W.L.L. v. State

• Citation: 649 So.2d 1335
• Parties: W.L.L., Jr., alias v. STATE. CR 93-74.
• Decision Date: 06 May 1994
• Court: Alabama Court of Criminal Appeals

Page 1335

649 So.2d 1335

W.L.L., Jr., alias v. STATE.

CR 93-74.

Court of Criminal Appeals of Alabama.

May 6, 1994.

Rehearing Denied July 8, 1994.

Certiorari Denied Oct. 21, 1994

Alabama Supreme Court 1931446.

Shirley Chapin, Tuscaloosa, for appellant.

James H. Evans, Atty. Gen., and Margaret Childers, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

W.L.L., Jr., the appellant, was adjudicated a youthful offender based upon his illegal possession of crack cocaine. He was sentenced to two years' probation and was ordered to pay a $150 fine, $150 to the Alabama Crime Victims' Compensation Fund, and court costs. He raises two issues on this direct appeal from that adjudication.

I.

The appellant contends that the evidence is insufficient to prove he had constructive possession of the cocaine. We affirm the judgment of the trial court on this issue for two separate and alternative reasons.

Initially, we affirm the judgment of the trial court because this issue was not preserved for review. Although this issue was never presented to the trial court, the appellant argues that because he was granted youthful offender status and tried in a bench trial in the circuit court, his failure to raise the sufficiency issue does not bar appellate review. The appellant cites Ex parte Vaughn, 495 So.2d 83 (Ala.1986), as authority for this contention. Vaughn stated that where the trial judge is the trier of the facts, "Rule 52(b) [, A.R.Civ.P., ¹ ] provides an exemption from the requirement of invoking a ruling by the trial court on the issue of evidentiary insufficiency when written findings of fact are made." Vaughn 495 So.2d at 87 (emphasis added). The Vaughn court reasoned that "[t]he trial court's ruling on the sufficiency of the evidence is implicit" in the court's judgment because "by making written findings of fact, the trial judge has had the additional opportunity to reconsider the evidence and discover and correct any error in judgment which he or she may have made upon initial review." Vaughn, 495 So.2d at 87. "[W]hen written findings of fact are made, they serve the same useful purpose as does an objection to the trial court's findings." Vaughn 495 So.2d at 87.

Vaughn is not applicable in the present case because the trial court did not make any written findings of fact. The appellant relies on the trial court's oral conclusions (R. 103-06) as findings of fact. This will not suffice as a substitute for an objection because it does not reflect the trial court's "additional opportunity to reconsider the evidence and correct any error in judgment ... made upon initial review." Vaughn, 495 So.2d at 87.

Moreover, in Vaughn the appellant was tried in the juvenile court ² and was adjudicated a delinquent child, as that term is defined in Ala.Code 1975, § 12-15-1(9). In the present case the appellant was transferred from the juvenile court to circuit court where he was to be tried as an adult on a criminal charge. See Ala.Code 1975, § 12-15-34.

The granting of youthful offender status is largely discretionary with the trial judge. Although the rules of evidence are relaxed in a youthful offender proceeding, the Rules of Criminal Procedure apply in such a proceeding. Therefore, the appellant's failure to object to the sufficiency of the evidence at trial bars the issue from appellate review.

Our second reason for affirming the judgment of the trial court is because our review shows that sufficient evidence was presented to adjudicate the appellant guilty of constructive possession of crack cocaine.

" 'The apparent purpose of a constructive possession doctrine is expansion of the scope of possession statutes to encompass those cases where actual possession at the time of the arrest cannot be shown, but "where the inference that there has been possession at one time is exceedingly strong." ' Whitebread and Stevens, Constructive Possession in Narcotics Cases: To Have and Have Not, 58 Va.L.Rev. 751, 755 (1972), (quoting First Report of the National Commission on Marijuana and Drug Abuse, Appendix 139)."

Hamilton v. State, 496 So.2d 100, 103-04 (Ala.Cr.App.1986).

" 'The offense of possession of illegal drugs is susceptible of joint commission. Green v. State, 30 Ala.App. 94, 2 So.2d 324 [, cert. denied, 241 Ala. 288, 2 So.2d 326 (1941) ]; Gunnells v. State, 21 Ala.App. 648, 111 So. 320 [ (1927) ]. Further the guilt of the accused does not necessarily depend upon proof of his ownership of the drugs. Womack v. State, 34 Ala.App. 487, 41 So.2d 429 [ (1949) ]; Thompson v. State, 32 Ala.App. 402, 27 So.2d 55 [, cert. denied, 248 Ala. 270, 27 So.2d 59 (1946) ]. However, there must be evidence from which the jury might conclude beyond a reasonable doubt that defendant knew of the presence of the drugs. Such guilty knowledge may be established by circumstantial evidence. Womack v. State, supra; Thompson v. State, supra.' "

Pryor v. State, 48 Ala.App. 465, 468, 265 So.2d 907, 909-10 (Cr.App.1972).

Here, the State presented evidence from which the trier of fact could reasonably conclude that the appellant had the cocaine in his possession and that he attempted to hide it from the police. Sergeant Willie Earl Prewitt of the Northport Police Department testified that while on patrol within the a particular "area of housing authority" he passed a parked vehicle, which was emitting very loud music. Prewitt stated that because the rental leases in this public housing area prohibit the playing of loud music and because of numerous complaints concerning loud music in the area, he decided to ask the occupants of the car to turn down the volume of the music. Although the car drove off before Prewitt could return to its location, Prewitt never lost sight of the car, and he followed it for about one and one-half miles. The license plate number on the car reflected that it was registered to Lacedric Jones, who was a "known dope dealer for the Tuscaloosa area," and for whom there existed outstanding writs of arrest. R. 19, 31.

Prewitt testified that he turned on his blue light as the car he was following approached the Sonic Restaurant. The car pulled into an ordering stall at the Sonic. The driver of the car, Jerome Prince, was in Prewitt's sight the entire time. Prewitt testified that Prince did not throw anything underneath the car at any time during the stop. R. 75, 80. However, Prewitt testified that he observed the passenger, the appellant, open the passenger door and "ben[d] over like he appeared to put something under [the car]." R. 9. Prewitt said that he could not see the appellant's hands and could not say whether the appellant actually put anything out of the car. R. 12, 23. Prewitt stated that he ordered the appellant to shut the door, then went to the driver's side of the car and asked Prince to step out of the car and to produce his license.

As Prince exited the car, Prewitt shined his flashlight inside the car and saw what appeared to be a "crack rock" on the driver's side floorboard. R. 9, 24. Prewitt could not explain why his written report stated that the cocaine was under the floormat when he testified that he was sure that it was on top of the floormat by the gas pedal. Other police units arrived at the scene and searched the car. Prewitt stated that Officer Joel Willingham found what appeared to be a crack cocaine rock under the passenger side of the car. R. 27. At that point the search stopped until the Narcotics Division arrived.

Officer Joel Willingham, a patrol officer with the Northport Police Department, testified that he found a matchbox containing eight rocks of crack cocaine underneath the car on the passenger side, within arm's reach where the appellant was sitting in the car. R. 36, 38.

The appellant denied any knowledge of the presence of any cocaine either inside or outside the car. R. 90. Several days after this incident the appellant told the police that he had learned that the cocaine belonged to Prince and that Prince had dropped the matchbox containing the cocaine outside the car and had kicked it under the car to the passenger side.

The State presented sufficient evidence to prove constructive possession.

"[A] defendant's mere presence in an automobile in which an illegal substance is found will not support his conviction for possession of that substance unless the state introduces other evidence in support of the defendant's possession. Story v. State, 435 So.2d 1360 (Ala.Cr.App.1982), rev'd on other ground[s], 435 So.2d 1365 (Ala.1983). The kinds of other evidence or circumstances that could provide the additional support necessary to show possession are unlimited and will vary with each case. Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978)."

Perry v. State, 534 So.2d 1126, 1128 (Ala.Cr.App.1988). "The defendant's knowledge of the presence of the substance may be shown by circumstantial evidence." Perry, 534 So.2d at 1128. "Knowledge is usually established by circumstantial evidence." Rowell v. State, [Ms. CR-90-1669, September 30, 1993] --- So.2d ----, ---- (Ala.Cr.App.1993). " '[G]uilty knowledge may be established by the surrounding facts and circumstances.' " Coslett v. State, 641 So.2d 302, 306 (Ala.Cr.App.1993).

In this case, abundant circumstances existed from which the appellant's knowledge of the presence and control of the cocaine could be inferred. "Proximity to illegal drugs, presence on the property where they are located, or mere association with persons who do control the drugs may be sufficient to support a finding of possession when accompanied with testimony connecting the accused with the incriminating surrounding circumstances." German v. State, 429 So.2d 1138, 1142 (Ala.Cr.App.1982).

Officer Prewitt testified that Prince remained in his sight at all times and that Prince did not throw anything under the car, but he observed the appellant move in a manner that suggested to him that the appellant was putting something underneath the car, even though he...