Wallace v. State
Decision Date | 15 February 2013 |
Docket Number | CR-10-1464 |
Parties | Emmett Grady Wallace v. State of Alabama |
Court | Alabama Court of Criminal Appeals |
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Appeal from Montgomery Circuit Court
On Application for Rehearing
The opinion issued on June 29, 2012, is hereby withdrawn, and the following opinion is substituted therefor.
The appellant, Emmett Grady Wallace, was convicted of the chemical endangerment of a child, a violation of § 26-15-3.2(A), Ala. Code 1975, and the unlawful manufacture of a controlled substance, i.e., methamphetamine, a violation of § 13A-12-218, Ala. Code 1975. He was sentenced to 10 years' imprisonment on each conviction, the sentences to be served concurrently. This appeal followed.
Wallace first argues that the State failed to present sufficient evidence to convict him of manufacturing methamphetamine because, he says, it failed to prove that the substance was in fact methamphetamine or that he possessed any precursor chemical as that term is defined in § 20-2-181, Ala. Code 1975. Specifically, he argues that the evidence was insufficient because the State failed to present the testimony of a forensic or scientific expert that the substance was methamphetamine or that he possessed a precursor chemical.
At the close of the State's case, Wallace moved for a judgment of acquittal and argued: (R. 292.) The circuit court denied the motion. (R. 299.)
Section 13A-12-218, Ala. Code 1975, provides, in relevant part:
Section 13A-12-217, Ala. Code 1975, provides, in pertinent part:
Section 20-2-181(d), Ala. Code 1975, addresses precursor chemicals and states:
The indictment charged Wallace as follows:
"Emmett Grady Wallace . . . whose name is otherwise unknown to the Grand Jury, did knowingly manufacture a controlled substance in Schedules I to V, to-wit: METHAMPHETAMINE, and/or possess precursor substances, in any amount, with the intent to unlawfully manufacture a controlled substance, as determined in Section 20-2-181 of the Code of Alabama 1975, and in conjunction therewith, did also establish a clandestine laboratory operation which was to take place or did take place within 500 feet of a residence, place of business, church, or school, to-wit: a residence; and/or established a clandestine laboratory operation for the production of controlled substances, to-wit: METHAMPHETAMINE; and/or a person under the age of 17, [E T 1 was present during the manufacturing process in violation of section 13A-12-218 of the Code of Alabama aaainst the peace and dianitv of the State of Alabama."
When reviewing whether the State has presented sufficient evidence to support a conviction, we keep in mind the following:
Breckenridge v. State, 628 So. 2d 1012, 1018-19 (Ala. Crim. App. 1993).
'"Circumstantial evidence is not inferior evidence, and it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant's guilt. Ward v. State, 557 So. 2d 848 (Ala. Cr. App. 1990). In reviewing a conviction based in whole or in part on circumstantial evidence, the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cumbo v. State, 368 So. 2d 871 (Ala. Cr. App. 1978), cert. denied, 368 So. 2d 877 (Ala. 1979).'"
Lockhart v. State, 715 So. 2d 895, 899 (Ala. Crim. App. 1997), quoting Ward v. State, 610 So. 2d 1190, 1191-92 (Ala. Crim. App. 1992).
The State's evidence tended to show that on June 30, 2010, Officer Christopher Owenby of the Eclectic Police Department was investigating a theft when he learned that property from the theft had been pawned at a pawnshop in Montgomery. Officer Owenby obtained the assistance of Sgt. C.J. Coughlin and Sgt. J.L. Walker, detectives with the Montgomery Police Department, to investigate the name andaddress on the pawn ticket. The pawn ticket had been signed by M.T. and listed a Plum Street address in Montgomery.1
Officer Owenby testified that when the officers arrived at the Plum Street address, he went to the back of the house and approached an open window. Wallace was standing at the open window and Officer Owenby asked him to answer the door. The house was occupied by Wallace, M.T., and M.T.'s six-year old daughter, E.T. M.T. told police that the stolen property was no longer in the house, and she gave oral and written consent for the officers to search the residence.
Sgt. Coughlin testified that he found a box in a closet in a bedroom that M.T. said was occupied by her and Wallace. The box, he said, had smoke emanating from it. Inside the box was a duffel bag, and inside the duffel bag was a plastic drink bottle with fluid and metal strips in it. The substance, he said, was bubbling, and he believed that it was hazardous. At that time, Sgt. Coughlin testified, he followed protocol, cleared the house, and called the narcotics division. Sgt. Coughlin further testified that there was athick white smoke throughout the house that had a chemical smell and that the child, E.T., was walking around the house.
Detective W.T. Grant of the Montgomery Police Department testified that Wallace made a statement to him in regard to what had happened at Plum Street. Wallace told him that he had lived at that residence for five years; Detective Grant said that Wallace first referred to M.T. as his wife and that Wallace later called M.T. his girlfriend. Wallace told Detective Grant that he, M.T., and E.T., lived in the house.
Detect...
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