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09/30/94 D.K.F. v. STATE

September 30, 1994

D.K.F.
v.
STATE



Appeal from Jefferson Juvenile Court. (JU-93-53437). Sandra Ross, TRIAL JUDGE.

Released for Publication February 10, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, D.K.F., *fn1 a minor, was adjudicated delinquent on the underlying offense of carrying a pistol in a vehicle without a license in violation of § 13A-11-73, Code of Alabama 1975. The appellant was committed to the Department of Youth Services and was placed on probation.

Officer Kenneth Parham of the Birmingham Police Department was the only witness presented at the appellant's delinquency hearing. The state's evidence tended to show that on November 25, 1993, at 2:45 a.m., Officer Parham stopped the appellant's vehicle because one of his headlights was not functioning. When Officer Parham asked the appellant for his driver's license, the appellant said that he did not have a driver's license. Officer Parham then asked the appellant to step out of the car. At that point, Parham noticed a pistol on the driver's side floorboard of the vehicle. Officer Parham asked the appellant to sit in his patrol car. He then went back to the vehicle and seized the pistol along with some loose ammunition that was lying in the ashtray and that was visible to him.

I

The appellant's contention on appeal is that the evidence was insufficient to support a finding of delinquency. Specifically, he contends that the state failed to prove an element of its case.

The appellant contends, and the state concedes, that the appellant's adjudication of delinquency should be reversed on the authority of Sellers v. State, 507 So.2d 540 (Ala. Cr. App. 1985), rev'd on other grounds, 507 So.2d 544 (Ala. 1986), on remand, 507 So.2d 545 (Ala. 1987). In that case this court found:

"Appellant also contends that there was insufficient evidence to convict him on the charge of possession of a concealed weapon without a license under § 13A-11-73, Code of Alabama 1975.

"Section 13A-11-73 provides as follows:

"'No person shall carry a pistol in any vehicle or concealed on or about his person, except on his land, in his own abode or fixed place of business, without a license therefor as hereinafter provided.'

"Appellant contends that in order to prove that he violated this statute, the state had to establish that he (1) carried a pistol, (2) in his vehicle, (3) without a license. He admits that the state proved the first two elements but contends that they then failed to establish that he had no license.

"In Bagony v. City of Birmingham, 371 So.2d 80 (Ala. Cr. App. 1979), this court held that the evidence was sufficient to support a conviction for possession of a concealed weapon without a license because the 'State proved (1) that the defendant's address was in Birmingham, Alabama, (2) that he did not have a license to carry a pistol issued by the Sheriff of Jefferson County, and (3) that he was carrying a pistol (4) concealed on his person.' This court went on to note that the Sheriff of Jefferson County was the only designated official who could issue a license to the defendant and that proof that he did not issue a license to the defendant was sufficient, without proof from all other counties of non-issuance, to support the conviction. Therefore, testimony that the ...


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