Fitch v. State8/31/2001
violation of Section 36-25-5(a) of the Code of Alabama, as amended, against the peace and dignity of the State of Alabama." C.R. 3.
This count does not charge that Fitch used his office for Edwards's direct personal financial gain, but charges that Edwards used his position or office for Edwards's direct personal gain. Fitch argues that no evidence was produced at trial tending to prove that Edwards used his position for direct personal financial gain, i.e., that Edward's had committed an ethics violation. Thus, according to Fitch, there was no proof of a crime as to which Fitch could aid and abet. According to Fitch, the essence of the offense in § 36-25-5(a), Ala. Code 1975, is an abuse of power. Breland v. Ford, 693 So. 2d 393, 406 (Ala. 1997). Fitch asserts that Edwards did not have any power to abuse, and, therefore, that he did not violate this statute.
In 1994, § 36-25-5(a) 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." (Emphasis added.)
In 1994, § 36-25-1(9), Ala. Code 1975, defined public employee as:
"Any person employed at the state, county or municipal level of government or their instrumentalities who is paid in whole or in part from state, county or municipal funds."
"`In a challenge of the sufficiency of the evidence, an appellate court must consider the evidence in the light most favorable to the prosecution, and the appellate court will not substitute its judgment for that of the trier of fact.'" Gamble v. State, [Ms. CR-97-0698, February 4, 2000] So. 2d , (Ala.Crim.App. 2000)(quoting Maddox v. State, 620 So. 2d 132, 133 (Ala.Crim.App. 1993)).
"Section 13A-2-23, Ala. Code 1975, Alabama's accomplice-liability statute, provides, in pertinent part:
"`A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
"`....
"`(2) He aids or abets such other person in committing the offense ....'" Gamble v. State, [Ms.CR-97-0698, February 4, 2000] So. 2d , (Ala.Crim.App. 2000).
"Aid and abet comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary." Turner v. State, 674 So. 2d 1371, 1376 (Ala.Crim.App. 1995) (citations omitted). "`The participation in a crime and the community of purpose of the perpetrators need not be proved by direct or positive testimony, but may be inferred from circumstantial evidence.'" Limbaugh v. State, 581 So. 2d 5, 10 (Ala.Crim.App. 1991), quoting Tice v. State, 460 So. 2d 273, 279 (Ala.Crim.App. 1984). Fitch's intent was "an issue for the jury to resolve.'" Waldrop, supra.
There is sufficient evidence that Edwards violated the ethics law. There is no dispute that before taking a leave of absence, Edwards was employed by the Pickens County Commission as a foreman for District 4 and that he took a leave of absence from this job to work as an independent contractor on the landfill closure. His position with the County comes within the definition of public employee and subjected him to the ethics law. Instead of allowing Edwards to work at the landfill for the County as a County employee, Fitch helped Edwards, through Eupora, to formulate a bid to submit for the landfill project by meeting with Edwards and Koehn at the landfill. Fitch then granted his business partner, Edwards, a leav
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