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Fitch v. State8/31/2001
nty equipment called a sheep-footed roller to close the landfill. The jury could infer that Fitch was aware of this because there was testimony from at least one witness that Fitch was at the site most days.
Additionally, Fitch made incriminating comments before awarding and after awarding the contract. There was testimony that Fitch expressed an interest in getting the landfill contract himself when he stated "`I wish that I wasn't involved,' that would like to have the contract." R. 880. There was also testimony that Fitch commented that "[Commissioner Latham] was just mad because [Fitch] had friends that could get things done." R. 934. The implication was that Fitch had arranged for his "friends" to do the work.
There was sufficient circumstantial evidence to support submitting the case to the jury. Moreover, this Court cannot reach "a clear conclusion that the finding and judgment are wrong." Williams v. State, [Ms. CR-98-1734, December 10, 1999] So. 2d
, (Ala.Crim.App. 2000) aff'd, [Ms. 1990902, January 12, 2001] So. 2d (Ala. 2001)(quoting White v. State, 546 So. 2d 1014, 1017 (Ala.Crim.App. 1989), quoting in turn, Kelly v. State, 273 Ala. 240, 244, 139 So. 2d 326 (1962)). Therefore, the trial court did not error in denying Fitch's challenge to the sufficiency of the evidence made at the conclusion of the State's case and at the end of all the evidence.
VII-B.
In addition to his initial argument of insufficient evidence, and in direct response to the State's argument in its brief, Fitch argues in his reply brief that an acquittal under § 41-16-60, Ala. Code 1975 (a county commissioner cannot award a contract in which he has an interest), prevents any convictions under § 36-25-5(a) (use of office to obtain financial gain) because these statutes are mutually exclusive, i.e., if the jury found that Fitch did not award a contract in which he had an interest, it could not find that he used his office to obtain financial gain.
"`The general rule is that consistency between the verdicts on the separate counts of a multicount indictment is not required.' Moss v. State, 536 So. 2d 129, 136 (Ala.Cr.App. 1988).
"`A defendant convicted by a jury on one count cannot attack that conviction on the ground that it is inconsistent with the jury's verdict of acquittal on another count. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189,76 L.Ed. 356 (1932).
"`"The general rule is that there need be no rational compatibility or consistency between the verdicts on the several counts of an indictment. The exception to this rule is where the jury returns multiple convictions as to crimes which are mutually exclusive of each other. Conway v. State, 489 So. 2d 641, 642 (Ala. Cr. App. 1986) (Verdicts of not guilty by kidnapping and guilty of felony-murder were mutually exclusive. Verdicts of not guilty of intentional murder but guilty of manslaughter and guilty of felony-murder were not mutually exclusive.). See also Smelcher v. State, 520 So. 2d 229, 232 (Ala. Cr. App. 1987) (verdicts of guilty of rape but not guilty of sodomy [when victim testified that defendant raped and sodomized her] not inconsistent); Oden v. State, 41 Ala. App. 212, 215, 127 So. 2d 380 (1961) (`On review we cannot treat the two counts as charging an indivisible crime or even yoked offenses.' No error found because a conviction for making or distilling alcoholic liquors and acquittal for possession of a still)."' "Grikis v. State, 552 So. 2d 187 (Ala. Cr. App. 1989) (brackets added)." Lackey v. State, 615 So. 2d 145, 156 (Ala.Crim.App. 1992)(quoting Inmon v. State, 585 So. 2d 261, 268 (Ala.Crim.App. 1991)).
At the time of the offense, § 41-16-60
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