Goforth v. State

360 Ga.App. 832

861 S.E.2d 800

GOFORTH

v.The STATE.

A21A0793

Court of Appeals of Georgia.

July 27, 2021

Carlan Law, William Edwin Carlan, Canton, Cherokee County, for Appellant.

Rosemary M. Greene, District Attorney, Sharon Moyer Fox, Calhoun, Erle Jackson Newton III, Assistant District Attorneys, for Appellee.

Dillard, Presiding Judge.

Following trial, a jury convicted Bobby Goforth on four counts of being a party to the sale of methamphetamine and three counts of being a party to trafficking in methamphetamine. On appeal, Goforth challenges the sufficiency of the evidence supporting his convictions and further argues that the trial court erred in allowing two witnesses to testify as to his identity in surveillance photographs and videos. For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the record shows that in early 2016, a detective with the Gordon County Sheriff's Office obtained information that Goforth and his friend, Timothy Lumpkin, were involved in the sale of methamphetamine in the Calhoun area. As a result, the detective instructed a confidential informant ("CI")—who had known Goforth for a while—to set up a controlled purchase of methamphetamine. Then, on February 9, 2016, the CI called Goforth—with the detective listening in on the call—and asked to buy methamphetamine. Goforth agreed and told the CI to meet him at a local motel. The detective then wired the CI, gave her $200 in bills (after copying the serial numbers), and followed her to the motel to conduct surveillance. At the motel, the CI purchased two "eight balls" (three-and-one-half grams each) of methamphetamine from Lumpkin for the $200. Following the buy, Goforth called the CI and told her that there was "plenty more where that came from."

On February 17, 2016, the CI called to make another purchase of methamphetamine—with the detective again listening in on the conversation—and spoke with both Goforth and Lumpkin. And this time, Lumpkin directed the CI to meet at a nearby Home Depot. The detective then gave the CI another $200, similarly with serial numbers that had been copied, and also set her up with a wire so the transaction could be recorded. Shortly thereafter, while under surveillance, the CI met Lumpkin in the parking lot of the Home Depot and purchased two more eight balls of methamphetamine.

One week later, on February 24, 2016, the detective had the CI make a call to Goforth to set up another methamphetamine purchase, while again listening in on the conversation. But this time, the CI asked to buy an ounce and a quarter of methamphetamine, and Goforth told her to meet at a local fast food restaurant. The detective then gave the CI $700 in cash—that, again, had been photocopied—and followed her to the restaurant to monitor the transaction. And in the restaurant's parking lot, the CI met Lumpkin and exchanged the cash for drugs.

The final transaction occurred on March 17, 2016, after the CI contacted Goforth via a Facebook message. Goforth instructed the CI to meet him at another motel in Calhoun. Once again, prior to the meeting, the detective gave the CI $1,000 (which had been copied), had her wear a wire, and followed her to the motel to conduct surveillance. Then, upon arriving at the motel, the CI met Goforth, who directed her to room 127. And once she was inside the room, the CI discussed the transaction with Goforth and Lumpkin, and while they were speaking she noticed a large plastic bag filled with what she believed to be methamphetamine. Subsequently, the CI gave Lumpkin the money in exchange for the drugs.

The following day, March 18, 2016, the detective obtained a warrant to search the motel room where the CI purchased drugs the day before. And when the detective and several other sheriff's deputies arrived, they encountered Goforth and Lumpkin just outside room 127 and placed both of them, as well as two women who were in the room, under arrest. Inside the motel room, the deputies found 43 grams of methamphetamine in a black camera case and 1.5 grams of the drug in two separate plastic bags that were inside a black nylon bag lying on the room's dresser. Underneath the room's bathroom sink, the deputies found a plastic bag containing approximately 221 grams of methamphetamine, and in a purse, they recovered another 224 grams of the drug. The purse also contained a notebook, in which drug transactions had been recorded, and the deputies observed a small handgun, scales, and packaging materials on the room's bed. Additionally, in searching Lumpkin's car (which was parked in the lot just outside the motel room), the deputies recovered $4,400 in cash, with $1,000 matching the serial numbers of the money the detective gave to the CI for the previous controlled purchases.

Thereafter, the State charged Goforth and Lumpkin, via the same indictment, with four counts of being a party to the sale of methamphetamine, three counts of being a party to trafficking in methamphetamine, and one count of possession of a firearm during the commission of a felony. Also in the same indictment, the State charged Stephanie Baldwin and Heather Jones, the two women in the motel room on the day the warrant was executed, with one count of being a party to trafficking in the methamphetamine that was recovered during the search and one count of possession of a firearm during the commission of a felony. The case then proceeded to trial, during which the State presented the aforementioned evidence through the testimony of the CI and the detective. In addition, the State called a Georgia Bureau of Investigation forensic chemist, who testified that the substances purchased by the CI and recovered from the motel room constituted various weights of methamphetamine. The State also introduced several recordings of phone calls Goforth made while in pre-trial detention following his arrest, in which he discussed—indeed bragged about—his drug-selling business.

At the conclusion of the trial, the jury found Goforth and Lumpkin guilty on all charges except the possession-of-a-firearm-during-the-commission-of-a-felony charge. The jury acquitted Baldwin on both charges, acquitted Jones on the possession-of-a-firearm-during-the-commission-of-a-felony charge, but found her guilty on the trafficking charge, albeit for a smaller amount than alleged in the indictment. Subsequently, Goforth obtained new counsel and filed a motion for new trial, which the trial court denied after holding a hearing on the matter. This appeal follows.

1. Goforth first contends that the evidence was insufficient to support his convictions on the charges of being a party to the sale of methamphetamine and the trafficking of methamphetamine. We disagree.

When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.² And, of course, in evaluating the sufficiency of the evidence, we "do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."³ The jury's verdict will be upheld, then, so "long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case."⁴ Bearing these guiding principles in mind, we turn to Goforth's challenge to the sufficiency of the evidence.

OCGA § 16-13-30 (b) provides that it is unlawful for any person to "manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance[,]" including methamphetamine.⁵ Additionally, OCGA § 16-13-31 (e) provides:

Except as authorized by this article, any person who sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine, amphetamine, or any mixture containing either methamphetamine or amphetamine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in methamphetamine or amphetamine[.]

Importantly, under OCGA § 16-2-20 (a), "[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime." And under OCGA § 16-2-20 (b) (3), "[a] person is concerned in the commission of a crime only if he [i]ntentionally aids or abets in the commission of the crime[.]"

In this case, the indictment charged Goforth with four separate counts—Counts 1, 2, 4, and 6—of being a party to the crime of the sale of methamphetamine based on the four distinct sales to the CI on February 9, 17, and 24, 2016, and March 17, 2016, respectively. In Counts 3, 5, and 7, the indictment charged Goforth with being a party to the crime of trafficking methamphetamine, alleging that on February 24, 2016, he did "sell more than 28 grams of a mixture containing methamphetamine;" on March 17, 2016, he did "sell more than 28 grams of a mixture containing methamphetamine;" and on March 18, 2016, he did "possess more than 400 grams of a mixture containing methamphetamine[.]"

Focusing primarily on the trafficking charge in Count 7 of the indictment, Goforth argues that the evidence was insufficient to prove that he was in possession of the methamphetamine found in Room 127 of the motel. We disagree.

Under Georgia law, "possession can be actual or constructive[.]"⁶ And a person has "actual possession of a thing if he knowingly has direct physical control of it at a given time."⁷ In addition, 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 is then in constructive possession of it."⁸ Importantly, constructive possession must be "based on a connection between the defendant and the object that is more than spatial proximity."⁹ Moreover, when it is "established wholly on circumstantial evidence, the law requires...