Bustos v. State

365 Ga.App. 433

878 S.E.2d 774

BUSTOS

v.The STATE.

Portillo

v.The State.

A22A0652, A22A0898

Court of Appeals of Georgia.

September 26, 2022

Sydney Rene Strickland Webster, Atlanta, for Appellant in A22A0898.

Flynn Duncan Broady Jr., District Attorney, Leslie Anna Coots, Assistant District Attorney, for Appellee.

Frank M. Starosto, Star Law, for Appellant in A22A0652.

Gobeil, Judge.

In these companion cases, co-defendants Gustavo Bustos and Rogelio Garcia Portillo appeal from the trial court's denial of their motions for new trial. A jury found both Bustos and Portillo guilty of trafficking methamphetamine and possession of methamphetamine with intent to distribute, and the trial court sentenced them to 30 years each. On appeal, both men argue that there was insufficient evidence to support their convictions. Portillo further contends that he received ineffective assistance from trial counsel. We conclude that there is sufficient evidence to support Bustos's convictions but insufficient evidence to support Portillo's convictions. Accordingly, in Case No. A22A0652, we affirm Bustos's convictions and sentence. In Case No. A22A0898, we reverse Portillo's convictions.

Viewed in the light most favorable to the jury's verdict,¹ the evidence shows that law enforcement officers learned through wiretaps conducted as part of an ongoing investigation, that on April 13, 2016, Cesar Gonzalez would be receiving a large delivery of methamphetamine at Tramore Park in Cobb County. The officers established surveillance and observed as Gonzalez arrived at the location in a black Mercedes. Through intercepted communication, officers had learned that the drugs would be delivered to Gonzalez by a courier in a blue Honda, and they saw a blue Honda arrive at the park. The officers watched as the driver of the Mercedes walked up to the blue Honda and took a bright blue bag from the Honda's driver. The driver of the Mercedes returned to his vehicle, and the cars then exited the park and drove away in separate directions. Officers followed the Mercedes and executed a traffic stop; a search of the car revealed ten kilograms of methamphetamine. Other officers followed the blue Honda in an effort to determine where the drugs had originated. The Honda drove to a house at 1981 Winchester Court.

Appellant Portillo subsequently arrived at the Winchester Court home in a BMW owned by Luis Bustos ("Luis"). During the 30 to 45 minutes the officers watched the residence, they saw four men outside the home. One of the men, Jorge Quintero, stayed near the curb. The other three men – Portillo, Bustos, and Luis – went in and out of the basement. When outside, the men repeatedly looked up and down the road and appeared to be nervous, and officers suspected they were performing counter surveillance. Officers detained the four men after they began walking toward the Honda and the BMW as if they were about to leave.

Upon approaching the home, officers noticed a strong smell of acetone, consistent with methamphetamine processing, and saw drugs in plain view inside the basement residence. They obtained a search warrant, then entered the basement apartment and found a "conversion laboratory." On the stove in the kitchenette, there was a very large stock pot holding what was later confirmed to be methamphetamine suspended in a liquid. In the living area, there were several containers holding finished crystal methamphetamine. There were also digital scales in the kitchen area and a roll of packaging material in a closet. In a back room of the apartment, officers found identification documents for Quintero and another individual. Overall, officers located and seized 14 kilograms of methamphetamine in the home. No money or guns were recovered from the residence, and an officer explained that this was not unusual because it is common for drug organizations to compartmentalize their members into different tasks so that each member is in contact with very few other people. The officer further testified that, in his experience, only individuals associated with the organization would be permitted to come to a "stash house" location like the basement residence. Officers did not seize the defendants’ phones when they detained the men because, as one officer testified, they decided to devote their resources to higher level targets.

Appellants Portillo and Bustos, along with Luis, Quintero, Gonzalez, and another individual, were each charged with trafficking methamphetamine ( OCGA § 16-13-31 (e) ), and possession of methamphetamine with intent to distribute ( OCGA § 16-13-30 (b) ).

Portillo, Bustos, and Luis were co-defendants at a joint jury trial.

During the trial, officers testified that they saw appellants Portillo and Bustos enter and exit the Winchester Court basement apartment, although officers could not testify specifically about which men went into the house at what point or for how long. When the men were arrested, Portillo was walking toward the BMW and Bustos was walking toward the Honda, and the keys to the Honda were recovered from Bustos's pocket. Bustos initially told officers that he lived at the Winchester Court residence, but he later stated that he lived at a hotel. Portillo, however, told officers that he lived in Marietta.

The man who lived upstairs at 1981 Winchester Court testified that he leased the downstairs apartment where the contraband was found to Luis approximately three months before the arrests. After a few weeks, Luis brought appellant Bustos to the residence, and Bustos began to spend a lot of time in the basement, arriving at the apartment in a blue Honda. The man who lived upstairs also observed Quintero at the house on a few occasions, but never saw Portillo there.

The State presented evidence that Portillo was previously convicted of trafficking heroin in Douglas County. An officer testified that in March 2012, he arrested Portillo at a traffic checkpoint. When Portillo stopped at the checkpoint, there was a marijuana bong in plain view in his car. A pat-down then revealed that Portillo had in his pockets several plastic bags containing 14 grams of heroin and a small amount of marijuana. Portillo told officers that he was delivering the heroin, but he did not tell them where he had picked it up or where he was taking it.

The jury found all three co-defendants guilty of both offenses, and the trial court determined that Count 2 merged into Count 1 for purposes of sentencing. The court then sentenced each defendant to 30 years, clarifying that Portillo's sentence would run consecutive to the Douglas County sentence he was serving. The appellants filed motions for new trial, as amended, which the trial court denied following a hearing. Bustos and Portillo then filed these appeals.

Case No. A22A0652

1. Bustos argues that the State failed to present sufficient evidence to establish that he had constructive possession of the methamphetamine. He emphasizes that he was not named on the lease for the basement apartment where the drugs were recovered and there were no documents found inside the residence to connect him to it. He also argues that the case against him is based solely on circumstantial evidence. We conclude that there was sufficient evidence to support the jury's conclusion that Bustos was in constructive possession of the methamphetamine.

Under Georgia law, possession can be either actual or constructive. See Reyes v. State , 322 Ga. App. 496, 497 (1), 745 S.E.2d 738 (2013). A person has actual possession of an object "if he knowingly has direct physical control of it at a given time." Id. (citation and punctuation omitted). Constructive possession results when "[a] person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing." Id. (citation and punctuation omitted).

Constructive possession may be proven by circumstantial evidence but, "as with any charge based on purely circumstantial evidence, in order to support a conviction, the evidence must exclude every reasonable hypothesis, save that of constructive possession by the defendant." Lee v. State , 362 Ga. App. 171, 173 (1), 867 S.E.2d 303 (2021) (citation and punctuation omitted). As the Supreme Court has held,

questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and that finding will not be disturbed unless the verdict of guilty is unsupportable as a matter of law. In other words, whether the evidence shows something more than mere presence or proximity, and whether it excludes every other reasonable hypothesis, are questions committed principally to the trier of fact, and we should not disturb the decisions of the trier of fact about these things unless they cannot be supported as a matter of law.

Lebis v. State , 302 Ga. 750, 754 (II), 808 S.E.2d 724 (2017) (citations and punctuation omitted).

It is true mere presence at the scene of a crime, even coupled with knowledge and approval, is insufficient to convict one of being a party. However, presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred. A person will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. If the totality of circumstantial evidence is sufficient to connect the defendant with the possession of the drugs, the conviction will be sustained, even though there is evidence to authorize a contrary finding.

Martinez v. State , 303 Ga. App. 71, 73-74 (1), 692 S.E.2d 737 (2010) (citation and punctuation omitted).

Here, Bustos did not have actual possession of any drugs at the time of his arrest. But he was present at a large-scale drug stash house, and officers testified that a drug...