Mcneal v. State

326 Ga.App. 429

756 S.E.2d 660

McNEAL

v.The STATE.

No. A13A1925.

Court of Appeals of Georgia.

March 21, 2014.

William Allen Adams, Jr., for Appellant.

Scott L. Ballard, Dist. Atty., Robert Wright Smith, Jr., Asst. Dist. Atty., for Appellee.

MILLER, Judge.

Following a jury trial, Stevie Latawn McNeal was convicted of trafficking in cocaine (OCGA § 16–13–31(a)); possession of marijuana with intent to distribute (OCGA § 16–13–30(j)); obstruction of an officer (OCGA § 16–10–24(a)); and failure to maintain lane (OCGA § 40–6–48). McNeal appeals from the denial of his motion for new trial, contending that the evidence is insufficient to support his drug convictions; the trial court erred in instructing the jury; and his trial counsel was ineffective. We discern no harmful error and affirm.

On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict and [the defendant] no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence to support a conviction, 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. Jackson v. Virginia [, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ].

(Citation, punctuation and footnotes omitted.) White v. State, 295 Ga.App. 366, 671 S.E.2d 851 (2008).

So viewed, the evidence was that, on February 13, 2006, a Spalding County sheriff's corporal, who was a supervisor in the narcotics unit, special operations, was patrolling Interstate 75 southbound when he observed a tan Ford F–150 crossing the fog line ¹ several times. The corporal and his partner conducted a traffic stop and found McNeal driving and Lamont Walters ² in the passenger seat of the truck. When the corporal first walked up to the passenger window, he smelled the overwhelming odor of marijuana coming from inside the truck. He asked McNeal for his driver's license, which McNeal provided. As McNeal handed the license to him, the corporal noticed that McNeal's hand was trembling, Walters was breathing heavily, and the corporal could see a visible pulse in Walters's neck. McNeal got out of the truck at the corporal's request and moved to the rear. The corporal observed McNeal's eyes were bloodshot and glassy. The corporal asked McNeal whose truck it was and McNeal responded that it was a rental. Asked who his passenger was, McNeal responded “Marcus,” but could not tell the corporal his last name. When asked if Walters had the rental papers, McNeal called to him and Walters began to get out of the truck. The corporal told Walters to stay in the truck and asked for the rental agreement. As Walters was getting the agreement, the corporal saw in plain view what he believed to be pieces of marijuana or marijuana residue on the front floorboard of the truck. The corporal picked up the piece closest to the passenger door jamb and, in his opinion, it was marijuana. The corporal then asked Walters to get out of the truck and for some identification. As Walters was getting identification from his wallet, the corporal saw two stacks of $100 bills wrapped in plastic, ³ which the corporal considered highly suspicious.

At this point, the corporal began to search the truck. In the middle of the back seat, he observed something large covered by two jackets. Lifting the jackets, the corporal saw a large dark plastic bag. He put his hand on the bag and immediately recognized the contents as suspected marijuana. The corporal went to McNeal and started to place him under arrest. McNeal attempted to break away and ran toward the driver's side of the truck. After wrestling with McNeal, the corporal pulled his Taser and told McNeal if he did not quit fighting, he was either going to tase him or release his patrol dog on him. McNeal then got down on the ground, and the corporal handcuffed him while his partner handcuffed Walters.

After securing the two men, the corporal returned to the truck and opened the black plastic bag in the back seat. He found eight one-gallon ziplock bags containing marijuana, along with several sandwich size bags of marijuana. The corporal also recovered two more plastic baggies of marijuana from a shopping bag. The marijuana had a total weight of 9.75 pounds. Behind the driver's seat on the floorboard, the corporal found a tan leather bag similar to a bowling bag. Inside the leather bag, the corporal found a large brick, wrapped in two plastic bags, which proved to be a kilogram (2.2 pounds) of 75.6 % pure powder cocaine. In one of the jackets from the back seat, which was claimed by Walters, the corporal found a small bag of marijuana. While the officers and the two men were waiting for transport, Walters asked, if he claimed all the “dope,” would they let McNeal go. The corporal responded negatively and cautioned Walters about any statements he made because the corporal had not yet advised the men of their rights.

1. In his first two enumerations, McNeal argues that the circumstantial evidence was insufficient to support his convictionsof possession of marijuana with intent to distribute and trafficking in cocaine and the State failed to exclude the reasonable hypothesis that the drugs were solely possessed by Walters. We disagree.

[T]he law recognizes that possession can be actual or constructive, sole or joint.... A person has actual possession of a thing if he knowingly has direct physical control of it at a given time. 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. If one person alone has actual or constructive possession of a thing, possession is sole, but if two or more persons share actual or constructive possession of a thing, possession is joint.

(Citation and punctuation omitted.) Holiman v. State, 313 Ga.App. 76, 78(1), 720 S.E.2d 363 (2011). See also Maddox v. State, 322 Ga.App. 811, 811–814(1), 746 S.E.2d 280 (2013) (Maddox, who was front seat passenger in car owned by another, found in constructive possession of cocaine in console between passenger and driver's seats when no one was in driver's seat, back seat passengers could not easily access console, and Maddox had bundles of cash on his person).

In this case, both McNeal and Walters were charged with trafficking in cocaine and possession of marijuana with intent to distribute. Therefore, the State was not required to show that McNeal was in sole constructive possession of the cocaine and marijuana, but rather that McNeal and Walters were in joint constructive possession of the drugs.

“A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Mere presence without proof of participation is insufficient.” (Citation omitted.) Vines v. State, 296 Ga.App. 543, 545, 675 S.E.2d 260 (2009). Here, McNeal and Walters were the only two people traveling in a rented truck which smelled strongly of marijuana; there were pieces of marijuana on the front floorboard of the truck; and McNeal's eyes were bloodshot and glassy. Both men were extremely nervous when the corporal walked up to the truck. Walters was carrying $2,400 in cash in two plastic wrapped stacks of $100 dollar bills. Two jackets covered the large bag of marijuana in the rear seat and the leather bag containing the cocaine was directly behind McNeal on the rear floorboard. When asked his passenger's name, McNeal gave an incorrect first name and could not give a last name. Also, when the corporal attempted to arrest McNeal, he fled.⁴

Here, McNeal's “presence, companionship, and conduct before and after the offenses are circumstances from which his participation in the criminal intent may be inferred.” (Citation and punctuation omitted.) Jackson v. State, 314 Ga.App. 272, 275(1)(a), 724 S.E.2d 9 (2012). We find the evidence legally sufficient. See Clowers v. State, 324 Ga.App. 264, 266(2)(a), 750 S.E.2d 169 (2013) (driver of SUV who backed into parking space beside undercover officers during a controlled buy, sat in the SUV while passenger exited SUV and sold gallon sized bag containing marijuana to undercover officer, then driver fled when officers attempted to arrest him, driver found guilty of possession of marijuana with intent to distribute).

In order to support a conviction, such circumstantial evidence does not have to exclude every possible hypothesis other than the defendant's guilt, but only reasonable hypotheses. Whether a hypothesis is reasonable is a question for the jury, and such finding will not be disturbed on appeal unless the guilty verdict is insupportable as a matter of law.

(Punctuation omitted; emphasis in original.) Able v. State, 312 Ga.App. 252, 254(1), 718 S.E.2d 96 (2011).

2. In his third enumeration, McNeal contends that the trial court erred by instructing the jury on the permissive presumption of possession against him as the driver of the vehicle, where there was clear evidence of equal access and the passenger/co-defendant requested the charge. In his fifth enumeration, McNeal also argues that, if the permissive presumption charge were appropriately given, the trial court erred by failing to charge equal access also. They are addressed together.

As an initial matter, the record shows that McNeal never objected to the trial court's charge. Where no objection is made to a jury charge at trial, “appellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions.” (Footnote omitted.) State v. Kelly, 290 Ga. 29, 32(1), 718 S.E.2d 232 (2011).

The “plain error” test adopted by this Court in [ Kelly ] authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the...