Arellano v. State

• Decision Date: 09 January 2008
• Docket Number: No. A07A1782.,A07A1782.
• Citation: 289 Ga. App. 148,656 S.E.2d 264
• Parties: ARELLANO v. The STATE.
• Court: Georgia Court of Appeals

656 S.E.2d 264

289 Ga. App. 148

ARELLANO v. The STATE.

No. A07A1782.

Court of Appeals of Georgia.

January 9, 2008.

Sidney L. Storesund, for appellant.

Patrick H. Head, District Attorney, Ann B. Harris, Amelia G. Pray, Assistant District Attorneys, for appellee.

BARNES, Chief Judge.

A jury found Efrain Arellano guilty of trafficking in methamphetamine, operating a vehicle that lacked a valid license tag, and driving without a license. Arellano appeals, claiming that he received ineffective assistance of counsel at trial. For reasons that follow, we affirm.

Viewed favorably to the jury's verdict, the evidence shows that at approximately 7:20 a.m. on October 18, 2003, an officer with the Smyrna Police Department saw a car driving without a tag light and with taillights that were not visible within the required 500-foot distance. The officer pulled behind the vehicle, which changed lanes. When the officer again moved behind the car, it changed lanes a second time, raising the officer's suspicion.

Based on the tag light violation, the officer stopped the car and saw that the driver, whom he identified as Arellano, was alone in the vehicle. Arellano appeared nervous, was unable to sit still, and was constantly "looking around." Noting that the car had a drive-out tag without the required expiration date, the officer asked Arellano for the vehicle's paperwork, such as a bill of sale. Arellano indicated that he owned the car, but that he did not have any paperwork or a driver's license. He then produced an insurance card bearing someone else's name and admitted that the car belonged to that individual. He could not, however, provide any contact information for the owner. Using the vehicle identification number, the officer determined that the car had been issued a Georgia license tag that had expired the previous month.

The officer arrested Arellano for driving without a license and impounded the vehicle after inventorying its contents. During the inventory, the officer discovered that the car was equipped with a potentially illegal nitrous oxide system typically used for street racing. He looked into the car trunk both for purposes of the inventory and to find the nitrous oxide tanks. The officer did not locate any tanks in the trunk, but he found the expired license tag, as well as a speaker box with two compartments. Inside one compartment, the officer discovered a bag containing over 400 grams of methamphetamine with a street value of approximately $134,000.

At the time of the traffic stop, the drugs were wet, which is consistent with "freshly manufactured" methamphetamine. The State also presented evidence that drug traffickers sometimes use cars registered in another person's name to transport drugs.

On appeal, Arellano argues that his counsel provided him ineffective assistance at trial. To succeed in this claim, Arellano must "show both that counsel's performance was deficient and that but for this deficiency, there is a reasonable probability that the outcome of the trial would have been different." Patterson v. State, 272 Ga.App, 675, 679(5), 613 S.E.2d 200 (2005).

1. Arellano argues that counsel was ineffective in not moving for a directed verdict following the State's case. As discussed below, however, the evidence was sufficient to sustain the jury's verdict. And where the trial evidence is sufficient, counsel's failure to move for a directed verdict does not constitute deficient performance. See Patterson, 272 Ga.App. at 679(5)(b), 613 S.E.2d 200.

(a) Absent contrary evidence, "the driver of an automobile is presumed to have possession and control of drugs found in the vehicle." (Footnote omitted.) McGee. v. State, 287 Ga.App. 460, 461, 651 S.E.2d 546 (2007). Although evidence that other persons had equal access to the car or contraband may rebut this presumption, the equal access rule only applies when the defendant's control over the car constitutes the sole evidence of possession. See id. Moreover, the jury "must determine whether the equal access evidence sufficiently rebuts the presumption of possession." (Footnote omitted.) Id.

Noting that someone else owned the car containing the drugs, Arellano raised an equal access argument at trial. But the link between Arellano and the methamphetamine was not based solely on his operation of the vehicle.

For example, when the arresting officer first pulled behind the car, Arellano tried to avoid him. See Wilkerson v. State, 269 Ga. App. 190, 192-193(2), 603 S.E.2d 728 (2004) (speculation that others had equal access to car did not undermine conviction, particularly where defendant drove evasively when confronted by police). Furthermore, the methamphetamine was "fresh," indicating that it had not been in the car very long. And its significant street value undermined any claim that someone simply left it in the vehicle. See McGee, 287 Ga.App. at 462, 651 S.E.2d 546 (although defendant did not own car he was driving, other evidence—including that hidden cocaine had high street value and likely would not have been abandoned by someone else in car trunk—demonstrated connection between defendant and the contraband). Finally, Arellano was unusually nervous following the traffic stop. See Fernandez v. State, 275 Ga.App. 151, 155(2), 619 S.E.2d 821 (2005) (evidence that car occupants were extremely nervous following traffic stop supported inference of guilty knowledge regarding drugs hidden in car).

Given this evidence, the jury was authorized to reject Arellano's equal access claim and find that he knowingly possessed the methamphetamine. See McGee, supra; Fernandez, supra; Wilkerson, supra. Trial counsel, therefore, was not deficient in failing to move for a directed verdict on this count. See Patterson, 272 Ga.App. at 679(5)(b), 613 S.E.2d 200; OCGA § 16-13-31(e) (person who knowingly possesses more than 28 grams of methamphetamine commits the offense of trafficking).

(b) Arellano admittedly lacked a driver's license, and although the car was registered and had a license tag, the tag was expired. The jury, therefore, was authorized to find him guilty of driving without a license and operating a vehicle without a valid license tag. See OCGA §§ 40-5-20 (prohibiting driving without a valid license); 40-2-8(b)(2)(A) ("It shall be a misdemeanor to operate any vehicle required to be registered in the State of Georgia without a valid numbered license plate properly validated.").

Arellano suggests, apparently based on the drive-out tag affixed to the car, that the vehicle was newly purchased and thus fell within the initial 30-day registration period during which a numbered license plate is not required. See OCGA § 40-2-8(3)(2)(A) (purchaser of new or used car may operate vehicle without numbered license plate during 30-day registration period provided in OCGA § 40-2-20(a)(1)(B)(i) and OCGA § 40-2-21(a)(.1)). But the drive-out tag itself lacked an expiration date and thus was invalid. See OCGA § 40-2-8(b)(2)(A), (b)(2)(B)(i). Compare Brackins v. State, 249 Ga.App. 788, 789(1), 549 S.E.2d 775 (2001) (reversing conviction for driving without a proper license tag because State failed to offer evidence that the drive-out tag on the car was invalid).

Moreover, based on the evidence presented—including that the drive-out tag was improper, that Arellano produced no paperwork during the traffic stop suggesting that the car had recently been purchased, that an expired tag was associated with the vehicle's identification number, and that the arresting officer located the expired tag in the car trunk—the jury was authorized to conclude that Arellano was driving a car without a valid tag, rather than a newly purchased vehicle. Accordingly, we find no deficiency in trial counsel's failure to move for a directed verdict. See Patterson, 272 Ga.App. at 679(5)(b), 613 S.E.2d 200.

2. Arellano claims that counsel should have requested a judgment notwithstanding the guilty verdict as to the license tag violation. Georgia law, however, does not authorize a motion for judgment notwithstanding the verdict in criminal cases. See Moody v. State, 272 Ga. 55, 56, n. 2, 525 S.E.2d 360 (2000). Counsel's failure to make such a motion, therefore, cannot support an ineffective assistance claim. See Winfrey v. State, 286 Ga.App. 718, 724(6)(a), 650 S.E.2d 262 (2007) ("`A trial attorney's failure to make a meritless or futile motion does not provide a basis for finding that the defendant received ineffective assistance of counsel.'") (citation omitted).

3. At trial, the defense theory focused on Arellano's claimed lack of knowledge about the drugs in the trunk. Arellano now argues that trial counsel should have investigated and pursued other defenses. But "[c]ounsel's decision as to which theory of defense to pursue is a matter of strategy and tactics;, and, as a general rule, matters of tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of c...