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09/09/94 WILLIE FRANK HILL v. STATE

September 9, 1994

WILLIE FRANK HILL
v.
STATE



Appeal from Montgomery Circuit Court. (CC-92-2153). Joseph Phelps, TRIAL JUDGE.

Rehearing Denied October 21, 1994. Certiorari Denied December 16, 1994. Released for Publication March 25, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Willie Frank Hill, a City of Montgomery police officer, was convicted of using his position for direct personal financial gain in violation of § 36-25-5, Code of Alabama 1975, part of the Alabama Ethics Act. He was sentenced to three years' imprisonment; that sentence was split and he was ordered to serve one year on probation followed by one year in the penitentiary.

The state's evidence tended to show that on September 18, 1992, Officer Hill was patrolling the Mobile Highway in west Montgomery with his partner, Officer C. K. Davis. William Guilford pulled his car out into traffic in front of the officers' patrol car. Officer Hill turned the patrol car around and got behind Guilford's car. When Officer Davis turned on the patrol car's blue lights, he saw Guilford throw something from his car window. The officers stopped to see what Guilford had thrown from his window and recovered a plastic bag that contained a small amount of a green leafy substance.

The officers stopped Guilford in the center turn lane of the road. Guilford told the officers that his identification was in his wallet in his glove compartment, which was locked. Guilford then denied throwing the plastic bag from his car window. Officer Davis smelled alcohol on Guilford's breath and took him across the road to a parking lot to perform a field sobriety test.

While Officer Davis and Guilford were in the parking lot, Officer Hill stayed with Guilford's car. Guilford testified that when he and Officer Davis were walking back to the car, Officer Hill said that he was going to check Guilford's identification in his wallet. Officer Hill leaned into Guilford's car where it appeared that he unlocked the glove compartment and looked in Guilford's wallet. Officer Hill then told Guilford that they had another police call on the radio, and the officers got in their patrol car, drove away, and never returned.

Guilford, thinking that it was strange that the officers did not give him a ticket or arrest him, checked his wallet, which had been in the glove compartment. He had had exactly $1,000 in "folded money" in his wallet, which he had planned to use to purchase his employer's truck the next day and approximately $140 in "spending money" that was not folded. When he checked his wallet, he discovered that the money in his wallet was not arranged the way it was before the police officers stopped him and that some of it was missing.

Guilford went to a pay telephone and called the emergency number, 911, to report the theft of his money by the police officer. He was told that he needed to come to the police station to make a report. At that time, Officers Hill and Davis, who were en route to a disturbance, were directed to return to the police station. Officer Hill commented to Officer Davis that they were probably being called in because Guilford had lodged a complaint against them.

Guilford arrived at the police station at the same time Officers Hill and Davis arrived. Guilford told the officers investigating his complaint that two $50 bills and nine $20 bills had been taken from his wallet. When the investigating officers asked Officer Hill to empty his pockets, he removed two $50 bills, ten $20 bills, one $10 bill, and four $1 bills from his shirt pocket. He also had three $20 bills in his wallet.

When asked, Officer Hill said he could not remember where he got the money that was in his pocket.

Based on this incident, Officer Hill was charged with theft in the second degree and with using his position for direct personal financial gain in violation of the Ethics Act. He was acquitted of the theft charge and was found guilty of violating the Ethics Act.

I

The appellant contends that the jury's verdict finding him guilty of violating the Ethics Act was "based on conjecture, speculation, and supposition rather than on evidence and proven facts." While it is true that the evidence against the appellant was circumstantial, that does not mean that it was deficient.

"Circumstantial evidence is not inferior or deficient evidence. See Linzy v. State, 455 So.2d 260 (Ala. Cr. App. 1974). 'Circumstantial evidence is entitled to the same weight as direct evidence, provided it points to the guilt of the accused.' Casey v. State, 401 So.2d 330, 331 (Ala. Cr. App. 1981). 'Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant's guilt is a question for the jury and not the court.' Cumbo v. State, 368 So.2d 871, 875 (Ala. Cr. App.), cert. denied, 368 So.2d 877 (Ala. 1979). "

Holder v. State, 584 So.2d 872, 875-76 (Ala. Cr. App. 1991).

When reviewing the sufficiency of the evidence to support a jury's verdict, we must view the evidence in a light most favorable to the state. Underwood v. State, [Ms. CR-92-806, December 30, 1993] ___ So.2d ___ (Ala. Cr. App. 1993).

The state presented evidence that Officer Hill used his position as a law enforcement officer to gain access to Guilford's wallet. The state presented evidence that after Officer Hill had access to Guilford's wallet, money in particular denominations was missing from the wallet. Immediately thereafter, Officer Hill had in his possession ...


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