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Fitch v. State8/31/2001
l for the prosecution]: Well, is it part of your job to be familiar with the State laws regarding expenditures of public monies and be able to catch anything that might not be authorized by law?
"A: Yes.
"Q: I mean, that's what you do; isn't it?
"A: That's correct.
"Q: Well, based on your experience as an auditor who is trained to catch these violations of law in regard to public expenditures of public money, do you know of any provisions of law that specifically authorized Jerry Fitch, Sr., to receive any of these payments of these monies that we've introduced into evidence?
"A: No, I do not.
"MR. BAXLEY [defense attorney]: Object to, number one -- well, several grounds. This man is not qualified as a legal expert as to the provisions of the law that might authorize it to be done. It's outside the province of strictly auditing. It's outside of his province as an expert. Since he can't answer it because he's not qualified as an expert, it's an improper question to be asked any witness other than, possibly, a qualified legal expert. It invades the jury's province. It's argumentative.
"THE COURT: Based on the question, that's overruled. I believe he answered. Did he?
"THE WITNESS: Yes, sir.
"(By Mr. McCool [the prosecutor].)
"Q: I want to ask you, also, based on your experience --
"MR. BAXLEY: Well, let him answer it.
"THE COURT: I think he did. I think he may have --
"A: The answer was, I don't know of any statute authorizing it.
"MR. BAXLEY: What was the answer? I couldn't hear him.
"(By Mr. McCool.)
"Q: Say it again.
"A: I do not know of any statute that authorized him to receive those payments." R. 763-65.
The objection was made after the answer was given. " he appellant did not object until after the question had been asked and answered and did not move to exclude the witness' answer. ... Therefore, he did not preserve this issue for our review." James v. State, [Ms. CR-98-2417, April 28, 2000] So. 2d , (Ala.Crim.App. 2000).
Moreover, as discussed in Part I-A, Howell's testimony was admissible because "expert testimony as to the ultimate issue should be allowed when it would aid or assist the trier of fact." Henderson v. State, 715 So. 2d 863, 864 (Ala.Crim.App. 1997).
II.
Fitch contends that the trial court erred in denying his motion for a judgment of acquittal on the two charges of theft by deception, Count four of CC-97-0282 and Count two of CC-97-0164. We disagree.
The trial court's ruling on a motion for a judgment of acquittal must be reviewed "`in light most favorable to the prosecution. The standard of review is whether legal evidence was presented to the jury from which the jury could by fair inference find the defendant guilty beyond a reasonable doubt.'" Hale v. State, 654 So. 2d 83, 85 (Ala.Crim.App. 1994)(quoting Powell v. State, 576 So. 2d 1285, 1288 (Ala.Crim.App. 1991)). "`To prove a prima facie case in a criminal prosecution, the State must "fulfill its duty of proving the elements of the offense so that the jury may be allowed to consider its case."'" Gamble v. State, 699 So. 2d 978, 999 (Ala.Crim.App. 1997)(quoting Eldridge v. State, 415 So. 2d 1190, 1194 (Ala.Crim.App. 1982)). Thus, "the determination of whether any evidence exists to support a conviction is a question of law, the assessment of the probative value and weight of that evidence is left solely for the jury." Lockhart v. State, 715 So. 2d 895, 901 (Ala.Crim.App. 1997).
Theft of property is defined in §
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