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Fitch v. State8/31/2001
re was insufficient evidence presented to convict him of using his position or office for direct financial gain. The testimony at trial indicated that Fitch did not lobby the commissioners to vote on the contract or to get business for himself, Edwards, or Bubba. Thus, according to Fitch, even assuming that he obtained personal financial gain from the transactions concerning the landfill, there was no evidence that this gain had been obtained by the use of his office or position. Thus, he says, each conviction under § 36-25-5(a), Ala. Code 1975, is due to be reversed and judgment rendered in his favor based on insufficient evidence. Moreover, in support of this claim Fitch argues that by returning a not-guilty verdict in Count one of case no. CC-97-0155, which charged Fitch with violating § 41-16-60, Ala. Code 1975, the jury found that Fitch did not have a personal interest in awarding the contract to Gates Construction when he voted to do so. According to Fitch, because the jury found that he did not have a personal interest in awarding the landfill contract, it could not find that he used his position or office for direct financial gain in violation of the ethics law.
Although there was no direct evidence of Fitch's "using" his position or office for direct financial gain, that term is not limited to active lobbying or to pressuring commissioners to give him business. This element will most often be established by circumstantial evidence.
"`"`"`In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes very reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); Clark v. United States, 293 F.2d 445 (5th Cir. 1961).
"`"`"` e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969). ...
"`"`....
"`"`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, 471 So. 2d 493 (Ala. 1985)."'" Langham v. State, 662 So. 2d 1201, 1205-06 (Ala.Crim.App.1994) (emphasis omitted).
The circumstantial evidence suggesting that Fitch used his position for direct personal gain includes the fact that Fitch stated that he would not allow his County employees, i.e., Edwards, to work on the landfill. He stated that his employees could not be spared from their County road-work duties. Only Fitch had the authority to grant District 4 employees leave. However, contrary to earlier comments, Fitch granted Edwards a leave of absence from his job with the County just two days before Eupora submitted a successful bid obtaining the contract to close the landfill. Because Fitch did receive personal financial gain from Edwards working at the landfill, Fitch clearly used his position for direct financial gain.
Moreover, there was testimony that Edwards used a piece of Cou
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