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02/10/95 BILLY EUGENE JONES v. STATE

February 10, 1995

BILLY EUGENE JONES
v.
STATE



Appeal from Covington Circuit Court. (CC-94-81). Jerry Stokes, Trial Judge.

Rehearing Denied April 14, 1995. Certiorari Denied June 30, 1995. Released For Publication December 14, 1995.

Taylor, Presiding Judge

The opinion of the court was delivered by: Taylor

TAYLOR, PRESIDING JUDGE

The appellant, Billy Eugene Jones, was convicted of unlawful possession of marijuana in the first degree, a violation of § 13A-12-213, Code of Alabama 1975, driving under the influence of alcohol, a violation of § 32-5A-191, Code of Alabama 1975, and driving on the wrong side of the road, a violation of § 32-5A-80, Code of Alabama 1975. He was sentenced to 10 years in the penitentiary pursuant to the Habitual Felony Offender Act for unlawful possession of marijuana and to six months in jail for driving under the influence of alcohol (that sentence to run concurrently with the sentence for unlawful possession), and he was fined $100 for driving on the wrong side of the road.

The state's evidence tended to show that on November 4, 1993, Deputy Mark Anderson and Reserve Deputy Laron Brown of the Covington County Sheriff's Department received a call to proceed to the Babbie Quick Stop convenience store in Babbie. Anderson testified that he was given a description of a dark-colored Jeepor Bronco-type vehicle and a license plate number. As Anderson was turning off County Road 77 onto County Road 42, he saw a black International Scout vehicle and the license plate number matched the number he had been given. Anderson testified that as he approached the vehicle from behind, it crossed the yellow centerline into the left lane and then returned to the right lane. Anderson said that he then turned on the blue lights on his patrol car to try to get the appellant to stop the vehicle. The appellant drove for several hundred more yards and then pulled off the road into a ditch, and continued to drive approximately 40 yards before he stopped. Deputy Lamar Fowler arrived on the scene to provide back-up for Anderson and Brown. Anderson testified that he walked up to the driver's side of the appellant's vehicle and asked the appellant for his driver's license. The appellant could not produce a license, but he told Anderson that his name was Billy Jones. Anderson said that he asked the appellant to step out of the vehicle. Anderson testified that when the car door opened, he smelled a strong odor of alcohol and burned marijuana. Also, Anderson testified that the appellant's eyes were red, that his speech was slurred, and that he appeared unsteady. The appellant was unable to successfully complete any field sobriety tests. Anderson then arrested the appellant for driving under the influence. Anderson and Brown searched the appellant and found a pack of rolling papers in his left shirt pocket. Deputy Fowler searched the appellant's vehicle and found a plastic bag containing marijuana under the driver's side floormat, two six packs of beer, and two hemostats, clamplike instruments, above the visor.

The appellant was taken to the Covington County jail, where Deputy Fowler performed an Intoxilyzer 5000 test to measure his blood alcohol content. The test indicated that the appellant's blood alcohol level was .195 percent.

The appellant raises three issues on appeal.

I

The appellant first contends that the trial court erred in denying his motion for a judgment of acquittal as to all five counts of the indictment. However, we need not address Count II, unlawful possession of drug paraphernalia ( § 13A-12-260, Code of Alabama 1975), nor Count V, driving with a revoked license ( § 32-6-19, Code of Alabama 1975), because the appellant was found not guilty as to Count II, and his motion for a judgment of acquittal was granted as to Count V. An appeal lies only from a conviction. Gwin v. State, 425 So. 2d 500 (Ala. Cr. App. 1982), writ quashed, 425 So. 2d 510 (Ala. 1983).

With regard to Count I, unlawful possession of marijuana conviction, the appellant contends that the state did not present sufficient evidence that he "knowingly" possessed the marijuana.

"In determining whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, we must accept as true the evidence introduced by the state, accord the state all legitimate inferences therefrom, and view the evidence in the light most favorable to the prosecution. McMillian v. State, 594 So. 2d 1253 (Ala. Cr. App. 1991); Faircloth v. State, 471 So. 2d 485 (Ala. Cr. App. 1984), aff'd, 471 So. 2d 493 (Ala. 1985); Cumbo v. State, 368 So. 2d 871 (Ala. Cr. App. 1978), cert. denied, 368 So. 2d 877 (Ala. 1979)."

Underwood v. State, [Ms. CR-92-806, December 30, 1993] ___ So. 2d ___, ___ (Ala. Cr. App. 1993).

"In order to find a defendant guilty of possession of a controlled substance, the state must establish that the accused was either in actual or constructive possession of the substance and that he knew of the presence of the substance. Jones v. State, 432 So. 2d 5 (Ala. Cr. App. 1983). 'Constructive possession can be shown where the controlled substance was found on the premises controlled by the defendant, and guilty knowledge may by established by the surrounding facts and circumstances.' Whitehead v. State, 429 So. 2d 641, 643 (Ala. Cr. App. 1982). .... "The driver of an automobile is generally considered to be in control of it. An inference of constructive possession, therefore, exists. .... The requisite guilty knowledge of the illegal drug may be proved by circumstantial evidence. Blaine v. State, 366 So. 2d 353 (Ala. Cr. App. 1978). .... 'When the presence of the accused at the scene is established and evidence of ...


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