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10/21/94 S. S. S. v. STATE

October 21, 1994

S. S. S.
v.
STATE



Appeal from Morgan Circuit Court. (CC-92-262). Bennett McRae, TRIAL JUDGE.

Rehearing Denied March 3, 1995. Rule 39(k) Motion Denied March 3, 1995. Certiorari Denied May 19, 1995. Released For Publication October 31, 1995.

McMILLAN

The opinion of the court was delivered by: Mcmillan

McMILLAN, JUDGE

The appellant was charged with breaking and entering a motor vehicle, a violation of § 13A-8-11(b), Code of Alabama 1975, and with theft of property in the second degree, a violation of § 13A-8-4, Code of Alabama 1975. The trial court, after hearing ore tenus evidence, found the appellant guilty as charged in the indictment. The appellant was sentenced to 18 months' imprisonment.

I

The appellant contends that the trial court erred in admitting his statement into evidence because, he says, a prima facie case of breaking and entering a motor vehicle was not proven before the statement was admitted. In Marcus v. State, 568 So. 2d 342, 344-45 (Ala. Cr. App. 1990), this court stated:

"'The traditional rule in Alabama is that a defendant's confession may not be admitted into evidence until proof of the corpus delicti has been established by evidence independent of the confession.' Tice v. State, 386 So. 2d 1180, 1185 (Ala. Cr. App.), cert. denied, 386 So. 2d 1187 (Ala. 1980). However, the corpus delicti may be proven by circumstantial as well as by direct evidence Green v. State, 56 Ala. App. 229, 320 So. 2d 742, 747 (1975); Zeigler v. State, 52 Ala. App. 501, 294 So. 2d 468, 470 (1973), cert. quashed, 292 Ala. 762, 294 So. 2d 471 (1974). See also C. Gamble, McElroy's Alabama Evidence § 200.13 (3d ed. 1977). 'Where the circumstantial evidence presented supports a reasonable inference that a crime has been committed, a voluntary confession of the crime may be introduced into evidence.' Taylor v. State, 276 Ala. 232, 160 So. 2d 641, 645 (1964). See also Bracewell v. State, 506 So. 2d 354, 360 (Ala. Cr. App. 1986)."

When the appellant's confession was received into evidence, the following evidence had been presented: Patrick McDaniel had testified that he worked with the appellant at Performance Toyota-Mazda automobile dealership during the summer of 1991. He testified that he asked the appellant to locate a car stereo for him and that he told the appellant that he would buy it from him if he found one. He testified that he had seen a Craig brand stereo system in a Volkswagen Beetle automobile located on the used car lot and that he asked the appellant to find him one like it. McDaniel testified that the stereo system he bought from the appellant for $10 was the one that had been in the Volkswagen Beetle. McDaniel further testified that he watched the appellant remove the stereo from the vehicle.

Roger Payne, a security officer at Performance Toyota-Mazda, testified that when he was considering buying the Volkswagen, he noticed that it had a Craig brand stereo system. He testified that, when he bought the car, he noticed that the stereo was gone. Payne further testified that the appellant was not authorized by the owner of the car dealership to remove the stereo.

Because the breaking and entering of the automobile was sufficiently proven by the aforementioned circumstantial evidence, no error occurred in admitting the appellant's statement into evidence.

II

The appellant contends that the trial court erred in denying his motion for a judgment of acquittal made at the close of the State's case because, he says, the State failed to prove a prima facie case of breaking and entering a motor vehicle and theft of property in the second degree.

In Daniels v. State, 581 So. 2d 536, 540 (Ala. Cr. App. 1990), cert. denied, 581 So. 2d 541 (Ala. ...


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