Blair v. State

• Decision Date: 08 March 1995
• Docket Number: No. A94A2749,A94A2749
• Citation: 455 S.E.2d 97,216 Ga.App. 545
• Parties: BLAIR v. The STATE.
• Court: Georgia Court of Appeals

Page 97

455 S.E.2d 97

216 Ga.App. 545

BLAIR v. The STATE.

No. A94A2749.

Court of Appeals of Georgia.

March 8, 1995.

Sandy E. Scott, Marietta, for appellant.

Benjamin F. Smith, Jr., Sol., Barry E. Morgan, Chief Asst. Sol., Cindi Yeager, Asst. Sol., Marietta, for appellee.

BEASLEY, Chief Judge.

At a bench trial, Blair was convicted of loitering and prowling, OCGA § 16-11-36, and possession of less than one ounce of marijuana. OCGA § 16-13-2(b).

Cobb County Police Sergeant Carter testified that she was doing a security check of an industrial park at night when no businesses in the park were open. The area is patrolled frequently, because stolen cars are found there on occasion and juveniles gather there.

On the night in question, Carter observed a car with the lights out in the parking lot, where authorized vehicles do not remain at night. It was occupied by Carnes in the driver's seat and Blair in the passenger seat. When the officer approached the car, she smelled the odor of burning marijuana. She asked Carnes what they were doing there, and he stated they had been to a movie and had parked to try to decide what to do next.

Carter returned to her patrol car to request another police car. After Officer Sullivan arrived, both officers approached the car in which Carnes and Blair were seated. Sergeant Carter asked Carnes to step out of the car and asked what he and Blair were doing. He admitted they were smoking marijuana and both were arrested.

She then asked Carnes if he had any more marijuana in the car. He said he did, and she found it after he told her it was in a black bag behind the passenger seat. Officer Sullivan also found a baggie with marijuana under the passenger seat. A water pipe was found between the passenger seat and the door, and what appeared to be its bowl was found on the dash.

Although Sergeant Carter did not speak to Blair, she observed his face to be flushed, his eyes to be extremely glassy, and his appearance to be intoxicated or under the influence of drugs. She is specifically trained in marijuana detection. Officer Sullivan, who is trained in drug identification, testified that Blair had the odor of marijuana about him and that his eyes were very glassy and bloodshot, as though he had been smoking marijuana.

Sergeant Carter seized the green leafy material in the bags and the suspected marijuana pipes. The material tested positive for marijuana, but the other items were not tested.

Blair testified that his eyes were red because his contact lenses were irritated by the marijuana smoke. He maintained that only Carnes was smoking the marijuana and that he, Blair, was not participating. He admitted that he placed the pipe next to the passenger door after Carnes handed it to him.

1. Blair contends that the trial court erred in overruling his motion for directed verdict of acquittal and finding him guilty of possession of marijuana. There is no verdict in a bench trial; the issue is whether the evidence met the test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In the Interest of L.D.H., 213 Ga.App. 297, 298(2), 444 S.E.2d 387 (1994).

In applying the test, we take into account OCGA § 24-4-6. It prohibits a conviction on circumstantial evidence unless the proved facts are not only consistent with the hypothesis of guilt, but exclude every other reasonable hypothesis save that of the guilt of the accused.

" 'This does not mean that the state must exclude every possible hypothesis showing innocence, but any reasonable hypothesis showing innocence.' [Cit.] [Emphasis in original.] 'Where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the [factfinder].' [Cit.] Because the [factfinder] has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court. Thus, this court will not disturb its finding unless the verdict is insupportable as a matter of law. [Cits.] If the totality of the evidence is sufficient to connect defendant to possession of drugs, even though there is evidence to authorize a contrary finding, the [conviction] will be sustained. [Cits.]" Singleton v. State, 194 Ga.App. 5, 6, 389 S.E.2d 496 (1989); see Johnston v. State, 178 Ga.App. 219, 220(1), 342 S.E.2d 706 (1986); Russell v. State, 174 Ga.App. 436, 437(1), 330 S.E.2d 175 (1985).

It was a...