Webster v. State

• Decision Date: 26 March 2004
• Citation: 900 So.2d 460
• Parties: Maurice Ray WEBSTER, Mike Stewart, and Bill Greer v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

900 So.2d 460

Maurice Ray WEBSTER, Mike Stewart, and Bill Greer v. STATE of Alabama.

CR-01-1656.

Court of Criminal Appeals of Alabama.

March 26, 2004.

Rehearing Applications Denied May 21, 2004.

Certiorari Petitions Denied August 13, 2004.

William J. Baxley, Birmingham; Robert W. Hanson, Albertville; Roger M. Monroe, Montgomery; Charles H. Pullen, Huntsville; and Thomas J. Spina, Birmingham, for appellants.

Troy King and William H. Pryor, Jr., attys. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.

Certiorari Petitions Denied (as to Webster and Greer) August 13, 2004.

Alabama Supreme Court 1031357 and 1031369.

SHAW, Judge.

Maurice Ray Webster, Mike Stewart, and Bill Greer appeal their convictions under Alabama's Code of Ethics, § 36-25-1 et seq., Ala.Code 1975. We affirm in part and remand.

Webster, the owner of Webster Construction Company, was convicted of offering things of value for the purpose of influencing official action, a violation of § 36-25-7(a), Ala.Code 1975 (count three of the indictment), and, as an accomplice, of using an official position or office for personal gain, a violation of § 36-25-5(a), Ala.Code 1975 (count one of the indictment). He was sentenced to five years' imprisonment for each conviction, to run concurrently. Stewart, county commissioner for district one in Marshall County, was convicted of using his official position or office for personal gain, a violation of § 36-25-5(a), Ala.Code 1975 (count one of the indictment). He was sentenced to five years' imprisonment. Greer, county commissioner for district four in Marshall County, was convicted of using his official position or office for personal gain, a violation of § 36-25-5(a), Ala.Code 1975 (count one of the indictment), and of soliciting or receiving things of value for the purpose of influencing official action, a violation of § 36-25-7(b), Ala.Code 1975 (count two of the indictment). He was sentenced to five years' imprisonment for each conviction, to run concurrently.¹

The appellants each raise several issues on appeal, and we address each in turn.

The appellants argue that their convictions should be reversed because, they say, their convictions were based on the uncorroborated testimony of accomplice Elton Sims and, therefore, that they were each entitled to a judgment of acquittal. We disagree.

Initially, we note that "`[i]n determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.'" Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala. Crim.App.1984), aff'd, 471 So.2d 493 (Ala. 1985). "`The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.'" Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App. 1992). "`When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision.'" Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). "The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury." Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

Viewed in the light most favorable to the State, the evidence adduced at trial indicated the following. In 1991, Sims was elected to the county commission of Marshall County to represent district three.² In 1994, Stewart was elected as the county commissioner for district one. In 1995, Greer was elected county commissioner for district four. In 1997, Alabama's competitive bid law, § 39-2-1 et seq., Ala.Code 1975, was changed to allow county commissioners to award a contract without soliciting bids if the contract was less than $50,000.³

Sims, who testified pursuant to a plea agreement with the State,⁴ stated that he knew both Webster and Greer through the Marshall County Commission and that he learned of the change in the competitive bid law from Greer in 1997. After the change in the law, Sims said, Greer suggested that he use Webster Construction Company to complete some of the road projects in his district. According to Sims, Greer told him that he "could probably do a little better with Mr. Webster than ... with the other contractors" and that Greer rubbed his fingers together, which Sims understood to mean that he could receive some monetary value if he used Webster's company. (R. 122-23.) Sims stated that he began using Webster Construction Company on some of the projects in his district. According to Sims, he and Webster would set a price on the project between themselves and "then anything above the price that we set that the purchase order was made for, I would get 50 percent above that and he would keep 50 percent above that." (R. 123-24.)

Sims testified that typically, when a road project was underway in his district, he would get a "requisition" for the amount of money he needed for the project and when the work was completed, he would put the work order with the requisition and take both to the county commission's office in the courthouse in Guntersville, were Mary Susan McCormick, one of two accountants who worked for the commission, would issue a check for the project. Sims said that he would sometimes wait for the check and hand deliver it to Webster, but that sometimes McCormick would mail the check to Webster. At some later date, Sims said, Webster would pay him, per their arrangement, 50 percent of the amount in excess of the actual cost of the project. According to Sims, the average amount he would receive from Webster on any given project was approximately $5,000.

Sims further testified that at one point after he had used Webster Construction Company for some time, Greer approached him about having Webster Construction Company "do a project" and he approached Webster and Webster agreed to "do a project." (R. 128.) According to Sims, however, there was no project. Rather, it was merely a plan for him, Greer, and Webster to receive money. Sims testified that he submitted a requisition and work order and had a $3,000 check made payable to Webster,⁵ although Webster Construction Company actually did no work. According to Sims, Webster kept $1,500, he received $1,000, and he gave Greer $500. Sims testified that he remembered Greer telling him at least once or twice that he was "running short of cash" and that "it was time for him to do a project." (R. 132.)

Sims also testified that at another point after he had used Webster Construction Company for some time, although he could not say exactly when, Greer approached him and told him to start using the name Bill Runyans, who was Webster's son-in-law, instead of Webster's name "because Mr. Webster's name was showing up on the computer printout too much, and they didn't need his name to show up so much on the computer printout." (R. 129-30.) At that point, Sims said, he began using the name Runyans, but the projects were still being completed by Webster Construction Company.

Sims testified that at one point he was present when Greer told Stewart that he should use Webster Construction Company for his projects. Sims stated that at no point during that conversation did Greer tell Stewart that he could receive money for using Webster Construction Company, but that Webster had told him at some point that the arrangement he had with Sims "was the way he dealt with the county," i.e., that he would set a price and then share with the commissioner whatever profit he made over that price.⁶ (R. 134.) Sims testified that he had no knowledge of Stewart's ever receiving any money from Webster for any road projects done in Stewart's district, and that Stewart had never told him that he had received money from Webster. In addition, Sims stated that he had never witnessed Webster paying Greer any money.

According to Sims, on most of the projects that Webster Construction Company did for him bills submitted would reflect the total cost of the work on the project despite the fact that county employees, who were already being paid by the county, "had to do most it." (R. 131.) However, Sims stated that Webster Construction Company had always done a "tremendous job" on the projects done in Sims's district. (R. 147.) Sims also stated that, Webster Construction Company had equipment, specifically a track hoe, that the county did not have, and that at least some of the work Webster Construction Company had done could not have been done by the county because it lacked the necessary equipment.

To corroborate Sims's testimony, the State presented evidence that during a routine audit of the Marshall County Commission in the summer of 1998, Karen O'Bannon, a senior account examiner with the Alabama Examiners of Public Accounts, discovered an unusual pattern of payments to a particular vendor, specifically, monthly payments to Webster Construction Company in exact dollar amounts. O'Bannon testified that, during her audit, Billy Cannon, the chairman of the Marshall County Commission, approached her and told her that he had some concerns about how some commissioners in Marshall County were spending money. O'Bannon testified that, following her audit and conversations with Cannon and other people in the area, a complaint was filed with the attorney general's office.

The State also presented evidence regarding the normal procedure...