denying a motion for a new trial, must be reviewed by determining whether there existed legal evidence before the jury, at the time the motions were made, from which the jury by fair inference could have found the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978).

Applying these legal principles to the facts of the Price case, we must conclude that there was insufficient evidence presented by the prosecution to connect Price with the marijuana. The evidence cannot support a fair inference by the jury that Price had knowledge of the contraband. The prosecution's evidence fell short of excluding every reasonable hypothesis except that of guilt. Admittedly, Price's conduct was suspicious; however, the evidence connecting Price with the marijuana--his presence in the house, his actions at the door, and the $5,000 on his person--standing alone, could be reasonably explained on a theory consistent with his innocence. The record supports a reasonable inference that Price was a...