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10/21/94 CECIL HERMAN CARTER v. STATE

October 21, 1994

CECIL HERMAN CARTER
v.
STATE



Appeal from Escambia Circuit Court. CC-92-461 and CC-93-257. Joseph Brogden, TRIAL JUDGE.

Rule 39(k) Motion Denied December 29, 1994. Rehearing Denied December 29, 1994. Certiorari Denied March 10, 1995. Released for Publication June 30, 1995.

Bowen

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

Cecil Herman Carter, the appellant, was convicted of two counts of the unlawful distribution of marijuana in violation of Ala. Code 1975, § 13A-12-211(a), one count of possession of marijuana in violation of § 13A-12-213(a)(1), and one count of possession of marijuana for personal use in violation of § 13A-12-213(a)(2). He raises four issues on this direct appeal from those convictions.

I.

The appellant contends that the State failed to prove the chain of custody for the marijuana received into evidence on each charge. He argues that "the State has failed to identify for the record the State's exhibits by exhibit number as constituting drugs allegedly seized from [the appellant]." Appellant's brief at 30.

We have examined the record and find no missing links in the several chains of custody involved in this case. See Ex parte Holton, 590 So. 2d 918, 919-20 (Ala. 1991). The record demonstrates that each link in the chain of custody of each exhibit of marijuana was properly identified and that each exhibit admitted into evidence was identified by an exhibit number. Furthermore, there was no testimony presented that "put the identity and sameness of the item in question." See Slaughter v. State, 411 So. 2d 819, 822 (Ala.Cr.App. 1981).

The fact that the prosecutor did not, at the time the exhibit was offered into evidence, specifically identify the exhibit being offered as the marijuana seized from a particular place or the marijuana identified by the witness as having been in his possession on a certain occasion is not significant. That information can be gathered by reading the prosecutor's offers within the context of the entire record.

II.

The appellant contends, and we agree, that the State did not prove that he was in constructive possession of the 0.12 ounces of marijuana found inside the glove compartment of the Ford Courier pickup truck. That marijuana was the subject of the charge of unlawful possession of marijuana for personal use after having been previously convicted of unlawful possession of marijuana. C.R. 28. Because the appellant made a motion for a judgment of acquittal at the close of the State's evidence, we can consider only the evidence that was before the trial court at that time in determining the sufficiency of the evidence. "The action of the trial court in denying a motion for [a judgment of] acquittal . . . must be reviewed by determining whether . . . , [at the time the motion was made,] there existed legal evidence before the jury . . . from which the jury by fair inference could find the defendant guilty." Willis v. State, 447 So. 2d 199, 201 (Ala.Cr.App. 1983). "Where the sufficiency of the evidence is tested by a motion for a judgment of acquittal, we may examine only that evidence which was before the court at the time the motion was made." Kimbrough v. State, 544 So. 2d 177, 181 (Ala.Cr.App. 1989).

Here, the State failed to connect the appellant to the Ford truck. The only connection between the appellant and the truck was the fact that the truck was parked at the appellant's residence at the time the search warrant was executed. The State failed to prove who owned *fn1 or who drove this truck. There was no evidence that the appellant had ever driven the Ford truck, although there was testimony that "others" had. The appellant was seen driving only an Isuzu Trooper.

More significant are the facts that three males were residing at the same residence -- the appellant; the appellant's 19-year-old son, Buckey Carter; and David Morris. There was no evidence offered to prove who owned the residence or the Ford truck.

In addition, at the time the search warrant was executed, there were five people inside the residence and between four and eight vehicles parked in the yard. The appellant arrived while the warrant was being executed. In summary, the only evidence connecting the appellant to the Ford truck was the fact that the truck was located ...


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