Rel: 8/29/14




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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1130915
                             ____________________

                         Ex parte Howard Lynn Creel

                     PETITION FOR WRIT OF CERTIORARI
                    TO THE COURT OF CRIMINAL APPEALS

                         (In re: Howard Lynn Creel

                                           v.

                               State of Alabama)

                  (Cullman Circuit Court, CC-12-416;
                Court of Criminal Appeals, CR-13-0288)

BRYAN, Justice.

      WRIT DENIED. NO OPINION.

      Stuart, Bolin, Parker, Shaw, Main, and Wise, JJ., concur.

      Moore, C.J., and Murdock, J., dissent.
1130915

MOORE, Chief Justice (dissenting).

    I am not convinced that the jury had before it sufficient

evidence from which to conclude beyond a reasonable doubt that

Howard Lynn Creel knew that a passenger in the vehicle Creel

was driving, Michael Shane Hardin, had methamphetamine in his

possession. "'Where the accused is not in exclusive possession

of the premises, his knowledge of the presence of a controlled

substance may not be inferred 'unless there are circumstances

tending to buttress this inference.'" Ex parte Harper, 594 So.

2d 1181, 1194-95 (Ala. 1991)(quoting Lyons v. State, 455 So.

2d 295, 296 (Ala. Crim. App. 1984)). The fact that Creel fled

the scene in the vehicle was not sufficient to establish that

he knew that Hardin possessed the methamphetamine. There are

many other reasons Creel might have fled the scene. Moreover,

arresting officer Jimmy Barnes testified that he did not smell

the methamphetamine until he unzipped the bag containing the

methamphetamine. There is no evidence indicating that Creel

was in the officer's presence while the bag was unzipped;

therefore, there is no evidence indicating that he could have

smelled the methamphetamine before fleeing. In light of the

foregoing, I believe there was not enough evidence to connect


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1130915

Creel to the methamphetamine for the purposes of prosecution

under § 13A-12-218, Ala. Code 1975; therefore, I dissent.




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