562 So. 2d 292 | Ala. Crim. App. | 1990
Ted Julian Barron was convicted of trafficking in cannabis, sentenced as a habitual offender to life imprisonment, and fined $25,000. On this appeal of that conviction, he claims that the State did not present a prima facie case of his guilt of the charged offense, and that the trial court erred by failing to instruct the jury on the lesser offense of possession of marijuana not for personal use.
The defendant claims that the State failed to prove (a) that the property on which the growing marihuana was found belonged to him, (b) that he knew he was in actual or constructive possession of more than 2.2 pounds of marihuana, or (c) that the weight of the marihuana excluded stems and stalks.
Although the defendant argues on appeal the State's failure to prove that he owned the property in question, this matter was not disputed at trial. State's witness Denny Merritt testified, without objection, that he knew where defendant lived, that defendant's property "adjoin[ed] the railroad tracks right-of-way" and that on that property he saw marihuana growing. Detective Wade Garrett, of the Andalusia Department of Public Safety, testified, also without objection, that defendant had been *293 living in the same residence "since the mid 70's." Undoubtedly, defendant failed to challenge at trial the basis of these officers' knowledge of his property ownership because they would have testified (as Investigator Merritt did in his affidavit for the search warrant) that their knowledge was based on defendant's prior conviction "for growing marihuana in this same location." Having failed to object to the State's proof at trial, he cannot now be heard to complain of its insufficiency. "When a party's claim of ownership is not disputed by an adverse claimant, . . . oral testimony that the party owns the land is admissible without production, or a showing of an excuse for nonproduction, of . . . documents of title. . . ." C. Gamble, McElroy's Alabama Evidence § 226.02 at 483 (3d ed. 1977).
Moreover, "[a]n inference of constructive possession arises when the controlled substance is found on premises owned orcontrolled by the accused," Donahoo v. State,
"[Defendant] said will you tell me, if I can guess, who told ya'll about my marijuana plants, will you tell me who it was? And I told him then that I couldn't do that. He said, well then I know who the bastard was that told you about my marijuana plants. And then he called a couple of names at that time."
In view of the foregoing admissions by the defendant, "[k]nowledge of the presence and the quantity of the controlled substance may properly be inferred from the possession of the substance by the accused." Calhoun v. State,
Finally there is no basis for defendant's argument that the total weight of the marihuana tested here encompassed statutorily excluded portions of the marihuana plant. Criminalist Joe Saloom testified that there were "small stems, but no stalks" in the plant material he weighed. Section
Id. at 1002."It is well established that the burden is upon the appellant to establish and bring himself within any exclusion which is found not in the enacting clause defining a crime but rather in a subsequent clause or statute. Specifically, he must establish that the marihuana seized from his residence contained excludable matter *294 falling within the definition of such under §
20-2-2 (15)."
Here the defendant did not meet his burden of establishing that the "small stems" included in the total weight of the marihuana were within any exclusion found in §
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.