Notice: This opinion is subject to formal revision before publication in the advance
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Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2008-2009
State of Alabama
Appeal from Elmore Circuit Court
The appellant, Timothy Jones, was convicted of one count
the first degree,
violation of § 13A-4-3 and § 13A-8-41, Ala. Code 1975.
sentenced as an habitual offender to life imprisonment without
the possibility of parole.
The evidence established the following.
On November 23,
2005, at approximately 9:00 a.m., an Elmore County resident
telephoned emergency 911 to report that she had observed three
black males "passing a gun" around inside a vehicle, which she
immediately advised of the suspicious situation.
Within minutes, Millbrook police officers conducted a
provided by the 911 caller.
Three black males were in the
vehicle: Peter McWilliams was the driver, Gary Scott was in
the front passenger seat, and Jones was in the rear passenger
One of the officers who performed the traffic stop
testified that as he approached the vehicle, he observed Jones
making furtive movements in the rear of the vehicle, as if he
was trying to hide something.
The officers asked for consent
to search the vehicle, and the occupants consented.
During their search, the officers discovered a small door
behind the armrest in the backseat from which a backseat
passenger could gain access to the trunk.
Upon opening the
small door, officers found a rubber boot.
two loaded pistols.
The boot contained
A subsequent check of the serial numbers
on the guns revealed that one of the guns had been reported
In addition, the officers found two ski masks in the
trunk of the vehicle.
All three men
Millbrook Police Department, where they were individually
All three admitted that they had driven from
Montgomery to Millbrook.
Scott and McWilliams admitted that
they knew that the guns were in the trunk because they had
gone to get the guns before driving to Millbrook.
denied having any knowledge of the existence of the guns.
McWilliams told police that he, Jones, and Scott had
planned to commit a robbery.
McWilliams said they had no
spontaneously select a place or person for a robbery.
conspiring with McWilliams and Jones to commit robbery, and he
was sentenced accordingly.
The record reveals that the following occurred earlier
that day in Montgomery: two black males robbed an individual
and threatened to shoot a witness.
They fled in a vehicle
description of the vehicle, which matched the vehicle driven
by McWilliams when he was stopped by the Millbrook police.
Jones matched a witness's physical description of one of the
The robbery victim and another witness
identified Gary Scott as one of the robbers.
Scott was later
arrested and charged with the Montgomery robbery.
Jones argues that the trial court erred when it denied
his motion for a judgment of acquittal.
claims that the State failed to present sufficient evidence
that he had conspired to commit first-degree robbery.
"In deciding whether there is sufficient evidence to
support the verdict of the jury and the judgment of
the trial court, the evidence must be reviewed in
the light most favorable to the prosecution. Cumbo
v. State, 368 So. 2d 871 (Ala. Cr. App. 1978), cert.
denied, 368 So. 2d 877 (Ala. 1979).
evidence presents a jury question not subject to
review on appeal, provided the state's evidence
establishes a prima facie case. Gunn v. State, 387
So. 2d 280 (Ala. Cr. App.), cert. denied, 387 So. 2d
283 (Ala. 1980).
The trial court's denial of a
motion for a judgment of acquittal must be reviewed
by determining whether there existed legal evidence
before the jury, at the time the motion was made,
from which the jury by fair inference could have
found the appellant guilty. Thomas v. State, 363 So.
2d 1020 (Ala. Cr. App. 1978).
In applying this
standard, the appellate court will determine only if
legal evidence was presented from which the jury
could have found the defendant guilty beyond a
reasonable doubt. Willis v. State, 447 So. 2d 199
(Ala. Cr. App. 1983); Thomas v. State.
evidence raises questions of fact for the jury and
such evidence, if believed, is sufficient to sustain
a conviction, the denial of a motion for a judgment
of acquittal by the trial court does not constitute
error. Young v. State, 283 Ala. 676, 220 So. 2d 843
(1969); Willis v. State. A verdict of conviction
will not be set aside on the ground of insufficiency
of the evidence unless, allowing all reasonable
presumptions for its correctness, the preponderance
of the evidence against the verdict is so decided as
to clearly convince this court that it was wrong and
Breckenridge v. State, 628 So. 2d 1012, 1018 (Ala. Crim. App.
"'In determining the sufficiency of the
evidence to sustain the conviction, this
Court must accept as true the evidence
introduced by the State, accord the State
all legitimate inferences therefrom, and
consider the evidence in the light most
favorable to the prosecution.' Faircloth v.
State, 471 So. 2d 485, 489 (Ala. Cr. App.
1984), affirmed, Ex parte Faircloth, 
So. 2d 493 (Ala. 1985).
"'"The role of appellate courts
is not to say what the facts are.
Our role, ... is to judge whether
sufficient to allow submission of
an issue for decision to the
Ex parte Bankston, 358
So. 2d 1040, 1042 (Ala. 1978). An
appellate court may interfere
with the jury's verdict only
conclusion that the finding and
judgment are wrong."
State, 273 Ala. 240, 244, 139 So.
2d 326 (1962).
"The rule is
clearly established in this State
that a verdict of conviction
should not be set aside on the
ground of the insufficiency of
the evidence to sustain the
verdict, unless, after allowing
all reasonable presumptions of
preponderance of the evidence
against the verdict is so decided
as to clearly convince the court
that it was wrong and unjust."
Bridges v. State, 284 Ala. 412,
420, 225 So. 2d 821 (1969). ...
evidence is conclusive on appeal.
Roberson v. State, 162 Ala. 30,
50 So. 345 (1909).
there is ample evidence offered
by the state to support a
evidence offered by the defendant
is in sharp conflict therewith
Fuller v. State, 269
Ala. 312, 333, 113 So. 2d 153
(1959), cert. denied, Fuller v.
Alabama, 361 U.S. 936, 80 S. Ct.
380, 4 L. Ed. 2d 358 (1960).'
Granger [v. State], 473 So. 2d
[1137,] 1139 [(Ala. Crim. App.
"...'Circumstantial evidence alone is enough to
support a guilty verdict of the most heinous crime,
provided the jury believes beyond a reasonable doubt
that the accused is guilty.' White v. State, 294
Ala. 265, 272, 314 So. 2d 857, cert. denied, 423
U.S. 951, 96 S. Ct. 373, 46 L. Ed. 2d 288 (1975).
'Circumstantial evidence is in nowise considered
inferior evidence and is entitled to the same weight
as direct evidence provided it points to the guilt
of the accused.' Cochran v. State, 500 So. 2d 1161,
1177 (Ala. Cr. App. 1984), affirmed in pertinent
part, reversed in part on other grounds, Ex parte
Cochran, 500 So. 2d 1179 (Ala. 1985)."
White v. State, 546 So. 2d 1014, 1017 (Ala. Crim. App. 1989).
Section 13A-8-41, Ala. Code 1975, states:
"(a) "A person commits the crime of robbery in
the first degree if he violates Section 13A-8-43 and
"(1) is armed with a deadly weapon or
dangerous instrument; or
Section 13A-8-43 states:
"(a) A person commits the crime of robbery in the
third degree if in the course of committing a theft
"(1) Uses force against the person of the
owner or any person present with intent to
physical power of resistance; or
"(2) Threatens the imminent use of force
against the person of the owner or any
person present with intent to compel
acquiescence to the taking of or escaping
with the property."
A person commits criminal conspiracy when "with the
intent that conduct constituting an offense be performed, he
agrees with one or more persons to engage in or cause the
performance of such conduct, and any one or more of such
persons does an overt act to effect an objective of the
§ 13A-4-3, Ala. Code 1975.
"In order that the fact of a conspiracy may be
established, it need not be proved by evidence of an
express agreement or compact between the alleged
conspirators, or by any direct evidence of any
inferentially, or by circumstantial evidence.
Conspiracies from their very nature are usually
entered into in secret, and are consequently
difficult to be reached by positive testimony, which
renders it peculiarly necessary and proper to permit
them to be inferred from the circumstances."
Conley v. State, 354 So. 2d 1172, 1177 (Ala. Crim. App. 1977),
quoted in C. Gamble, McElroy's Alabama Evidence, § 195.03(2),
at 947 (5th ed. 1996).
"It is well settled that a conspiracy need not be
proved by direct and positive evidence and may be
proved by circumstantial evidence. Lewis [v. State,
414 So. 2d 135 (Ala. Crim. App. 1992)]; Stinson v.
State, 401 So. 2d 257 (Ala. Crim. App.), cert.
denied, 401 So. 2d 262 (Ala. 1981). In determining
whether the State presented a prima facie case, this
court will consider the evidence in the light most
favorable to the State. Hutcherson v. State, 441
So. 2d 1048 (Ala. Crim. App. 1983); Smelcher v.
State, 385 So. 2d 653 (Ala. Crim. App. 1980)."
Salter v. State, 578 So. 2d 1092, 1094 (Ala. Crim. App. 1990).
Here, the State presented a prima facie case of the
existence of a conspiracy between Jones and his two coconspirators.
The statements of McWilliams and Scott and the
circumstantial evidence links Jones to the conspiracy.
on the evidence presented, the jury could have reasonably
found that Jones participated in the robbery at gunpoint in
Montgomery and then went to Millbrook, where he was found with
suspects described by eyewitnesses from the previous robbery.
Jones was in an automobile that fit the description of the
automobile identified in the Montgomery robbery.
enforcement officers discovered two guns and ski masks in the
trunk of the car.
McWilliams and Scott admitted that they
knew about the guns and they both admitted that they had
conspired with Jones to commit the robbery.
Thus, there was
sufficient evidence to sustain Jones's conviction and the
trial court did not err in its denial of Jones's motion for
judgment of acquittal.
Jones also argues that the trial court erred when it
sentenced him to life imprisonment without the possibility of
The State requests that we remand this case to the
trial court for Jones to be resentenced in accordance with
§ 13A-5-9, Ala. Code 1975.
Conspiracy to commit first-degree robbery is a Class B
The range of punishment for a defendant convicted of
a Class B felony having been previously convicted of any three
felonies is life imprisonment or any term not less than 20
years. § 13A-5-9(c)(2), Ala. Code 1975.
At the sentencing hearing in the instant case the trial
court found that Jones had three prior felony convictions and
sentenced Jones to life imprisonment without the possibility
Thus, Jones's sentence falls outside the range
prescribed in § 13A-5-9, Ala. Code 1975.
Therefore, we must
remand this case to the trial court for sentencing pursuant to
§ 13A-5-9, Ala. Code 1975, which provides for a punishment of
imprisonment "for life or any term of not less than 20 years."
Accordingly, this case is remanded for proper sentencing
consistent with this opinion.
Remand should be made to this
Court within 49 days from release of this opinion.
AFFIRMED AS TO CONVICTION; REMANDED WITH INSTRUCTIONS AS
Baschab, P.J., and McMillan and Welch, JJ., concur.
Shaw, J., concurs in the result.