Brooks v. State

• Decision Date: 25 November 1992
• Docket Number: A92A1932,Nos. A92A1931,s. A92A1931
• Citation: 206 Ga.App. 485,425 S.E.2d 911
• Parties: BROOKS v. The STATE. The STATE v. BROOKS.
• Court: Georgia Court of Appeals

Page 911

425 S.E.2d 911

206 Ga.App. 485

BROOKS v. The STATE.

The STATE v. BROOKS.

Nos. A92A1931, A92A1932.

Court of Appeals of Georgia.

Nov. 25, 1992.

George, Trammell & Bartles, William P. Bartles, Jackson, for appellant.

Joseph H. Briley, Dist. Atty., Gary C. McCorvey, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

In Case No. A92A1931, defendant Brooks appeals his conviction of the offenses of violating the Georgia Controlled Substances Act (possession of cocaine with intent to distribute) and of obstruction of a law enforcement officer. The State appeals from the trial court's ruling concerning the admissibility of certain evidence in Case No. A92A1932. Held:

1. Defendant's first enumeration of error questions the sufficiency of the evidence to authorize his conviction of possession of cocaine with intent to distribute. The evidence at trial, stated in the light most favorable to upholding the conviction shows that police were dispatched in response to a telephone report that Lucious Boswell was attempting to sell drugs at a certain location. Boswell was approached by officers and consented to a search of his person. When nothing was found on his person, Boswell was permitted to leave. Nonetheless, Boswell was subsequently prosecuted and pleaded guilty to possession of cocaine with intent to distribute.

While the police had been searching Boswell, defendant was standing nearby and engaged in conduct which the police characterized as "fat-mouthing" or "sticking your mouth in someone else's conversation," and described as defendant saying to Boswell " 'They don't have a warrant. You don't have to do this.' Just constantly like a heckler does a comedian on stage." After Boswell was permitted to leave, the police officers turned their attention to defendant who began to walk away. Police officers requested and then ordered defendant to remain but he continued to walk away. Finally, one of the officers blocked defendant's path and was cursed by the defendant. When defendant attempted to walk over the officer, several additional officers joined in restraining defendant. There were no drugs found on defendant, but he did have $346.38 on his person.

A cousin of one of the officers pointed out cocaine hidden in a cactus bush. The uncontroverted evidence was that Boswell had placed the cocaine there. No evidence was introduced suggesting that defendant had ever been in actual physical possession of the cocaine. The State's theory was that Boswell and defendant were working together to market the cocaine, with Boswell holding the cocaine and defendant holding the money. Testimony was presented that such a team approach to selling cocaine is common.

The State also presented evidence that defendant was wearing two pairs of pants, that most of the money in his possession was in the pocket of the inside pants while only a few dollars were in the outside pair, and that this practice is not uncommon among people selling drugs on the street. Similar transaction evidence was also admitted which showed defendant's bent of mind towards making street sales of cocaine. The State's evidence also established that defendant stood near the cactus bush containing the cocaine during the time that police were searching Boswell and until he attempted to leave the scene.

"Possession sufficient to sustain a conviction for possession with the intent to distribute can be actual or constructive. Walton v. State, 194 Ga.App. 490 (390 SE2d 896) (1990). ' "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." ' Allen v. State, 191 Ga.App. 623, 624(2) (382 SE2d 690) (1989)." Shropshire v. State, 201 Ga.App. 421, 422, 411 S.E.2d 339.

The issue is whether the circumstantial evidence presented at trial was sufficient to establish beyond a reasonable doubt that defendant had at least joint constructive possession of the cocaine found in the bush. "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." OCGA § 24-4-6. The burden to present evidence excluding every other reasonable hypothesis save that of guilt is upon the State. Cornish v. State, 187 Ga.App. 140, 142, 369 S.E.2d 515.

" 'When the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant's guilt beyond a reasonable doubt.' [Cit.]" Kreager v. State, 148 Ga.App. 548, 252 S.E.2d 1. While the determination of whether the circumstances are sufficient to exclude every reasonable hypothesis except that of defendant's guilt is usually made by the jury and while we must review the evidence in the light most favorable to the jury verdict, we must not be blinded by that verdict when a reasonable hypothesis of innocence appears from the evidence or lack thereof, and may declare such as a matter of law. Solomon v. State, 195 Ga.App. 684(1), 688, 394 S.E.2d 570; Atchison v. State, 181 Ga.App. 351, 352, 352 S.E.2d 201; Muckle v. State, 165 Ga.App. 873(1), 875, 303 S.E.2d 54; Smith v. State, 56 Ga.App. 384, 387, 192 S.E. 647.

In the case sub judice, the evidence fails to exclude several reasonable alternative hypotheses consistent with defendant's innocence of the charge of possession of cocaine with intent to distribute. The State's evidence while showing defendant's predisposition towards selling cocaine and even that he was dressed in a fashion common to street vendors of illicit substances, nonetheless failed to establish anything more than speculation as to a possible conspiracy with Boswell. While Boswell and defendant knew each other, had been seen together in the past, and both may have been drug dealers, the supposition that the two were acting in concert to sell cocaine is little more than speculation. The evidence is equally consistent with the hypothesis that any such activities by defendant were entirely independent of those of Boswell. Thus, the State failed to prove that defendant was in joint constructive possession of the cocaine which Boswell hid in or near the cactus bush. It follows that the jury was not authorized by the evidence to return a verdict finding defendant guilty of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Ridgeway v. State, 187 Ga.App. 381, 370 S.E.2d 216; Cornish v. State, 187 Ga.App. 140, 369 S.E.2d 515, supra.

2. Defendant also questions the sufficiency of the evidence to authorize his conviction of the offense of obstruction of a law enforcement officer. The indictment alleges that defendant obstructed Officer Pusateri by resisting arrest. Officer Pusateri testified that Sergeant Jones asked him to stop defendant. Defendant turned and walked away, and continued walking after the first time Officer Pusateri asked him to stop, pausing only to curse at the officer. Officer Pusateri ran around defendant so as to place himself in defendant's path and raised his arm and asked defendant to stop. Defendant continued walking into Officer Pusateri and tried to push through him. Defendant was then overpowered by several police officers.

Since it is clear that Officer Pusateri's actions in stopping defendant were predicated entirely on the instructions from his superior, we must look to the knowledge of Sergeant Jones at the time he issued those instructions to determine whether the police had authority to seize defendant. We also note that a seizure undoubtedly occurred when Officer Pusateri placed himself in defendant's path and instructed him to stop since by this point it is clear that defendant was not free to disregard the police and walk away. Co...