Benton v. State

• Citation: 847 S.E.2d 625,356 Ga.App. 441
• Decision Date: 21 August 2020
• Docket Number: A20A1142
• Parties: BENTON v. The STATE.
• Court: United States Court of Appeals (Georgia)

356 Ga.App. 441

847 S.E.2d 625

BENTON

v.The STATE.

A20A1142

Court of Appeals of Georgia.

August 21, 2020

Cara Clark, for Appellant.

Samuel H. Altman, Courtney McGowan Patterson, for Appellee.

Brown, Judge.

Following a jury trial, Robert Benton, Jr. was convicted of possession of methamphetamine, possession of methamphetamine with intent to distribute, possession of marijuana (less than one ounce), and possession of a firearm by a convicted felon.¹ Benton appeals the denial of his motion for new trial, contending that insufficient evidence supports his conviction for possession of methamphetamine with intent to distribute and that his sentence exceeds the statutory maximum sentence. We affirm.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Citation omitted; emphasis in original.) Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.

(Citations and punctuation omitted.) Driscoll v. State , 295 Ga. App. 5, 5-6 (1), 670 S.E.2d 824 (2008). So viewed, the record shows that law enforcement and paramedics responded to an emergency services call at the home of Benton's girlfriend to resuscitate the girlfriend's four-month-old child. The child was taken to the emergency room, but could not be revived. Law enforcement began a death investigation and obtained a search warrant for the girlfriend's home. During the search, they found a handgun, methamphetamine, scales, pipes, lighters, butane, brand new small plastic baggies, and marijuana. Officers testified that the drug paraphernalia found in the home was consistent with both drug use and drug selling. At the scene, Benton told a police officer that the handgun found in the home belonged to him. He also stated that he was living at the home and that he used methamphetamine. After patting down Benton, the police found $1,021 in cash in his wallet, which an officer testified was consistent with selling drugs. During an interview after her arrest, Benton's girlfriend told the police that she had known Benton for approximately ten years and had known him to sell methamphetamine that entire time. She also stated that she had seen Benton sell methamphetamine 20-25 times from her home and that she and Benton traveled to Atlanta every 2-3 days to purchase large quantities of methamphetamine. At trial, the girlfriend testified that Benton did not use methamphetamine the night before the child died; that she had not seen Benton sell drugs; and that she had lied to police because she was distraught over the condition of her child and decided to "throw [Benton under the bus] before he could throw [her]." The girlfriend also testified that she and her friend had brought the methamphetamine into the home, that it belonged to her, and that the friend had brought the baggies and scales to the home, which the girlfriend placed under a table while Benton was in the shower. A neighbor testified that he had smoked methamphetamine with Benton and the girlfriend the night before the child died, but had never seen either of them sell drugs.

1. On appeal, Benton argues that there was insufficient evidence to support his conviction for possession of methamphetamine with intent to distribute. In this regard, he contends that (a) the drug investigator's testimony that Benton was involved in distribution of methamphetamine was insufficient because the investigator was not tendered as an expert; (b) his girlfriend's prior inconsistent statement that she had sold methamphetamine with Benton in the past was not corroborated; and (c) the State failed to exclude every reasonable hypothesis other than guilt. We disagree.

(a) Testimony of drug investigator. "To support a conviction for possession with intent to distribute, OCGA § 16-13-30 (b), the [S]tate is required to prove more than mere possession." (Citation and punctuation omitted.)

Driscoll , 295 Ga. App. at 7 (1) (a), 670 S.E.2d 824. "However, no bright line rule exists regarding the amount or type of evidence sufficient to support a conviction for possession with intent to distribute." (Citation and punctuation omitted.) Jones v. State , 304 Ga. App. 109, 111 (1) (a), 695 S.E.2d 665 (2010). "[T]he State may show intent to distribute in many ways, including expert testimony that the amount of contraband possessed was inconsistent with personal use, evidence showing the manner of packaging, and the possession of certain amounts or denominations of currency." (Citation and punctuation omitted.) Id. See also Daniels v. State , 278 Ga. App. 263, 266 (2), 628 S.E.2d 684 (2006).

Pretermitting whether Benton waived this claim on appeal by failing to timely object at trial to the State's alleged failure to lay an adequate foundation for the investigator's opinion testimony, see Haywood v. State , 301 Ga. App. 717, 719 (1), 689 S.E.2d 82 (2009), the argument is meritless. "[E]ven if not formally admitted as an expert, a police officer may give [an] opinion as to whether the amount or value of the contraband is consistent with distribution, if the State lays a foundation for the opinion by eliciting testimony about the officer's experience and training in drug enforcement." (Citation and punctuation omitted.) Jones , 304 Ga. App. at 111 (1) (a), 695 S.E.2d 665. Here, the investigator testified that he had been employed with the drug task force for seven years, and had been through drug classes, methamphetamine lab classes, and "numerous drug-related courses." He also testified that he comes into contact with drug activity on a daily basis and has been involved in "countless" drug investigations. The State laid the foundation for the investigator's expert testimony, and his opinion provided sufficient evidence from which a jury could infer that Benton intended to sell the methamphetamine found in the home. See, e.g., Hughes v. State , 297 Ga. App. 217, 218, 676 S.E.2d 852 (2009).

(b) Girlfriend's prior inconsistent statement. Benton contends that his girlfriend's statement to the police that he was selling methamphetamine was uncorroborated and, therefore, insufficient to support his conviction. "The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including ... felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness...." OCGA § 24-14-8.² "[S]ufficient corroboration of accomplice testimony requires only slight evidence ... so long as it is independent of the accomplice's testimony and directly connects the defendant to the crime or leads to the inference of guilt. The sufficiency of the corroboration is a matter for the jury to decide." (Citation and punctuation omitted.) Raines v. State , 304 Ga. 582, 588 (2) (a), 820 S.E.2d 679 (2018). Here, the girlfriend's statement to police that Benton was selling methamphetamine was corroborated by more than slight evidence. Benton admitted to police that the handgun found at the home belonged to him; police discovered $1,021 in cash on his person; and the investigator testified that these items, coupled with the drug paraphernalia found in the home where Benton had been living, were consistent with somebody who was selling drugs. The evidence was sufficient for the jury to find Benton guilty of possession of methamphetamine with intent to distribute. See, e.g., Watkins v. State , 253 Ga. App. 382, 385 (3), 559 S.E.2d 133 (2002). See Hughes , 297 Ga. App. at 218, 676 S.E.2d 852 ("the issue of intent is peculiarly a question of fact for jury determination").

(c) State failed to exclude every reasonable hypothesis other than guilt. We likewise reject Benton's assertion that the State failed to exclude every reasonable hypothesis except his guilt. "To support a verdict,...