Brown v. State

355 Ga.App. 308

844 S.E.2d 182

BROWN

v.The STATE.

A20A0337

Court of Appeals of Georgia.

June 3, 2020

Sean J. Lowe, J. Ross Hamrick, for appellant.

Leigh E. Patterson, District Attorney, F. Kevin Salmon, Assistant District Attorney, for appellee.

Doyle, Presiding Judge.

Following a jury trial, Maverick Brown was convicted of trafficking in marijuana,¹ possession of marijuana with intent to distribute (two counts),² conspiracy to commit a violation of the Georgia Controlled Substances Act,³ and possession of a firearm by a convicted felon.⁴ Brown now appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to support the guilty verdict, (2) the jury's verdict is contrary to and strongly against the weight of the evidence, and (3) the trial court committed plain error by failing to instruct the jury that knowledge of the weight of marijuana was an essential element of the trafficking offense. Finding no reversible error, we affirm.

Construed in favor of the verdict,⁵ the evidence shows that the Georgia Bureau of Investigation conducted a video and telephone surveillance operation of Tyson Brown (Maverick's son), who was suspected of trafficking in marijuana. After viewing activity and intercepting conversations indicating that Tyson⁶ was selling marijuana from his house and using another location as a "stash house," officers executed search warrants on the same day at the two residences: 102 King Bee Circle (stash house) and 117 Jim Lee Drive (Tyson's house) in Floyd County. At the Jim Lee location, officers encountered Tyson in the process of flushing marijuana down the toilet and throwing a one-pound bag out a bathroom window; officers also found approximately $37,000 in cash in a bag under Tyson's bed. At the King Bee location, officers encountered Maverick Brown in the interior hallway of the two-bedroom house that smelled of marijuana. In the master bedroom night stand, officers discovered Maverick's identification card, prescription pills, and mail — all of which identified the King Bee location as his address. In the master bedroom closet, officers found two handguns, ammunition, and a safe that was "stuffed pretty full" of bundles of cash totaling approximately $90,000. In the closet of the spare bedroom at the King Bee residence, officers found two duffel bags containing a total of fourteen plastic bags containing a total of twelve pounds of marijuana.

Based on the investigation and the results of the search warrants, Maverick was charged as part of a multi-count indictment accusing Maverick, Tyson, and a local police officer⁷ of conspiring to traffic in marijuana. Following a jury trial, Maverick was found guilty of trafficking in marijuana, possessing marijuana with intent to distribute, possessing more than one ounce of marijuana, conspiring to traffic in marijuana, and possessing a firearm while a convicted felon. Maverick unsuccessfully moved for a new trial, and after the trial court granted his motion for an out-of-time appeal, he filed this appeal.

1. Maverick contends that the evidence was insufficient to support the verdict, making several arguments: (a) there was insufficient evidence of possession of the marijuana and guns because others had equal access to them, (b) the State failed to prove his knowledge of the weight of the marijuana, and (c) there was no evidence that he was part of a conspiracy. None of these arguments warrant reversal.

When an appellate court reviews the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.⁸

(a) Evidence of marijuana possession despite equal access by others. Maverick contends that the State failed to prove that he possessed the marijuana, particularly in light of equal access to the house by others including his wife. We disagree.

[If, as here] the State provides no direct evidence of actual possession, a conviction may be sustained with proof of constructive possession. A finding of constructive possession must be based upon some connection between the defendant and the contraband other than mere spatial proximity. Constructive possession exists [if] a person though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing. If the State presents evidence that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband. Although this presumption may be rebutted by showing that others had access to the premises, the equal access doctrine applies to rebut the presumption of possession only [if] the sole evidence of possession of contraband found on the premises is the defendant's ownership or possession of the premises. Although mere presence at the scene is not sufficient to convict one of being a party to a crime, criminal intent may be inferred from conduct before, during, and after the commission of a crime.⁹

At the outset, we note that there was direct evidence that Maverick lived at the King Bee residence and slept in the master bedroom, which had a closet where the safe and guns were found. To rebut the presumption that he possessed the contraband in the house, Maverick points out that other family members had access to the home, and his wife's belongings were found along with his in the master bedroom and closet area. Thus, he argues, they had equal access to the contraband in the house, and the State did not prove his possession of the contraband.¹⁰ But there was evidence connecting Maverick to the contraband other than his mere presence at the residence. For example, Maverick strenuously objected when police attempted to open the safe found in his closet. This conduct was direct evidence that Maverick asserted control or dominion over the safe and that he knew it contained incriminating evidence — approximately $90,000 in cash from drug transactions. Further, the safe and guns were found along with Maverick's clothing in his personal closet adjoining the bedroom where he slept.¹¹ In this way, the evidence differs from other cases in which the only evidence of possession was the defendant's mere presence in a house with nothing more connecting him to the contraband found elsewhere in the house.¹² Moreover, there was direct video evidence showing Maverick making a delivery of a bag to Tyson's house shortly after Tyson requested that marijuana be retrieved from the stash house. Although police did not verify the contents of the particular bag, the bag was similar to other duffel bags containing marijuana found at the stash house. Thus, taken as a whole and viewed in the light most favorable to the verdict, the evidence sufficiently connected Maverick to the cash, weapons, and marijuana to authorize a finding that he constructively possessed them.¹³

(b) Knowledge of the weight of marijuana. Maverick was accused of trafficking in marijuana that requires possessing an amount exceeding ten pounds,¹⁴ and the indictment alleged that Maverick "knowingly possess[ed] more than 10 pounds and less than 2,000 pounds of marijuana...." Based on this, Maverick argues that the State failed to prove that he knew that he possessed more than ten pounds of marijuana. But OCGA § 16-13-54.1 provides:

When an offense in this part measures a controlled substance or marijuana by weight or quantity, the defendant's knowledge of such weight or quantity shall not be an essential element of the offense, and the state shall not have the burden of proving that a defendant knew the weight or quantity of the controlled substance or marijuana in order to be convicted of an offense.

Therefore, Maverick's knowledge of the specific weight of the marijuana was not an essential element,¹⁵ and based on the analysis above in Division 1 (a), the evidence was sufficient to support a finding that Maverick knowingly possessed the marijuana found at his residence. That it turned out to be 12 pounds sufficed to support a finding of guilt for possessing a trafficking amount under OCGA § 16-13-31 (c).

(c) Evidence of Maverick's participation in a conspiracy. Maverick also challenges the sufficiency of the evidence that he was part of a conspiracy to traffic in marijuana. We disagree.

A person commits the offense of conspiracy to commit a crime [if] he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy. In order for a conspiracy to exist, there must be an agreement between two or more persons to commit a crime. Such agreement need not be express, nor does it require a "meeting of the minds" to the same degree necessary to form a contract; all that is required is a tacit mutual understanding between persons to pursue a common criminal objective. In the context of narcotics trafficking, courts have sometimes inferred such a tacit agreement even [if] participants had no direct contact with one another, [if] there was evidence that each defendant knew or had reason to know the scope of the criminal enterprise[ ] and had reason to believe that their own benefits derived from the operation were dependent upon the success of the entire venture.¹⁶

As noted above, the evidence supported a finding that Maverick knowingly...