Sankey v. State
Decision Date | 30 March 1990 |
Docket Number | 3 Div. 221 |
Citation | 568 So.2d 366 |
Parties | Melvin SANKEY v. STATE. |
Court | Alabama Court of Criminal Appeals |
Eric A. Bowen, Montgomery, for appellant.
Don Siegelman, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.
A Montgomery County grand jury returned a two-count indictment against the appellant, charging him with theft of property in the first degree, in violation of § 13A-8-3, Code of Alabama (1975), or in the alternative, with receiving stolen property in the first degree, in violation of § 13A-8-17, Code of Alabama (1975). Following a jury trial, the appellant was found guilty of receiving stolen property in the first degree and was sentenced under the Habitual Felony Offender Act to a term of ten years' imprisonment.
The evidence presented by the prosecution tended to establish the following facts:
A 1976 Pontiac Ventura automobile belonging to Woodrow Sadler was stolen from the driveway next to Mr. Sadler's home. Mr. Sadler had left the key ring holding his car keys either in the automobile or in the door of his home. Upon realizing that the car was missing, Sadler notified the police and a report was issued regarding the vehicle.
That same day, Officer K.C. Baldwin of the Montgomery Police Department noticed a maroon-colored automobile that was stopped at an intersection. Officer Baldwin saw that two of the car's tires were flat and that the right front of the car appeared to have been damaged, so he stopped to assist the motorist. Seeing no driver, Officer Baldwin approached the car and looked inside, at which time he saw the appellant lying on the front seat. The appellant did not respond when Baldwin first spoke to him, and Baldwin noticed a strong smell of alcoholic beverage coming from the car. Baldwin finally got the appellant out of the car and asked him some questions; the appellant stated his name, but said nothing further, and could not walk without assistance. Upon discovering from a radio dispatch that the car had been stolen, Baldwin read the appellant his Miranda rights and then arrested him. The car and the appellant were taken to the police station.
The appellant was questioned by Detective L.O. Perdue, who testified that the appellant smelled of alcohol but appeared alert. After Detective Perdue gave the appellant his Miranda rights, the appellant gave him an oral statement in which he alleged that he had been picked up in the car by a girlfriend, Wanda Gibbs. The appellant gave Detective Perdue a telephone number and an address where Gibbs could allegedly be reached, but the telephone number had been disconnected and the address was non-existent. Subsequent efforts by police to locate her were unsuccessful. The appellant's statement contained no explanation of how he came into possession of Sadler's car, and the appellant did not testify at trial.
As his first issue, the appellant argues that the State failed to prove that he was in "possession" of the stolen automobile, as required by § 13A-8-16(b)(2), Code of Alabama (1975). As his fourth issue, the appellant argues that the State failed to prove that the value of the stolen car which he was convicted of receiving exceeded $1,000.00, as required by § 13A-8-17(a), Code of Alabama (1975). In deciding these issues adversely to the appellant, this Court does not find it necessary to reach the merits of his claims, since neither issue is preserved for appellate review.
In Ex parte Maxwell, 439 So.2d 715 (Ala.1983), the Alabama Supreme Court held that the defendant's motion to exclude the prosecution's evidence on the ground that it had failed to prove a prima facie case was sufficient to preserve for appellate review the issue of the city of Mobile's failure to introduce the relevant ordinance into evidence. In reversing this Court's decision, the Maxwell Court held as follows:
Id. at 717. See also, Fortier v. State, 515 So.2d 101, 104 (Ala.Cr.App.1987), cert. denied, 484 U.S. 1043, 108 S.Ct. 776, 98 L.Ed.2d 862 (1988).
The rule of law in Maxwell, however, does not apply to cases in which a defendant's motion for judgment of acquittal states very specific grounds, "none of which can be construed as attacking each and every element" of the offense charged, Hanson v. City of Trussville, 539 So.2d 1082, 1084 (Ala.Cr.App.1988), or cases where a defendant's motion directs the trial court's attention to matters different from those raised on appeal. Howard v. State, 506 So.2d 351, 353 (Ala.Cr.App.1986). At the close of the State's case, appellant's attorney made an oral motion for a directed judgment of acquittal, arguing as follows
This argument appears to be directed at the charge of theft of property in the first degree, and does not appear to challenge the sufficiency of evidence relating to the alternative charge of receiving stolen property in the first degree.
Two days after the verdict was returned against the appellant, his attorney filed a written motion for judgment of acquittal with the trial court, which alleged the following:
However, during a subsequent hearing on this motion, counsel's argument was confined almost entirely to the contention that the evidence presented by the State at trial, if it proved any crime at all, showed that the appellant stole the automobile which he was convicted of receiving, and that a defendant cannot be convicted of receiving property that was stolen by him.
Washington v. State, 555 So.2d 347 (Ala.Cr.App.1989). As the issues now before this Court were never raised before the trial court, they are not preserved for our review. Ex parte Frith, 526 So.2d 880, 882 (Ala.1987); Dixon v. State, 476 So.2d 1236 (Ala.Cr.App.1985).
Moreover, the appellant's argument that the State failed to prove that he was in "possession" of the stolen car is not supported by the record of this case.
Boykin v. State, 398 So.2d 766, 769 (Ala.Cr.App.1981), cert. denied, Ex parte Boykin, 398 So.2d 771 (Ala.1981). Cheatham v. State, 431 So.2d 1350, 1354 (Ala.Cr.App.1983).
Officer Baldwin testified at trial that, when he first reached the stolen Pontiac, he noticed that the vehicle had two flat tires and had been damaged on its right front side. Officer Baldwin also testified that the appellant, who was the only occupant of the car, was lying in the front seat, and did not respond to him. The jury could reasonably infer from Officer Baldwin's testimony that the Pontiac was under the appellant's "power and dominion." Boykin, supra. The appellant's argument as to this issue must therefore fail.
The appellant argues that the prosecution failed to show that he had "guilty knowledge" that the Pontiac was stolen and that the State therefore failed to prove a prima facie case of receiving stolen property in the first degree.
To continue reading
Request your trial-
In re Bahta
...constitutes guilt of theft by receiving. See also People v. Watts, 370 N.E.2d 583 (Ill. App. Ct. 1977). But see Sankey v. State, 568 So. 2d 366 (Ala. Crim. App. 1990) (holding that where a defendant offered no explanation for being found in a parked stolen automobile, his possession did not......
-
In re Bahta
...constitutes guilt of theft by receiving. See also People v. Watts, 370 N.E.2d 583 (Ill. App. Ct. 1977). But see Sankey v. State, 568 So. 2d 366 (Ala. Crim. App. 1990) (holding that where a defendant offered no explanation for being found in a parked stolen automobile, his possession did not......
-
Spangler v. State, CR-96-0187
...degree was waived in the appellant's motion for a judgment of acquittal, which contained very specific grounds. See, Sankey v. State, 568 So.2d 366 (Ala.Cr.App.1990). However, the issue of the sufficiency of the evidence was adequately preserved for this Court's review by the appellant's mo......
-
Wasp v. State
...v. State, 647 S.W.2d 300, 303-04 (Tex.App.1982)." Ashurst v. State, 462 So.2d 999, 1004 (Ala.Cr.App.1984). See also Sankey v. State, 568 So.2d 366, 369 (Ala.Cr.App.1990). Although the State failed to prove the exact date on which the appellant was in actual possession of the property, the S......