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10/21/94 EDDIE WAYNE SULLIVAN v. STATE

October 21, 1994

EDDIE WAYNE SULLIVAN
v.
STATE



Appeal from Covington Circuit Court. (CC-92-365). Jerry Stokes, TRIAL JUDGE.

Rehearing Denied December 2, 1994. Released for Publication April 1, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Eddie Wayne Sullivan, was convicted of unlawfully possessing marijuana, in violation of § 13A-12-213, Code of Alabama 1975. He was sentenced to 6 years' imprisonment.

The state's evidence tended to show that on October 15, 1992, Deputy Leo Bedsole executed a search warrant at 510 North 7th Street in Florala. Bedsole had obtained the search warrant based on information from two confidential informants that there were drugs at this residence. When he and several other officers arrived to execute the warrant they found the appellant's wife across the street at a neighbor's house. Bedsole told her that they had a search warrant and that they believed marijuana was located on the premises. When they entered the house, the appellant's wife became nervous and told officers that there was a bag of marijuana under the carpet in the bedroom. A bag of marijuana was then recovered from under the carpet in the master bedroom. The bag also contained rolling papers and 2 partially smoked marijuana cigarettes. Also discovered in a ceramic vase in the master bedroom were two partially smoked marijuana cigarettes. Three plastic sandwich bags containing marijuana were discovered in a bread box on top of the refrigerator.

Deputy Bedsole testified based on his own personal knowledge that the appellant had been living at the residence for at least three months with his wife and two children under four years of age. Bedsole also stated that men's clothes were found in the master bedroom where the marijuana was discovered. On cross-examination Deputy Bedsole also testified that on a previous occasion a controlled buy had been made out of this house. Also, this residence had been under surveillance for approximately one and one-half months before the execution of the warrant.

I

The appellant initially contends that the court erred in denying his motion for a judgment of acquittal. Specifically, he contends that the state failed to show that he had knowledge of the presence of the marijuana at the residence and, therefore, failed to prove constructive possession.

"In order to prove possession of drugs, either actual or constructive, the state must show actual or potential control, intention to exercise dominion, and external manifestations of intent and control. Korrect v. State, 507 So.2d 558 (Ala. Cr. App. 1986). Because the appellant was not in actual possession of the marijuana when it was seized, the state was required to establish constructive possession. When relying on constructive possession, the state must show the defendant had knowledge of the presence of the drugs at the place from which they were seized. Bacot v. State, 597 So.2d 754 (Ala. Cr. App. 1992). Such knowledge may be shown by circumstantial evidence. Dooley v. State, 575 So.2d 1191 (Ala. Cr. App. 1990)."

Poole v. State, [Ms. CR-93-240, April 15, 1994] ___ So.2d ___, ___ (Ala. Cr. App. 1994). See also Menefee v. State, 592 So.2d 642 (Ala. Cr. App. 1991); Desimer v. State, 535 So.2d 238 (Ala. Cr. App. 1988).

In the following cases this court has held that there was sufficient evidence to present the case to the jury on the issue of whether the accused had knowledge of the presence of a controlled substance: Menefee, (supra) (evidence sufficient to present question of knowledge to jury where nine people were present in house and female accused was on bed in bedroom where marijuana was found in a purse hanging on the doorknob and in a dresser drawer); Wesenberg v. State, 504 So.2d 328 (Ala. Cr. App. 1986) (evidence sufficient to present the question of knowledge to jury where accused admitted living in house and was found in room where drugs were discovered in dresser drawer); Sturdivant v. State, 439 So.2d 184 (Ala. Cr. App. 1983), overruled on other grounds, Ex parte Chambers, 522 So.2d 313 (1987) (evidence sufficient to present question of knowledge of female defendant to jury, where marijuana was found in bedroom in which the female defendant was present and there were women's clothing in the closet); McHellen v. State, 351 So.2d 689 (Ala. Cr. App. 1977) (evidence held sufficient to present case to jury on issue of knowledge when accused was home at time of search, controlled substance was found in "neutral" area of house, and place where substance was discovered was "not easily unnoticed").

"'Where drugs are found on premises of which the defendant was in nonexclusive possession, the fact that they were found among or near his personal belongings may be a circumstance which is sufficient to link him with the possession ...


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