Cunningham v. State (In re Cunningham)

332 So.3d 929

EX PARTE Natasha Lashay CUNNINGHAM

(In re: Natasha Lashay Cunningham

v.State of Alabama )

1190187

Supreme Court of Alabama.

November 6, 2020

Robin Cobb Freeman of Shealy, Crum & Pike, LLC, Dothan, for petitioner.

Steve Marshall, atty. gen., and Edmund G. LaCour, Jr., solicitor gen., and A. Barrett Bowdre, deputy solicitor gen., and Laura I. Cuthbert, asst. atty. gen., for respondent.

SELLERS, Justice.¹

Natasha Lashay Cunningham petitioned for, and this Court granted, certiorari review of the judgment of the Court of Criminal Appeals holding that the offense of possession of a controlled substance is a lesser-included offense of the offense of distribution of a controlled substance. See Cunningham v. State, 332 So. 3d 918 (Ala. Crim. App. 2019). We reverse and remand.

Facts

The Houston County grand jury returned an indictment charging Cunningham with distribution of a controlled substance, a violation of § 13A-12-211, Ala. Code 1975.² That indictment reads:

"The Grand Jury of said county charge that before the finding of this indictment, Natasha Lashay Cunningham, whose name is otherwise unknown to the Grand Jury, did unlawfully sell, furnish, give away, deliver or distribute a controlled substance, to-wit: methamphetamine, in violation of Section 13A-12-211 of the Code of Alabama against the peace and dignity of the State of Alabama."

(Emphasis added.)

Following a trial, the Houston Circuit Court granted Cunningham's motion for a judgment of acquittal as to the distribution-of-a-controlled-substance charge 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, a violation of § 13A-12-212, Ala. Code 1975. The circuit court sentenced Cunningham to 48 months in prison. She appealed. On appeal, 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. This Court granted the petition for the writ of certiorari to review the Court of Criminal Appeals' decision.

Standard of Review

In reviewing the Court of Criminal Appeals’ decision on a petition for a writ of certiorari, this Court applies de novo the standard of review applicable in the Court of Criminal Appeals. Ex parte Knox, 201 So. 3d 1213 (Ala. 2015).

Discussion

Cunningham argues that the circuit court erred in instructing the jury on the possession-of-a-controlled-substance offense as a lesser-included offense of distribution of a controlled substance. In an unusual stance and contrary to its position below, the State agrees with Cunningham that, under the facts presented, the possession-of-a-controlled-substance offense should not have been submitted to the jury for its consideration. For the reasons provided herein, we agree.

"[T]o be a lesser included offense of one charged in an indictment, the lesser offense must be one that is necessarily included, in all of its essential elements, in the greater offense charged." Payne v. State, 391 So. 2d 140, 143 (Ala. Crim. App. 1980). "Whether a crime constitutes a lesser-included offense is to be determined on a case-by-case basis." Aucoin v. State, 548 So. 2d 1053, 1057 (Ala. Crim. App. 1989). In determining whether an offense is a lesser-included offense of the charged offense, "the potential relationship of the two offenses must be considered not only in the abstract terms of the defining statutes but must also be considered in light of the particular facts of each case." Ingram v. State, 570 So. 2d 835, 837 (Ala. Crim. App. 1990). To that end, the Court of Criminal Appeals has explained:

"The ‘particular facts’ of each case are those facts alleged in the indictment. Thus, ‘the statutory elements of the offenses and facts alleged in an indictment -- not the evidence presented at trial or the factual basis provided at the guilty-plea colloquy -- are the factors that determine whether one offense is included in another.’ Johnson v. State, 922 So. 2d 137, 143 (Ala. Crim. App. 2005)."

Williams v. State, 104 So. 3d 254, 264 (Ala. Crim. App. 2012) (emphasis added).

Moreover, § 15–8–25, Ala. Code 1975, provides:

"An indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment."

Similarly, Rule 13.2(a), Ala. R. Crim. P., mandates:

"The indictment or information shall be a plain, concise statement of the charge in ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged and with that degree of certainty which will enable the court, upon conviction, to pronounce the proper judgment."

In other words, an indictment must clearly inform the criminal defendant of the offense with which he or she is being charged and against which he or she is expected to defend. In this case, the indictment charging Cunningham tracked the distribution-of-a-controlled-substance statute and alleged that "Cunningham ... did unlawfully sell, furnish, give away, deliver or distribute a controlled substance, to-wit: methamphetamine, in violation of Section 13A-12-211 of the Code of Alabama." The circuit court granted Cunningham's motion for a judgment of acquittal as to that charge and, over her objection, instructed the jury on the offense of possession of a controlled substance as a lesser-included offense of the offense of distribution. Section § 13A-12-212(a)(1) provides that "[a] person commits the crime of unlawful possession of a controlled substance if[,] ... [e]xcept as otherwise authorized, he or she possesses a controlled substance enumerated in Schedules I through V."

The indictment charging Cunningham with distribution of a controlled substance, however, does not include the statutory element of possession, nor does 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. As indicated, the Court of Criminal Appeals held that the circuit court properly found possession of a controlled substance to be a lesser-included offense of distribution of a controlled substance because, it reasoned, evidence was presented at trial indicating that Cunningham actually possessed a controlled substance. However, it is not the evidence adduced at trial that anchors our analysis; rather, 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 enunciated in Williams, supra. That is, the statutory elements of the offenses and the facts alleged in an indictment -- not the evidence presented at trial -- are the factors that determine whether one offense is included in another.

Conclusion

Based on the foregoing, we reverse the judgment of the Court of Criminal Appeals, and we remand the cause to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Parker, C.J., and Stewart, J., concur.

Bryan and Mitchell, JJ., concur in the result.

Bolin, Shaw, Wise, and Mendheim, JJ., dissent.

MITCHELL, Justice (concurring in the result).

In its brief to this Court, the State confesses error and urges us to reverse Natasha Lashay Cunningham's conviction for possession of a controlled substance. That is a remarkable position for the State to take, and it weighs heavily as I analyze the issue before us. For that reason, and for the reasons generally outlined in the main opinion, I concur in the result.

BOLIN, Justice (dissenting).

Because Natasha Lashay Cunningham failed to raise the issue whether her indictment was defective, I must respectfully dissent.

Cunningham was indicted for distributing a controlled substance (methamphetamine), a violation of § 13A-12-211(a), Ala. Code 1975, and second-degree possession of marijuana, a violation of § 13A-12-214, Ala. Code 1975. She was convicted of unlawful possession of a controlled substance (methamphetamine), a violation of § 13A-12-212, Ala. Code 1975, and second-degree possession of marijuana. On appeal to the Court of Criminal Appeals, Cunningham argued that the circuit court erred: 1) by considering the offense of possession of a controlled substance to be a lesser-included offense of the offense of distribution of a controlled substance and submitting a charge on possession of a controlled substance to the jury for consideration; 2) by denying her motion for a mistrial after a witness stated that Cunningham had prior drug offenses; 3) by, in effect, denying her motion for a judgment of acquittal; 4) by denying her motion to suppress the evidence seized from her purse; and 5) by denying her Batson ³ motion.

With regard to the...