Gamble v. StateGamble v. State
Jеrome O. Gamble was convicted of the unlawful sale of a controlled substance in violation of
I.
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. The only ground Gamble offered in support of his motion was that “the State has not shown any distribution, sale, or give away of any controlled substance by the defendant.” R. 42. Although the State alleged otherwise, this allegation preserved the sufficiency of the evidence issue for appellate review because it was in essence an objection to the State‘s failure to prove а prima facie case.
To prove a prima facie case in a criminal prosecution, the State must “fulfill its duty of proving the elements of the offense so that the jury may be allowed to consider its case.” Eldridge v. State, 415 So.2d 1190, 1194 (Ala.Cr.App. 1982). The only element required to prove the offense of unlawful distribution оf a controlled substance is proof that the defendant either authorized, sold, furnished, gave away, manufactured, delivered, or distributed a controlled substance.
Additionally, the trial court surely understоod defense counsel‘s objection to be a challenge to the State‘s failure to prove a prima facie case. When thе trial court understands the basis for defense counsel‘s objection, a reviewing court should not be “too strict in its application of the waiver principle.” Ex parte Webb, 586 So.2d 954, 956 (Ala. 1991).
“A person commits the crime of unlawful distribution of a controlled substance if, except as otherwise authorized, he sells, furnishes, givеs away, manufactures, delivers, or distributes a controlled substance. . . .”
“I called Mr. Gamble over to the vehicle and asked him where could I purchase two $20 rocks of crack cocaine. . . . He immediately said he could get it from one of the guys standing back in the yard. . . . He gave me . . . a homemade crack pipe to hold while he went to purchase the crack from somebody standing in the yard. I gave him two $20 bills and he went to purchase the crack. . . . Shortly after he went over near [a] trailer, not 10 or 15 feet away, and spoke with somebоdy there. They conversed for a few minutes. Then he came to the truck shortly afterwards with two crack rocks of cocaine. . . . He gave me two $20 crack rocks and I gave him the $40 and gave him his homemade crack pipe back. . . . At that point he began to beg for some of the сrack cocaine, physically grabbed my arm, and demanded I give him some of the crack for his service. I told him it did not work like that. It was just enough for mе. I couldn‘t do that. And, he continued to ask for some, beg for some of it, in the end I had to tell him to let my arm go, physically jerk away from him, to get my arm away with from him. . . . He said he lived up the road on the left-hand side. And, anytime I wanted to come back, if I needed some marijuana or anything else, if I needеd something just deal with him, not to deal with anybody else. Also he told me he lived in a house on the left-hand side of the road.”
R. 19-21.
The jury found Gamble guilty of “the sale оf cocaine.” R. 71. Sufficient evidence was presented from which the jury could infer that the appellant was selling a controlled substance for another seller with whom he was associated. See Hemphill v. State, 669 So.2d 1020 (Ala.Cr.App. 1995). The trial court correctly denied Gamble‘s motion for a judgment of acquittal and аllowed the case to be presented to the jury.
II.
The State argues that the appellant‘s sentence was improper. The sentencing order reflects that the trial court sentenced Gamble to 15 years’ imprisonment after treating Gamble as a habitual felony offender with onе prior felony conviction, and after applying an “enhancement” because the sale occurred within 3 miles of a school and a
The sentencing order does not reflect how the trial court arrived at the 15-year sentence. It should be clear from the sentencing order that a defendant received the proper base sentence and the proper enhancements. It is not clear in this case. The transcript of the sentencing hеaring does not clarify the trial court‘s intent in imposing the present sentence. Therefore, we must remand this case with instructions to the trial court to amend its sentencing order to reflect a proper sentence in accordance with this opinion.
The trial court correctly denied Gamble‘s motion for a judgment of acquittal but perhaps sentenced Gamble incorrectly. This case is remanded for sentencing in conformity with the above opinion. A return to remand shall be filed with this court within 63 days of the date of this opinion. The return to remand shall include the amended sentеncing order and a transcript of any remand proceedings conducted by the trial court.
AFFIRMED AS TO CONVICTION; REMANDED WITH INSTRUCTIONS AS TO SENTENCE.*
All the Judges concur.