Kennedy v. State

899 S.E.2d 803

KENNEDY

v.The STATE.

A23A1412

Court of Appeals of Georgia.

March 15, 2024

Brett Michael Adams, for Appellant.

John Herbert Cranford Jr., Newnan, John Clinton Winne, for Appellee.

Pipkin, Judge.

After a four-day trial, a jury found Appellant Demetris Kennedy guilty of three counts of possession of a firearm by a convicted felon, theft by receiving (stolen firearm), three counts of dog fighting, and one count of possession of marijuana with intent to distribute; the trial court merged the three counts of possession of a firearm by a convicted felon for the purposes of sentencing. Following a hearing, the trial court entered a detailed order denying Kennedy’s motion for new trial as amended. On appeal, Kennedy argues that the evidence presented at trial was insufficient to sustain his convictions, that the trial court wrongfully denied his motion to suppress, and that the trial court erred in admitting certain evidence seized as a result of the search at his trial. For the reasons that follow, we affirm.

[1] 1. Kennedy first argues that there was insufficient evidence to sustain his convictions for possession of marijuana with intent to distribute or for theft by receiving stolen property. We will address each argument in turn, keeping in mind that,

[w]hen evaluating the sufficiency of the evidence as a matter of constitutional due process, we must determine whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citation and punctuation omitted.) Monroe v. State, 315 Ga. 767, 768, 884 S.E.2d 906 (2023).

Viewed in this light, the evidence adduced at trial established as follows. In February 2019, a search warrant was executed at Kennedy’s residence in LaGrange, Georgia, During an initial sweep of the residence, law enforcement discovered, among other things, two firearms and ammunition in close proximity to tax documents bearing Kennedy’s name. Law enforcement would later discover a third firearm, a Kel-Tec rifle, along with body armor. A more in-depth search of the house revealed 334 grams -- nearly three-quarters of a pound -- of marijuana, approximately $3,000 in United States currency, digital scales, and "vacuum-sealed" plastic baggies; the jury learned that the baggies and scales were part of the drug trade. Consistent with this testimony, the jury was shown posts from Kennedy’s social media account that depicted him possessing and selling marijuana from the Lagrange residence.

Outside of the residence, law enforcement discovered a number of "pit-bull variety" dogs that were "all tethered or chained in place" in the yard of the residence. An expert testified that using chains to tether dogs is common with "fighting dogs" because it requires the dog to carry "the weight of that chain around on a daily basis … thereby strengthening not only its neck … but its front legs." The dogs discovered on the property were observed to have marks and injuries consistent with dog fighting.

A search of a shed in the backyard revealed a "treadmill" or a "carpet mill" that, the jury learned, is "commonly used to train fighting-style dogs." Likewise, law enforcement also found a "spring pole" in the shed, which is a "spring that’s connected to a small portion of rope, which is then connected to a chew toy." This device trains a dog to "keep its jaws locked so that it does not lose grip on what it has," it teaches the dog "the ability to breathe while biting," and it works to increase the strength of the dog's hind legs. Also found in the shed were syringes for medication administration and vaseline, which, an expert explained, "is many times used to cover existing injuries to dogs … to cover the scabs or wounds to keep them from bleeding, keep the wounds from breaking open." Consistent with this testimony, the jury was presented with evidence of social-media posts and messages involving dog fighting.

Regarding the Kel-Tec rifle found during the search, the jury learned that it had been reported stolen in January 2017. In jailhouse telephone conversations recorded between Kennedy and his then-girlfriend, Kennedy is heard discussing the stolen firearm and describing both where the Kel-Tec had been stashed and the bag in which it had been stored. While Kennedy told his then-girlfriend that a third party had placed the rifle in the crawl space, Kennedy also expressed doubt as to whether the firearm was operable and acknowledges that it is "dirty," a term understood to signify that a firearm is stolen. Finally, the State adduced evidence that Kennedy was, in fact, a convicted felon.

[2, 3] (a) We first turn to Kennedy’s argument that the evidence was insufficient to sustain his conviction for possession of marijuana with intent to distribute under OCGA § 16-13-30 (j). "[T]o support a conviction for this offense, the State must prove more than mere possession or intent for personal use. Instead, the evidence must show an intent to distribute." (Citations and punctuation omitted.) Patel v. State, 351 Ga. App. 580, 581, 831 S.E.2d 513 (2019). Here, the jury learned that law enforcement searching Kennedy’s residence discovered almost a pound of marijuana, zip-lock baggies, digital scales, and a large quantity of United States currency; further, the State adduced posts from Kennedy’s social media that depicted him possessing and selling marijuana from the Lagrange residence.

Kennedy argues, however, that OCGA § 2-23-3,¹ when read in conjunction with OCGA § 16-13-21,² required the State "to prove beyond a reasonable doubt that the alleged marijuana was in fact marijuana[ ] and not hemp or a low THC product." This argument fails for two reasons.

[4] First, while Kennedy argues -- without any citation to legal authority -- that he was entitled to rely on the law as it existed "at the time that [he] went to trial," the general principle is much the opposite: "a crime is to be construed and punished according to the provisions of the law existing at the time of its commission."³ Bryson v. State, 350 Ga. App. 206, 207 (2), 828 S.E.2d 450 (2019). Here, the indicted offenses were alleged to have occurred in February 2019, but the statutes on which Kennedy attempts to rely were not in effect until May 2019, see, e.g., OCGA § 2-23-1; thus, those provisions play no role in our evaluation of the sufficiency of the evidence here. See, e.g., Dunbar v. State, 363 Ga. App. 869, 872 n.1 (1), 873 S.E.2d 247 (2022) (evaluating sufficiency of evidence under the law existing at the time of the alleged offense).

[5] Even if this were not the case, we have recently explained that the Georgia Hemp Farming Act, OCGA § 2-23-1, "does not authorize making hemp available to individual consumers in a form that resembles raw marijuana." Gowen v. State, 360 Ga. App. 234, 238 (1), 860 S.E.2d 828 (2021). Likewise, it is well established that the State is not required to prove the THC level of marijuana. See Trujillo v. State, 286 Ga. App, 438, 439 (1) (a), 649 S.E.2d 573 (2007). See also C. W. v. Dept. of Human Svcs., 353 Ga. App. 360, 362, 836 S.E.2d 836 (2019) (explaining that "our law distinguishes marijuana from THC"). The evidence was plainly sufficient in this case, and this argument is without merit.

[6] (b) Kennedy also contends that the evidence was insufficient to sustain his conviction for theft by receiving stolen property for unlawfully receiving and retaining the Kel-Tec rifle. With respect to this offense, OCGA § 16-8-7 (a) provides that

[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposedof, or retained with intent to restore it to the owner. "Receiving" means acquiring possession or control or lending on the security of the property.

While "[p]roof of possession of the stolen property is not by itself sufficient to show the accused knew or should have known the property was stolen," McKinney v. State, 276 Ga. App. 75, 76, 622 S.E.2d 427 (2005), "knowledge sufficient to establish guilt may be inferred from possession in conjunction with other evidence of knowledge," Wells v. State, 268 Ga. App. 62, 62 (1), 601 S.E.2d 433 (2004).

[7, 8] Here, the Kel-Tec was found in the residence in which Kennedy was residing, and the jailhouse telephone calls reflect that Kennedy knew where the firearm was hidden, was able to describe the bag in which it was stored, had insight into the functionality of the firearm, and acknowledged that it was stolen. As we have explained before, and like the jury was instructed,

it was not necessary for the State to show how and when [the defendant] came to have possession, so long as there was sufficient evidence that he retained the [item] with guilty knowledge. Retention of stolen property which a person knows or should know is stolen without intent to restore it to the owner will sustain the conviction even where guilty knowledge at the time of the acquisition of the stolen property is not shown. After the fact knowledge will sustain a conviction.

(Citation and punctuation omitted.) Floyd v. State, 207 Ga. App. 275, 282 (2) (a), 427 S.E.2d 605 (1993). See also Reese v. State, 313 Ga. App. 746, 722 S.E.2d 441 (2012). Accordingly, the evidence is sufficient with respect to this offense, and this argument is without merit.

2. Prior to his trial, Kennedy moved to suppress the evidence seized during the search of his LaGrange residence. After conducting a hearing, the trial court denied the motion. Kennedy asserts two enumerations of error concerning the trial court’s denial of his motion to suppress. We address each in turn.

[9–11] "On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be...