Toombs v. State

• Decision Date: 17 September 2021
• Docket Number: CR-19-1013
• Citation: 350 So.3d 18
• Parties: Moriale Eugene TOOMBS v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

350 So.3d 18

Moriale Eugene TOOMBS

v.STATE of Alabama

CR-19-1013

Court of Criminal Appeals of Alabama.

September 17, 2021

Terrell E. McCants of Burrell & McCants, LLC, Birmingham; and Lisa M. Ivey of Stubbs, Sills & Frye, P.C., Anniston, for appellant.

Steve Marshall, att'y gen., and Laura Irby Cuthbert, asst. att'y gen, for appellee.

WINDOM, Presiding Judge.

Moriale Eugene Toombs appeals the circuit court's order revoking his probation. In 2017, Toombs was convicted of unlawful possession of a controlled substance with intent to distribute, see § 13A-12-211(c), Ala. Code 1975; unlawful possession of a controlled substance, see § 13A-12-212, Ala. Code 1975; and attempting to elude a law-enforcement officer, see § 13A-10-52, Ala. Code 1975. Toombs was sentenced for the 3 convictions to 10 years in prison, 5 years in prison, and 12 months in jail, respectively. Toombs's sentences for his felony convictions were split, and Toombs was placed on probation following his release from incarceration in March 2019.

In March 2020, Toombs's probation officer filed a delinquency report, alleging that Toombs had violated the terms and conditions of his probation by committing the following new offenses: two counts of unlawful distribution of a controlled substance, see § 13A-12-211(a), Ala. Code 1975; unlawful possession of a controlled substance with intent to distribute, see § 13A-12-211(d), Ala. Code 1975; unlawful possession of a controlled substance, see § 13A-12-212, Ala. Code 1975; first-degree unlawful possession of marijuana, see § 13A-12-213, Ala. Code 1975; and unlawful possession of drug paraphernalia, see § 13A-12-260, Ala. Code 1975.

A probation-revocation hearing was held on June 25, 2020. Sergeant Fred White with the Tallapoosa County Narcotics Task Force testified that law enforcement had received complaints in January 2020 about suspected drug activity at a residence on Carolyn Road in Alexander City. The task force established surveillance of the residence. Sgt. White testified that the residence, which was owned by Dewayne Jackson, did not have power or running water. Sgt. White added that Jackson had not been at the Carolyn Road residence since December 2019. Since that time, Jackson either had been in jail -- as he was at the time of Toombs's arrest in March 2020 -- or staying at his sister's house.

While conducting surveillance at the Carolyn Road residence on March 6, 2020, Sgt. White and other task-force members saw a vehicle arrive at the residence. Sgt. White testified that he "observed what appeared to be a drug transaction." (R. 8.) After the vehicle left the residence, the members of the task force initiated a traffic stop of the vehicle. During the traffic stop, substances believed to be illegal narcotics were discovered. Sgt. White stated that he had seen the individuals in the vehicle purchase the narcotics from Toombs. The task force obtained an arrest warrant for Toombs, and, later that day, returned to Carolyn Road residence to arrest Toombs for distribution of a controlled substance.

When the officers returned to the residence, Toombs's vehicle was not there. The officers waited nearby, and Toombs soon returned in his vehicle and went inside the residence. The officers approached the residence to execute the arrest warrant. When the officers entered the residence, they saw digital scales and what appeared to be cocaine on an ironing board near the kitchen.¹ Keys were also on the ironing board. Toombs was standing in the living room near the front door.

At the conclusion of the testimony at the probation-revocation hearing, the circuit court stated that it would take the matter under advisement, and it allowed Toombs the opportunity to submit an alternative other than the revocation of his probation. Toombs subsequently filed a treatment plan, to which the State objected. On July 7, 2020, the circuit court revoked Toombs's probation. Toombs filed a motion to reconsider, which was denied by operation of law.

On appeal, Toombs argues: 1) that the evidence was insufficient to revoke his probation and 2) that the circuit court exceeded its discretion by fully revoking his probation instead of imposing a less onerous sanction.

I.

Toombs argues that the evidence presented at the hearing was insufficient to revoke his probation. Specifically, Toombs asserts that the State failed to present sufficient evidence that he had distributed a controlled substance or that he was in constructive possession of the alleged cocaine and drug paraphernalia found inside the Carolyn Road residence.

"The standard of proof in probation revocation hearings is not the same as that in a criminal trial. It is to the ‘reasonable satisfaction’ rather than beyond a reasonable doubt or by a preponderance of the evidence." Hall v. State, 681 So. 2d 251, 252 (Ala. Crim. App. 1996) (quoting Ex parte Belcher, 556 So. 2d 366, 368-69 (Ala. 1989) ). In Ex parte Caffie, 516 So. 2d 831 (Ala. 1987), the Alabama Supreme Court stated:

" ‘ "There is no definite criterion or measure of proof necessary to justify the revocation of one's probation." Wright v. State, 349 So. 2d 124 (Ala. Crim. App. 1977). The evidence need not "be strong enough to convince the court beyond a reasonable doubt that the probationer has violated a term of his probation," Carter v. State, 389 So. 2d 601 (Ala. Crim. App. 1980) ; it needs only to reasonably satisfy the court of the truth of the charge. Goodrum v. State, 418 So. 2d 942 (Ala. Crim. App. 1982). Absent a gross abuse of discretion, the trial court's ruling in a probation revocation will not be disturbed by this Court. Wright, supra. ’ "

516 So. 2d at 833-34 (quoting Rice v. State, 429 So. 2d 686, 687 (Ala. Crim. App. 1983) ).

" ‘While proximity to a contraband alone is not enough to establish constructive possession, "where other circumstantial evidence ... is sufficiently probative, proximity to contraband coupled with inferred knowledge of its presence will support a finding of guilt of such charges." Soriano v. State, 527 So. 2d 1367, 1372 (Ala. Cr. App. 1988) ; United States v. Whitmire, 595 F.2d 1303, 1316 (5th Cir. 1979), cert. denied, 448 U.S. 906, 100 S. Ct. 3048, 65 L.Ed. 2d 1136 (1980).’

" Mobley v. State, 563 So. 2d 29, 32 (Ala. Crim. App. 1990). ‘ "[T]he voluntary presence of the accused in an area obviously devoted to preparation of drugs for distribution is a circumstance potently indicative of his involvement in the operation." ’ German v. State, 429 So. 2d [1138] at 1142 [(Ala. Crim. App. 1982) ], quoting United States v. Staten, 189 U.S. App. D.C. [100] at 107 n.67, 581 F.2d [878] at 885 n.67 [(1978)]."

Flake v. State, 980 So. 2d 440, 443-44 (Ala. Crim. App. 2007).

" ‘Furthermore, knowledge is usually established by circumstantial evidence.’ Mitchell v. State, 713 So. 2d 981, 984 (Ala. Crim. App. 1997), citing Rowell v. State, 666 So. 2d 830 (Ala. 1995), and Ward v. State, 484 So. 2d 536 (Ala. Crim. App. 1985). Moreover, constructive possession of a controlled substance may be established by circumstantial as well as direct evidence. Knight v. State, 622 So. 2d 426, 430-31 (Ala. Crim. App. 1992). Finally, ‘ "[t]he kinds of circumstances which may provide a connection between a defendant and the contraband are unlimited and will naturally depend on the facts of each particular case." ’ McGruder v. State, 560 So. 2d 1137, 1140 (Ala. Crim. App. 1989), quoting Temple v. State, 366 So. 2d 740, 743 (Ala. Crim. App. 1978)."

Williams v. State, 55 So. 3d 366, 375-76 (Ala. Crim. App. 2010).

Although Toombs did not own the Carolyn Road residence, he had access to the residence and was the sole occupant at the time the officers entered. Members of the task force observed Toombs coming and going from the residence, from which Toombs appeared to be selling narcotics. When members of the task force entered the residence to execute an arrest warrant, drug paraphernalia and what appeared to be cocaine were found in plain view on an ironing board near the kitchen. Keys were also on the ironing board. Consequently, there could be little if any doubt that Toombs had knowledge of the cocaine and paraphernalia in the residence. Thus, sufficient evidence existed from which the circuit court could have been reasonably satisfied that Toombs had violated the terms and conditions of his probation by unlawfully possessing a controlled substance and drug paraphernalia. Because this Court determines that there was sufficient evidence to revoke Toombs's probation on the charges that he unlawfully possessed cocaine and drug paraphernalia, we need not address whether the evidence was sufficient to find that he violated his probation by committing the other offenses. See Beckham v. State, 872 So. 2d 208, 211 (Ala. Crim. App. 2003). Therefore, Toombs is due no relief.²

II.

Toombs argues that the circuit court erred when it failed to impose a lesser sanction than full revocation for his violating probation. Rule 27.6, Ala. R. Crim. P., provides that, if the circuit court finds that a probationer has violated the terms or conditions of probation, the circuit court "may revoke, modify, or continue probation." Rule 27.6(e).

"[W]hether revocation and imposition of the original sentence or some other disposition is appropriate is a matter within the sound discretion of the trial court. Absent a clear abuse of discretion, a reviewing court will not disturb a trial court's conclusions in a probation-revocation proceeding, including the determination whether to revoke, modify, or continue the probation."

Holden v. State, 820 So. 2d 158, 160 (Ala. Crim. App. 2001). Because there was sufficient evidence to reasonably satisfy the circuit court that Toombs had violated the terms and conditions of his probation, the circuit court did not abuse its discretion in revoking Toombs's probation and ordering that Toombs serve the remainder of his sentences.

Accordingly, the judgment of the circuit court is affirmed.

AFFIRMED.

Kellum and Cole, JJ.,...