Ex parte Natasha Cunningham.Annotate this Case
Natasha Cunningham petitioned for, and was granted, certiorari review of the Court of Criminal Appeals' judgment holding that the offense of possession of a controlled substance was a lesser-included offense of the offense of distribution of a controlled substance. Cunningham's motion for judgment of acquittal as to the distribution-of-a-controlled-substance charge was granted because the evidence did not support that charge. Over Cunningham's objection, the circuit court instructed the jury on possession of a controlled substance as a lesser-included offense of distribution of a controlled substance. The jury returned a verdict finding Cunningham guilty of possession of a controlled substance. The Court of Criminal Appeals held that the circuit court properly instructed the jury on the offense of possession of a controlled substance as a lesser-included offense of distribution of a controlled substance. As part of its analysis, the Court of Criminal Appeals recognized that there could be circumstances in which a controlled substance could be distributed without a defendant being in actual or constructive possession of the substance. The court then reasoned that, because there was evidence indicting that Cunningham actually possessed a controlled substance, the jury was free to consider possession as a lesser-included offense of the charged offense of distribution. In reversing the appellate court's judgment, the Alabama Supreme Court found the indictment charging Cunningham with distribution did not include the statutory element of possession, nor did it allege any facts essential to the offense of possession of a controlled substance. Thus, under the facts of this case, because the indictment enumerated only the statutory language for the offense of distribution of a controlled substance, Cunningham was not given sufficient notice that she would have to defend against the offense of possession of a controlled substance. "We look to the indictment and must strictly construe it. To do otherwise would treat the proceedings in this case as if the terms of the indictment were so flexible as to imply a factual allegation that Cunningham was in possession of a controlled substance. To reach such a determination would require us to disregard the law."