Horne v. State

318 Ga.App. 484

733 S.E.2d 487

HORNE

v.The STATE.

No. A12A1124.

Court of Appeals of Georgia.

Oct. 25, 2012.

Curtis Leon Horne, for Horne.

Rebecca Ashley Wright, for The State.

MILLER, Presiding Judge.

Following a jury trial, Curtis Horne ¹ was convicted of possession of cocaine with intent to distribute ( OCGA § 16–13–30(b)), violation of the Georgia Safety Belt law ( OCGA § 40–8–76.1(b)), and driving without a license ( OCGA § 40–5–20(a)). Horne filed a motion for new trial, which the trial court denied. On appeal, Horne contends that (i) the evidence was insufficient to sustain his drug conviction; (ii) the evidence failed to establish a proper chain of custody; (iii) the trial court erred in denying his motion to suppress since his arrest and the warrantless search of his car were illegal; (iv) the trial court erred in allowing him to represent himself at trial; (v) the trial court failed to properly respond to a jury question; (vi) the trial court erred in imposing recidivist sentencing; (vii) the trial judge erred in failing to recuse himself; and (viii) his appellate counsel provided ineffective assistance. Discerning no error, we affirm.

On appeal, this Court must view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence; we determine the sufficiency of the evidence in accordance with the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Short v. State, 234 Ga.App. 633, 634(1), 507 S.E.2d 514 (1998). “Conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.” (Citation and punctuation omitted.) McCombs v. State, 306 Ga.App. 64, 65(2), 701 S.E.2d 496 (2010).

So viewed, the trial evidence shows that on the evening of July 24, 2008, an officer with the Richmond County Sheriff's Office was conducting routine patrol when he observed Horne driving his vehicle on the roadway. The officer testified that when Horne passed by, he could see that Horne was not wearing a seatbelt, and that the seatbelt was hanging in the driver's side door. The officer initiated a traffic stop of Horne's vehicle due to the seatbelt violation.

During the traffic stop, the officer requested Horne's driver's license. Horne informed the officer that he did not have a driver's license with him, but provided the officer with his name and date of birth. The officer ran a computer check using Horne's information, which revealed that Horne did not have a valid driver's license, and that his license had been suspended since 1997. As a result of the violation, the officer placed Horne under arrest. The officer directed Horne to step out of his vehicle and to place his hands on the roof of the vehicle. As Horne exited the vehicle, the officer observed Horne reach his hand into his pants pocket, pull out a clear bag, and place the bag in the doorjamb of the vehicle. After the officer handcuffed Horne and secured him in the back of the patrol car, the officer returned to Horne's vehicle and retrieved the bag from the doorjamb.

The officer observed that the bag contained substances that were divided into two separate individual baggies. The officer performed field tests and weighed the substances, which confirmed that the substance in one baggie was 13.1 grams of crack cocaine and the substance in the other baggie was 7.5 grams of powder cocaine. The officer testified that based upon his experience and training, the quantity and separate packaging of the cocaine indicated that it was not for personal use, but rather, was intended for distribution.

The officer sealed the baggies of cocaine in an evidence bag and deposited the evidence bag into a secured evidence safe for transport to the Georgia Bureau of Investigation (“GBI”) Crime Lab. The GBI Crime Lab testing revealed that the drug substances were positive for cocaine.

Horne was subsequently indicted, tried, and convicted of the drug and traffic offenses.

1. Horne contends that the evidence was insufficient to sustain his conviction for

possession of cocaine with intent to distribute. He argues that others had equal access to the vehicle where the drugs were found, and that the evidence was insufficient to prove an intent to distribute the drugs. His arguments are without merit.

“Possession of cocaine may be joint or exclusive, actual or constructive. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” (Punctuation and footnotes omitted.) Thomas v. State, 291 Ga.App. 795, 797(1), 662 S.E.2d 849 (2008). Here, the evidence was sufficient to show that Horne had actual possession of the cocaine. In this regard, the officer testified that he observed Horne handling the bag of cocaine as he removed it from his pants pocket and attempted to hide it in the vehicle's doorjamb. Horne's arguments challenging the officer's credibility are unavailing. Determinations regarding the credibility of witnesses and the resolution of conflicts in the evidence are within the sole province of the jury and afford no basis for reversal on appeal. See id. at 797–798(1), 662 S.E.2d 849;Gaston v. State, 257 Ga.App. 480, 482(1), 571 S.E.2d 477 (2002).

Moreover, Horne's reliance upon the equal access rule is misplaced.

The equal access rule, as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. However, equal access is merely a defense available to the accused to whom a presumption of possession flows. Where the State did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense.... Moreover, the equal access rule applies only where the sole evidence of possession of contraband found in the vehicle is the defendant's ownership or possession of the vehicle.

(Citations and punctuation omitted.) Hight v. State, 293 Ga.App. 254, 258(5), 666 S.E.2d 678 (2008). Here, the State did not rely upon a presumption that the cocaine was in Horne's possession based upon his status as the driver of the vehicle. Rather, the State relied upon direct evidence that Horne had actual possession of the cocaine by handling and attempting to hide it. Under these circumstances, the equal access rule was inapplicable. See, e.g., Thomas, supra, 291 Ga.App. at 798(2), 662 S.E.2d 849.

The evidence also was sufficient to support a finding that the cocaine was intended for distribution.

It is true that mere possession of cocaine, without more, will not support a conviction for possession with intent to distribute. But additional evidence may support proof of intent to distribute, including the packaging of the contraband ... and expert testimony that the amount of contraband possessed was consistent with larger amounts usually held for sale rather than for personal use.

(Citations and punctuation omitted.) Burse v. State, 232 Ga.App. 729, 730(1), 503 S.E.2d 638 (1998). The officer opined that the amount of cocaine in Horne's possession was greater than that normally kept for personal use, and was separately packaged for distribution. Based upon this evidence, the jury was authorized to find that Horne possessed the cocaine with intent to distribute. See id. at 730–731(1), 503 S.E.2d 638.

2. Horne further argues that the drug evidence should have been excluded since the State failed to establish a proper chain of custody. ² We disagree.

In order to show a chain of custody adequate to preserve the identity of fungible evidence, the [S]tate must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The [S]tate is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence.

(Citations and punctuation omitted.) Sanders v. State, 243 Ga.App. 216, 217(1), 534 S.E.2d 78 (2000).

The evidence showed that upon retrieving and field testing the cocaine, the officer sealed the cocaine in an evidence bag with tamper resistant tape, followed procedures for filling out a property receipt, and deposited the evidence bag into a secured drug safe maintained by the Narcotics Division. An investigator with the Narcotics Division explained that the evidence bag contained an integrity seal that could not be removed without tearing the bag. The investigator further explained that the property receipt was used to track the property, and that each person who took custody of the evidence was required to sign the property receipt. The investigator stated that after the evidence bag was deposited into the drug safe, she removed the evidence bag and transported it to the GBI Crime Lab for testing, as noted on the property receipt. Upon delivering the evidence bag to the GBI Crime Lab, the property receipt was stamped with the date and time to reflect the delivery and was placed in a locker that was accessible only to the GBI Crime Lab technicians. A forensic drug chemist from the GBI Crime Lab testified that when the evidence bag was received at the lab, a bar code label was attached to further track the custody of the drug evidence at the lab. The chemist retrieved the evidence bag from the GBI Crime Lab locker and tested the drug substance.

The foregoing evidence sufficiently established that at every point, the cocaine evidence was clearly marked and well secured. No evidence of tampering was presented, and...