Vega v. State

321 Ga.App. 682

742 S.E.2d 499

VEGA

v.The STATE.

No. A13A0673.

Court of Appeals of Georgia.

April 30, 2013.

Lawrence W. Daniel, for Appellant.

David McDade, Dist. Atty., Emily Kathleen Richardson, James Alan Dooley, Asst. Dist. Attys., for Appellee.

RAY, Judge.

A jury convicted Jose Vega of trafficking in cocaine in violation of OCGA § 16–13–31(a)(1).¹ Vega appeals the denial of his amended motion for new trial, contending that the evidence was insufficient to support his conviction. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant is no longer entitled to a presumption of innocence. We neither weigh the evidence nor judge the credibility of the witnesses, but determine only 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).

(Citation omitted.) Clark v. State, 319 Ga.App. 880, 738 S.E.2d 704 (2013).

Viewed in the light most favorable to the verdict, the evidence shows that on November 9, 2009, a Georgia State Patrol officer working with a federal program called High Intensity Drug Trafficking Area was patrolling Interstate 20 when he received a Be On the Lookout (“BOLO”) for a gray Volkswagen Passat station wagon traveling eastbound toward Atlanta. After spotting the vehicle, independent of what he had learned from the BOLO, he saw that the vehicle appeared to have a window tint violation. He stopped the vehicle and told Vega, the driver and sole occupant, that he had stopped him for a window tint violation. Vega indicated that he understood, but the officer testified that Vega “was nervous. You could see the artery in his neck pulsing, carotid artery, which is a sign of intense nervousness.” The officer asked Vega to step out of his car so they could talk. The officer told Vega he was just going to issue a warning, but Vega's nervousness did not subside. Vega, who had a Texas driver's license, told the officer he was coming to visit his girlfriend in Atlanta for the first time, that he was spending a week there, and that he was driving her car. The officer noticed that the vehicle contained at least four air fresheners; that despite Vega's statement that he was on a week-long visit, he had no luggage; and that there was only a single key in the ignition, rather than a key ring also holding house or apartment keys. When asked about how he got his girlfriend's car and about his lack of luggage, Vega then changed his story and told the officer he already had been at his girlfriend's house for a week, had left his luggage there, and was returning from a trip to Alabama to visit a friend. The officer testified that based on his interdiction training, these factors could be indicators of drug activity. The officer then asked to search Vega's car, and Vega gave his consent orally and also signed a consent to search form. The officer saw that the covers to the seat brackets were scratched and broken, and that the screws fastening the seats to the vehicle frame had abnormal wear, indicating that the seats had been removed multiple times. He also noted that the carpet had been glued to the floorboards in a manner not followed by automobile manufacturers. The search revealed a hidden panel underneath the carpet where the officer found duct-taped packages containing a white powdery substance. After testing, the substance was determined to be 975.76 grams of cocaine with a purity greater than 10 percent.

Vega argues that the evidence was insufficient to sustain his conviction because there was no direct evidence showing he knew that the cocaine was secreted in the hidden compartment. He contends that a finding of constructive possession may not rest only upon a defendant's spatial proximity to contraband, but that there must be some slight evidence of access, power, and intention to exercise control or dominion over the contraband. See Feliciano v. State, 302 Ga.App. 328, 330–331, 690 S.E.2d 680 (2010). This slight evidence, he argues, was lacking in the instant case. We disagree.

The evidence that Vega was the driver of the car gave rise to a rebuttable presumption that he had possession and control of the cocaine found in the car. Sabb v. State, 317 Ga.App. 537, 539, 731 S.E.2d 399 (2012). In order to rebut this presumption, Vega needed to present evidence that other people had equal access to the vehicle and the contraband. Id.

[I]f the only evidence of possession of contraband found in an automobile is that the defendant is the driver of the vehicle, and there is evidence of prior use of the vehicle by other parties in the recent past, or equal access to the accessible portions of the vehicle by other parties, then the prior possession or equal access rule would demand an acquittal. However, if there is additional evidence of possession of contraband by the accused—either circumstantial or direct, other than mere use of the vehicle, then an issue is made for the jury.

(Citation, footnote and punctuation omitted.) Pincherli v. State, 295 Ga.App. 408, 410(1), 671 S.E.2d 891 (2008).

Vega presented no evidence at trial. Also, there was additional evidence of Vega's guilt. “A defendant's power to exercise control over the drugs may be inferred from access to the drugs, while the matter of intent may be derived from the surrounding circumstances.” (Citation omitted.) Sabb, supra at 540, 731 S.E.2d 399. Here, the evidence showed that Vega was the driver of the vehicle. No evidence of recent access by any other person was presented. Further, Vega's demeanor in showing extreme nervousness, “along with [his] inconsistent responses to...