Fitch v. State8/31/2001
tain direct personal financial gain for himself, to-wit: $6000.00 paid on a loan owed for equipment owned by the said Jerry T. Fitch, Sr., out of $30,000.00 in public funds expended for closure of the Pickens County Landfill, such use and gain not being authorized by law, in violation of Section 36-25-5(a) of the Code of Alabama, as amended." C.R. 353.
At the time of the alleged offense, § 36-25-5(a), Ala. Code 1975, provided:
"No public official or employee shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law."
When reviewing the sufficiency of the evidence to sustain a conviction,
"`" a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So. 2d 485 (Ala.Cr.App. 1984), aff'd, 471 So. 2d 493 (Ala. 1985)."'" Dill v. State, 723 So. 2d 787, 796 (Ala.Crim.App. 1998)(quoting Burell v. State, 680 So. 2d 975, 977 (Ala.Cr.App. 1996), quoting in turn Powe v. State, 597 So. 2d 721, 724 (Ala. 1992)).
This conviction arises from the first of four payments the Pickens County Commission made to Perma Corporation for work done closing the landfill. This payment to Perma Corporation was made September 28, 1994, in the amount of $134,400. In turn, Perma Corporation paid its subcontractor, Gates Construction, $126,400, which, in turn, paid its subcontractor, Edwards, $66,400, who then paid Bubba $30,000, for work performed closing the landfill. Bubba used $6,000 of the proceeds to pay a bank loan that Fitch had cosigned. The proceeds from the loan were used to purchase a John Deere brand tractor.
On March 14, 1994, Fitch and Bubba obtained a loan, loan number 331881, from First National Bank of Central Alabama, the principal amount being $15,022.40. Fitch cosigned on this loan. The loan stated that it was an "open note" and that security for the loan was Fitch's personal financial statement. State's Exhibit 68. The loan stated that it was a "single advance" with no additional advances contemplated under the note, and, as such, the note did not list any conditions for future advances. State's Exhibit 68. The maturity date of this loan was September 10, 1994. From April through September Bubba made several payments on the loan. It does not appear from the record that Fitch contributed toward payment of the loan during this time.
On September 12, 1994, the day before Perma Corporation was awarded the landfill contract, Bubba executed a loan that on its face purports to be a "renewal of" this loan, loan 331881, for the unpaid principal amount of $10,172.96. State's Exhibit 68. The note stated on its face that the purpose of the loan was a "renewal" to purchase equipment. State's Exhibit 69. Fitch did not cosign this loan. The "renewed" loan states that it was an "open note" and that the security was Bubba's "deposit accounts and other rights to the payment of money from you." State's Exhibit 69. The renewal was given a new loan number, 332511.
Ultimately, Bubba made a $6,000 payment on the renewed loan from money he was paid for his work closing the landfill. This money originated as a payment from the Pickens County Commission to Perma Corporation for work on the landfill closure. This payment underlies Fitch's conviction for the charge recited above. According to Fitch, because Bubba renewed the original loan in Bubba's name only, Fitch was no longer obligated under the original l
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