from Houston Circuit Court (CC-18-888; CC-18-889).
WINDOM, Presiding Judge.
Lashay Cunningham appeals her convictions for unlawful
possession of a controlled substance, a violation of §
13A-12-212, Ala. Code 1975, and second-degree possession of
marijuana, a violation of § 13A-12-214, Ala. Code
1975. The Houston Circuit Court sentenced
Cunningham to 48 months in prison for her
possession-of-a-controlled-substance conviction and to 12
months in jail for her possession-of-marijuana conviction,
and ordered that the sentences were to be served
concurrently. Cunningham filed a motion for new trial, which
December 8, 2016, Sergeant Robert Cole with the Dothan Police
Department, along with another officer, conducted a traffic
stop after the driver failed to use the proper turn signal
and made an improper lane change. Sgt. Cole approached the
driver's side of the vehicle while the other officer
approached the passenger side. Cunningham, the driver, rolled
down her window. Sgt. Cole informed Cunningham why he stopped
her and asked for her driver's license. Cunningham told
Sgt. Cole that her driver's license had been suspended.
Sgt. Cole asked Cunningham to step outside the vehicle, and
she complied. Meanwhile, the other officer made contact with
the passenger, Eugene Neal. When the officer determined that
there was a warrant for Neal's arrest, he informed Neal
that he would be taken into custody. Cunningham then became
aggressive and angry. She "darted" from behind the
vehicle and went to the driver's side door, which she
opened. Cunningham had her upper body inside the vehicle.
Concerned for his safety, Sgt. Cole pulled her out of the
vehicle. Cunningham had her purse in her hands. Because of
safety concerns and Cunningham's behavior, Sgt. Cole
placed Cunningham in handcuffs until the traffic stop could
be completed. While Cunningham was being handcuffed, her
purse fell to the ground and various items fell out. Sgt.
Cole picked up the items to put them back inside the purse.
As he did so, he smelled marijuana. Sgt. Cole searched the
purse and found a pill bottle in one of the side pockets
along with a clear bag in the main portion of the purse. Both
the bottle and the bag contained marijuana. Sgt. Cole also
found a white box that contained several bags of
methamphetamine and a glass pipe. A digital scale was found
during a subsequent search of the vehicle.
appeal, Cunningham argues that the circuit court erred: 1) by
considering the offense of possession of a controlled
substance to be a lesser-included offense of distribution and
submitting that charge to the jury for consideration; 2) by
denying her motion for mistrial after a witness stated that
Cunningham had prior drug offenses; 3) by denying her motion
for a judgment of acquittal; 4) by denying her motion to
suppress the evidence seized from her purse; and 5) by
denying her Batson motion.
argues that the circuit court erred when, after granting her
motion for a judgment of acquittal to the charge of
distributing a controlled substance, it submitted the charge
of unlawful possession of a controlled substance as a
lesser-included charge to the jury.
Court has never directly decided the question of whether
simple possession of a controlled substance is a
lesser-included offense of distribution of a controlled
substance. However, in Harris v. State, 274
So. 3d 304 (Ala.Crim.App.2018), this Court held that
possession of a controlled substance was a lesser-included
offense of an attempt to commit distribution. Because Harris
had been convicted of attempting to commit distribution of a
controlled substance and of marijuana, double-jeopardy
precluded his convictions for possession of a controlled
substance and possession of marijuana.
13A-1-9(a), Ala. Code 1975, provides:
"'(a) A defendant may be convicted of an offense
included in an offense charged. An offense is an included one
"'(1) It is established by proof of the same or
fewer than all the facts required to establish the commission
of the offense charged; or
"'(2) It consists of an attempt or solicitation to
commit the offense charged or to commit a lesser included
"'(3) It is specifically designated by statute as a
lesser degree of the offense charged; or
"'(4) It differs from the offense charged only in
the respect that a less serious injury or risk of injury to
the same person, property or public interests, or a lesser
kind of culpability suffices to establish its
Williams v. State, 104 So. 3d 254');">104 So. 3d 254
(Ala.Crim.App.2012), this Court explained that,
"'"'"to be a lesser included offense
of one c ha rg ed in an indictment, the lesser offense must
be one that is necessarily included, in all of its essential
elements, in the greater offense charged[,]" Payne
v. State, 391 So.2d 140, 143 (Ala. Cr. App.), writ
denied, 391 So.2d 146 (Ala. 1980), ... unless it is so
declared by statute.'
"'"James v. State, 549 So.2d 562, 564
(Ala. Cr. App. 1989). 'Whether a crime constitutes a
lesser-included offense is to be determined on a case-by-case
basis.' Aucoin v. State, 548 So.2d 1053, 1057
(Ala. Cr. App. 1989). 'In determining whether one offense
is a lesser included offense of the charged offense, the
potential relationship of the two offenses must be considered
not only in the abstract terms of the defining statutes but
must also ... in light of the particular facts of each
case.' Ingram v. State, 570 So.2d 835, 837 (Ala.
Cr. App. 1990) (citing Ex parte Jordan, 486 So.2d
485, 488 (Ala. 1986); emphasis in original). See also
Farmer v. State, 565 So.2d 1238 (Ala. Cr. App.
"'[Ford v. State,] 612 So.2d [1317,] 1318
[(Ala.Crim.App.1992)]. The "particular facts" of
each case are those facts alleged in the indictment. Thus,
"the statutory elements of the offenses and facts
alleged in an indictment--not the evidence presented at trial
or the factual basis provided at the guilty-plea
colloquy--are the factors that determine whether one offense
is included in another." Johnson v. State, 922
So.2d 137, 143 (Ala.Crim.App.2005).'
"Williams, 104 So. 3d at 264."
Harris v. State, 274 So. 3d at 308.
13A-12-211, Ala. Code 1975, provides that "[a] person
commits the crime of unlawful distribution of controlled
substances if, except as otherwise authorized, he or she
sells, furnishes, gives away, delivers, or distributes a
controlled substance enumerated in Schedules I through
V." Section 13A-12-212(a)(1), Ala. Code 1975, provides
that "[a] person commits the crime on unlawful
possession of a controlled substance if[,] ...[e]xcept as
otherwise authorized, he or she possesses a controlled
substance enumerated in Schedules I through V."
"Based on the statutory elements of the offenses and
facts as alleged in the indictments, possession of
[methamphetamine] ... [is a] lesser-included offens[e] of
[distribution of methamphetamine]. Specifically, the
commission of the [distribution offense] as alleged in the
indictment necessarily included all the elements of the
possession offens[e] as alleged in the indictment."
Harris, 274 So. 3d at 308.
Court recognizes, as have other courts, that there may be
circumstances in which a substance may be distributed without
the defendant's having any actual or constructive
possession. However, in this case, Cunningham did have
possession of the controlled substance; therefore, under
these circumstances, the circuit court properly found
possession to be a lesser-included offense of distribution.
Thus, the circuit court did not err in instructing the jury
on the offense of unlawful possession of a controlled
contends that the circuit court erred by failing to declare a
mistrial after a witness testified that ...