Sabb v. State

317 Ga.App. 537

731 S.E.2d 399

SABB

v.The STATE.

No. A12A0904.

Court of Appeals of Georgia.

Aug. 30, 2012.

William H. Sheppard, for appellant.

Daniel J. Porter, Dist. Atty., Marlene Shari Zekser, Asst. Dist. Atty., for appellee.

MILLER, Judge.

Following a jury trial, Alicia Veleka Sabb was convicted of trafficking in cocaine ( OCGA § 16–13–31(a)(1) ).¹ Sabb filed a motion for new trial, which the trial court denied. On appeal, Sabb contends that the evidence was insufficient to sustain the drug trafficking conviction. We disagree and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(Punctuation omitted.) Johnson v. State, 279 Ga.App. 98, 99, 630 S.E.2d 612 (2006).

So viewed, the trial evidence showed that on the evening of January 3, 2010, an officer with the Gwinnett County Highway Interdiction Team initiated a traffic stop of a car driven by Sabb and occupied by her co-defendant boyfriend. Upon approaching, the officer smelled the odor of burnt marijuana emanating from inside the car. Sabb and her co-defendant avoided eye contact with the officer and gave inconsistent responses to the officer's inquiries as to their destination. When the officer asked Sabb for the co-defendant passenger's name, Sabb misinformed the officer of the co-defendant's last name. The officer observed that Sabb's co-defendant was extremely nervous, visibly shaking, and sweating heavily although it was very cold that night.

While the officer continued to engage in procedures related to the stop, Sabb exited the car and went with the officer to his patrol car. The officer explained that he had smelled marijuana inside the car and requested Sabb's permission to search the car for narcotics. Sabb gave the officer consent for the search.

A backup officer arrived at the scene to assist with the search. The backup officer observed that Sabb's co-defendant was sweating profusely "as if he had been running a marathon" and avoided eye contact by looking straight ahead. Sabb's co-defendant was asked to step out of the car so that the search could proceed. As the co-defendant exited the car, the officers observed a broken, white rock substance in the passenger seat and white powder on the co-defendant's hands. Based upon the officers' training and experience, they suspected that the substance was cocaine.

During the search of the car, the officers also found a large quantity of the white powder substance in a clear plastic bag that was between the driver and the front passenger seats. The officers testified that there was no center console or discernible space between the seats, and the bag was in plain view between the seats. The officers also testified that they did not observe Sabb or her co-defendant making any furtive movements at the time of the stop, and therefore, the bag must have been present between the seats prior to the stop. In addition to finding the bag of suspected cocaine, the officers found a small marijuana blunt inside the car's ashtray and a bag of marijuana inside Sabb's purse.

The bag containing the suspected drug substance was delivered to the GBI state crime lab for testing. The test results revealed that the substance was cocaine weighing approximately 44.78 grams, with a purity of 14.4%.

The evidence further reflected that the car had been rented in Sabb's name on December 29, 2009, and should have been returned on December 30, 2009, but Sabb still had possession of the car at the time of the stop on January 3, 2010. Sabb's co-defendant testified that although Sabb had her own personal vehicle, she had obtained the rental car pursuant to his request. Sabb's co-defendant also stated that he had never used the rental car without Sabb being present in the car with him. The officer testified that rental cars are commonly used in drug trafficking because they are usually nondescript, blend in with other vehicles on the roadway, and are not subject to forfeiture and seizure if the perpetrators are caught with drugs in the car.

Sabb and her co-defendant were jointly charged, tried, and convicted of the cocaine trafficking offense. Sabb contends that the evidence was insufficient to support her conviction. Her contention is without merit.

OCGA § 16–13–31(a)(1) pertinently prescribes that "[a]ny person ... who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, as described in Schedule II, ... commits the felony offense of trafficking in cocaine[.]"

Possession of contraband may be actual or constructive. Moreover, joint constructive possession with another will sustain a conviction for possession of contraband. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. 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. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.

(Citation and punctuation omitted.) Cochran v. State, 300 Ga.App. 92, 94(1)(a), 684 S.E.2d 136 (2009). Here, Sabb and her co-defendant passenger were both charged with the cocaine trafficking offense. Consequently, the State could establish the element of possession by showing that Sabb and her co-defendant were in joint constructive possession of the cocaine found in the car. See id. at 94–95(1)(a), 684 S.E.2d 136.

Evidence that Sabb was the driver of the car gave rise to a rebuttable presumption that she exercised possession and control of the drug contraband found inside the car. See Ramirez v. State, 290 Ga.App. 3, 4(1), 658 S.E.2d 790 (2008). Sabb nevertheless claims that the car was rented and others may have had equal access to the car. Her claim, however, is unavailing.

It is true ... that the presumption of possession flowing from a defendant's status as driver of a vehicle may be rebutted if the driver presents evidence that other persons had equal access to the vehicle and contraband. Notably, however, the equal access rule does not apply to eliminate the presumption of possession where all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of the contraband.

(Citations and punctuation omitted.) Id. at 4(1),...