Crear v. StateCrear v. State
I
The appellant was originally charged with the felony of possession of marijuana after a prior cоnviction of possession. At the preliminary hearing, the district court found the existence of probable cause. The grand jury then returned an indictment for felony possession.
At trial, the circuit court granted the appellant‘s motion for a directed verdict on the felоny charge and instructed the jury only on the offense of misdemeanor possession. The appellant argues that the district court should have dismissed the felony charge because there was no evidence of a prior conviction, and that, by the district court‘s failure to do so, he was placed in double jeopardy.
This argument is obviously without merit because the appellant was only placed in jeopardy one time — in the circuit court. The grand jury could have indicted the appellant even if the district court made a finding оf no probable cause and dismissed all charges. See Willis v. State, 480 So.2d 56 (Ala.Cr.App. 1985);
II
The appellant contends that the circuit court was without jurisdiction. The argument is: The appellant was initially charged with felony possession,
This argument conveniently (and as a matter of necessity) overlooks the fact that appellant was indicted for a felony. See Coral v. State, 551 So.2d 1181, 1182 (Ala.Cr.App. 1989) (circuit court acquires jurisdiction over person of the defеndant by indictment); Ross v. State, 529 So.2d 1074, 1078 (Ala.Cr.App. 1988) (“[T]he [subject-matter] jurisdiction of the court, in felony cases, rests upon the utilization of a grand jury indictment or information.“).
Furthermore, there is no record of the evidence presented at the district court preliminary hearing. The record does show that the аppellant had previously been charged with possession in municipal court and that he was placed on “good behavior” after a trial. However, that one record which the state introduced does not show a conviction. Failure to prove a рrior conviction is not the same thing as no prior conviction. The trial court granted the motion for a directed verdict of acquittal on felony possession when the State failed to prove a prior conviction. The appellant‘s argument is without merit.
III
The evidence does support the appellant‘s conviction for the possession of marijuana for personal use.
The marijuana was contained in a plastic bag located on the far left side of the dash on the driver‘s side of the automobile. The bag wаs partially covered with a napkin. The officers initially approached the parked car because one of them recognized the appellant as a “wanted” fugitive. The car belonged to the appellant. A female was
Mere presence in an automobile containing contraband is insufficient to support a conviction for possession. Ex parte Story, 435 So.2d 1365, 1366 (Ala. 1983). Here, however, the fact that appellant was the owner and driver of the vehicle supported an inference of constructive possession. See Ward v. State, 484 So.2d 536, 537-38 (Ala.Cr.App. 1985). Furthermore, his close proximity to the marijuanа, coupled with his attempt to elude arrest, provides sufficient circumstantial evidence to support his conviction for possession. See Finch v. State, 553 So.2d 685, 688 (Ala.Cr.App. 1989). Compare Chatman v. State, 555 So.2d 305 (Ala.Cr.App. 1989) (evidence insufficient to establish passenger‘s constructive possession of marijuana when he did not own the vehiclе or display any suspicious or incriminating conduct, and driver claimed the contraband).
IV
The indictments for third degree assault charged that the appellant caused “physical injury.” Physical injury is “[i]mpairment of physical condition or substantial pain.”
Officer Barber, one of thе arresting officers, testified that the appellant “slapped” him in the chest with the handcuffs and struck him “several times.” Barber testified that he was in the hospital for “just bruise[s] and abrasions . . . mainly abrasions from the roadway parking lot, also bruises.”
Officer Baker, the other officer, testified that he also went to the hospital, where the record reveals he had his “knee x-rayed. [He] had a bruised kneecap, and it turned out not to be as serious as first thought. [He] also had a knot on [his] head on the right side, upper part of [his] head.” The evidence shows thаt when the officers attempted to handcuff the appellant, the appellant jerked away and then used the handcuffs as a weapon against the officers, “flailing” at them. Both officers were struck. Apparently, the attempted arrest turned into a brawl. There was testimony that the appellant “[was] no longer trying to flee. It turned into a fight is what it turned into. He wasn‘t even trying to escape anymore.”
There was sufficient evidence from which the jury could reasonably conclude that both officers suffered “impairment of physical condition” and “substantial pain,” that is, that the appellant caused them “physical injury.” See Brock v. State, 555 So.2d 285, 289 (Ala.Cr.App. 1989) (evidence sufficient to conclude that police officer sustained “physical injury” under
V
The appellant contends that the trial court erred by refusing to instruct the jury that resisting arrest is a lesser included offense of assault in the third degree. We agree based on the particular facts of this case.
The appellant‘s indictments for third degree assault tracked the language of
Under
Under
” ‘(1) [Resisting arrest] is established by proof of the same or fewer than all
the facts required to establish the commission of [assault as charged]; or
” ‘. . . .
” ‘(4) [Resisting arrеst] differs from [assault as 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 commission.’ ”
Ex parte Jordan, 486 So.2d 485, 488 (Ala. 1986).
Both parts of the test are satisfied here. Resisting arrest is established, under thе facts of this case, by fewer than all the facts required to establish subsection (a)(4) assault, and it differs, under the facts of this case, from subsection (a)(4) assault only in that it contemplates a lesser injury or risk of injury to the peace officer.
The fact that the resisting arrest stаtute proscribes interference with a peace officer who is “effecting a lawful arrest,” while the assault statute proscribes interference with a peace officer who is “performing a lawful duty” (which duties include, in the abstract, duties other than arrest), is unimportant here. In making a lesser included offense determination, we do not consider “the potential relationship of . . . statutes only in abstract terms.” Ex parte Jordan, 486 So.2d at 488. We consider their relationship in light of the facts of the particular case and the indictments under which the accused wаs charged. Id.
The State argued at trial and maintains on appeal that resisting arrest is not a lesser included offense of subsection (a)(4) assault because the appellant engaged in “two different acts,” one for the purpose of escaping and the оther for the purpose of “hurting the officers.” The problem with this argument is that the offenses charged in the indictments were assaults “with intent to prevent [the officers] from performing a lawful duty,” and not other assault offenses. Compare
While there was sufficient evidence of “physical injury” to the officers here to present a jury question on assault, there was also “a rational basis for a verdict convicting the [appellant] of [resisting arrest]” without “physical injury.” See
Therefore, under the facts of this case and in view of the offenses for which appellant was indicted, the trial court erred by refusing to charge the jury on resisting arrest as a lesser offense of the charged assault.
VI
The appellant does not challenge the propriety of his two assault convictions arising out of the same transaction. Even if his “flailing” at the officers was deemed a single criminal act, it injured two police officers, and he was properly convicted of the assault of both officers. See McKinney v. State, 511 So.2d 220 (Ala. 1987).
However, the appellant argues that he cannot, consistent with the Double Jeopardy Clause, be convicted of both resisting arrеst and assault arising out of the same incident. He claims that because the former is an included offense of the latter, the offenses are the “same” for purposes of jeopardy. We agree.
“[W]here the same act or transaction constitutes a violаtion of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (emphasis added). Each provision here does not require proof of an independent fact. Assault requires “рhysical injury“; resisting arrest does not. But
Failing the Blockburger test necessarily means that the offenses are the same for purposes of jeopardy.
“The assumption underlying [the Blockburger] rule is that [the legislature] ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the ‘same offense,’ they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.”
Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1437-38, 63 L.Ed.2d 715 (1980), quoted in Missouri v. Hunter, 459 U.S. 359, 367, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). We find no “clear indication” of intent on the part of the Alabama legislature to doubly punish resisting arrest and third degree assault when a police officer is actually injured. Therefore, appellant may not be convicted and sentenced for both resisting arrest and assault.
This holding is consistent with
“When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
“(1) One offense is included in the other, as defined in section
13A-1-9 ; or
“. . . .
“(4) The offenses differ only in that one is defined to prohibit а designated kind of conduct generally and the other to prohibit a specific instance of such conduct.”
Under the facts of this case resisting arrest is a lesser included offense of assault as defined in
The appellant‘s conviction for possession of marijuana is affirmed. The appellant‘s two convictions for assault are reversed and remanded for a new trial, at whiсh the appellant is entitled to have the jury charged that resisting arrest is a lesser offense of subsection (a)(4) assault, and that he may not be convicted of the assault charges and the resisting arrest charge.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
All Judges concur.