Story v. State, 5 Div. 659

• Decision Date: 23 November 1982
• Docket Number: 5 Div. 659
• Citation: 435 So.2d 1360
• Parties: Brenda Diane STORY, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1360

435 So.2d 1360

Brenda Diane STORY, alias v. STATE.

5 Div. 659.

Court of Criminal Appeals of Alabama.

Nov. 23, 1982.

Rehearing Denied Dec. 28, 1982.

William T. Denson, Goodwater, for appellant.

Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.

DeCARLO, Judge.

Possession of methaqualone; four years.

Appellant was convicted of possessing methaqualone in violation of the Alabama Uniform Controlled Substances Act, § 20-2-70, Code of Alabama 1975.

While patrolling U.S. Highway 280 during the early morning hours of August 2, 1980, Dadeville Police Officers J.W. Tapley and Leonard Brand observed a 1973 Cadillac weaving back and forth across the center lane of the highway. They stopped the car and arrested the driver, Michael Dean Walls, for D.U.I. Appellant was the only other occupant and was seated in the front passenger seat.

Walls was placed in the patrol car and transported to the Dadeville Courthouse for a breath alcohol analysis (P.E.I.) test. Brand drove the Cadillac, with appellant, into Dadeville and parked it in front of City Hall, which is approximately a block from the courthouse. Appellant was informed that she could wait inside City Hall until the P.E.I. test was administered to Walls. She got out of the car, taking her purse, and locked the door on the passenger side. Brand locked the door on the driver's side.

According to Brand, upon entering the Cadillac he had observed a pistol on the floorboard of the driver's seat and a shotgun in the back seat. After picking up a third officer to administer the P.E.I. test, Brand returned to the Cadillac to remove the weapons. The dash and interior lights came on when he unlocked and opened the door on the driver's side. When he leaned down to retrieve the pistol, Brand observed a clear plastic bag protruding from underneath the passenger seat. The bag contained green vegetable material and was partially inside another bag resembling a cosmetic bag or a man's shaving kit. (The court instructed the attorneys and witnesses to refer to this second bag as merely "State's Exhibit 1," which we have done in this opinion.)

Brand picked up the clear plastic bag which came out of State's Exhibit 1 bag, along with some money. The State's Exhibit 1 bag had a spring-type opening and, after the clear plastic bag and the money were retrieved, it snapped closed. Brand then opened State's Exhibit 1 bag which contained two bags of pills and "some paraphernalia which is used in conjunction with marijuana." Both appellant and Walls denied ownership of the State's Exhibit 1 bag.

Brand stated that he turned the State's Exhibit 1 bag and its contents over to Investigator David Berry, who delivered them to the Department of Forensic Sciences in Auburn. Taylor Nogel, a forensic drug analyst, testified that tests performed on two of the 198 pills in State's Exhibit 1 bag revealed that the tablets contained methaqualone, a controlled substance.

Ronnie Thomas testified that around 10:00 P.M. of August 1, 1980, he saw appellant and her cousin, Mike Branch, at the access area close to a local marina. Appellant had a small bag in her hand which Thomas said looked "something like" the State's Exhibit 1 bag, but that he could not be sure because there was no lighting at the access area.

Appellant's cousin, Michael Branch, stated he had never seen State's Exhibit 1 in appellant's possession, nor in anyone's possession. Branch said on the night in question he introduced appellant to Mike Walls at the Exit Inn and appellant left with Walls and he (Branch) left in appellant's car.

Walls testified on rebuttal for the State that he was currently serving a sentence for violation of the controlled substances act. He stated that Branch had introduced him to appellant and that the State's Exhibit 1 bag did not belong to him. On cross-examination, he acknowledged that he had purchased the 1973 Cadillac the afternoon of August 1, 1980.

I

Appellant challenges the search of the Cadillac and asserts that the elements required to support a plain view search were not present.

Appellant asserted neither a property nor possessory interest in the Cadillac, nor an interest in the State's Exhibit 1 bag. Therefore, appellant has failed to establish her standing to challenge the search. Rakas v. Illinois, 439 U.S. 128, 148, 99 S.Ct. 421, 433, 58 L.Ed.2d 387 (1978); McCraney v. State, 381 So.2d 102, 105 (Ala.Cr.App.1980).

II

Appellant contends the evidence was insufficient to support her conviction and the trial court erred in overruling her motion to exclude.

As Judge Bowen, writing for this court, stated:

"In reviewing the sufficiency of the evidence the appellate courts of this State are bound by several well settled rules. It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt and to a moral certainty. Instead, the function of this Court is to determine whether there is legal evidence from which a jury could by fair inference find the defendant guilty.

"In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State and accord the State all legitimate inferences therefrom. The evidence must be considered in the light most favorable to the prosecution.

"Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. A verdict of conviction will not be set aside on the ground of insufficiency of the evidence, unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this Court that it was wrong and unjust." [Citations omitted] Johnson v. State, 378 So.2d 1164, 1169 (Ala.Cr.App.1979), cert. denied, 378 So.2d 1173 (Ala.1979).

A prima facie case of possession of a prohibited drug or substance must show constructive possession by the accused of a controlled substance plus knowledge on his part of the presence of the narcotic. Yarbrough v. State, 405 So.2d 721 (Ala.Cr.App.1981); Roberts v. State, 349 So.2d 89 (Ala.Cr.App.1977), cert. denied, 349 So.2d 94 (Ala.1977). Constructive possession of a narcotic requires proof beyond a reasonable doubt that the defendant had knowledge of the drug's presence, Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978), which may be established by the surrounding facts and circumstances, McCord v. State, 373 So.2d 1242 (Ala.Cr.App.1979).

While the defendant's mere presence in an automobile where illicit drugs are found will not support a conviction for possession, unlawful possession may be inferred when his presence is coupled with the existence of additional evidentiary factors. Reed v. State, 368 So.2d 326, 328 (Ala.Cr.App.1979). The defendant's proximity to the drugs is an evidentiary factor which may be considered. Reed, supra; 57 A.L.R.2d 1319, 1329 (1974).

In the present case, the tablets containing methaqualone were found underneath the appellant's seat. Thomas testified that when he saw appellant earlier in the evening, she had the bag in which the tablets were found. Constructive possession and knowledge of the presence of the drug could be inferred from this evidence.

The evidence in this case raised a question of fact for the jury which, if believed, is sufficient to support the conviction. Therefore, the trial court properly overruled appellant's motion to exclude. Roberts v. State, supra.

III

Appellant asserts that the trial court "should have granted a mistrial or otherwise should have instructed the jury to disregard" the following statements contained in the assistant district attorney's closing argument:

"Everyone of you know the most serious problem we have right now is drugs--

....

"We have a good community down here, you all probably lived here longer than I have, but I don't want this kind of stuff going on down here, and I don't believe you do."

Appellant objected without specifying any grounds, and moved for a mistrial. In each instance, the motion for mistrial was denied. However, no ruling was sought or obtained on the objection, nor was a motion made to exclude or for curative instructions.

The granting of a mistrial is within the sound discretion of the trial judge and his decision will not be disturbed on appeal unless a clear abuse of discretion is shown. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Diamond v. State, 363 So.2d 109 (Ala.Cr.App.1978); Napier v. State, 337 So.2d 62 (Ala.Cr.App.1976). No abuse of discretion was shown in this case.

In the absence of a request for a curative instruction, and an objection to the court's failure to give such an instruction, the issue is not properly preserved for review. Aplin v. State, [Ms. 4 Div. 893, August 24, 1982] 421 So.2d 1299 (Ala.Cr.App.1982); Yates v. State, 390 So.2d 32 (Ala.Cr.App.1980); Robinson v. State, 389 So.2d 144 (Ala.Cr.App.1980), cert. denied, 389 So.2d 151 (Ala.1980). Moreover, both remarks were permissible and therefore required no curative instruction by the trial court ex mero motu. See Aplin, supra; Moberg v. State, 385 So.2d 74 (Ala.Cr.App.1980); Chatom v. State, 360 So.2d 1068 (Ala.Cr.App.1978), cert. denied, 360 So.2d 1074 (Ala.1978).

IV

Appellant contends that the trial court committed reversible error in denying her motion of autrefois convict without a hearing and without the State having filed a demurrer thereto. This motion was filed in open court on the date of trial.

Ordinarily, a court may not overrule a motion of autrefois convict, or plea of former jeopardy, without allowing the party an opportunity to submit supporting evidence. Berland v. City of Birmingham, 36 Ala.App. 488, 60 So.2d 377 (1952), cert. denied, 257 Ala. 571, 60 So.2d 378 (1952). An accused is entitled to a jury trial on the issues of fact raised by the plea and the issue of former jeopardy should be submitted for the...