Byers v. State
| Decision Date | 16 February 1994 |
| Docket Number | A93A2324,Nos. A93A2323,s. A93A2323 |
| Citation | 212 Ga.App. 110,441 S.E.2d 290 |
| Parties | BYERS v. The STATE. THOMPSON v. The STATE. |
| Court | Georgia Court of Appeals |
J. Tracy Ward, Dalton, for Byers.
Bates, Kelehear, Starr & Toland, James E. Toland, Jr., Dalton, for Thompson.
Jack O. Partain III, Dist. Atty., Herbert M. Poston, Jr., Asst. Dist. Atty., for appellee.
Appellants, Ronald Byers and Cecila Thompson, were jointly tried and convicted of possession of cocaine. They appeal separately from their convictions and sentences. Casanova Pritchett, a third defendant, was not tried with appellants.
The evidence adduced at trial showed that around midnight on February 20, 1992, two detectives were sitting in a tree surveilling a known drug area with binoculars when they observed appellants Byers and Thompson drive up in Byers' car and stop near a group of men standing in the street. Several of the men walked up to the driver's side of the car and spoke briefly to appellants. Byers drove off, circled the block and returned. Thompson got out and Byers drove around the block again. Thompson walked up to co-defendant Pritchett who searched her. Thompson handed money to Pritchett who shook out several small objects from a small bottle and gave them to Thompson. Byers returned, Thompson got into the car and they left. The detectives called for a patrol car which stopped Byers' vehicle a short time later. The officer requested that Thompson exit the car and, as she did so, a white napkin fell out on the ground. When the officer observed Thompson trying to step on the napkin, he examined it and found a piece of crack cocaine inside. He also found two pieces of crack cocaine and some powdered crack cocaine next to the napkin. A set of scales was also found in the car. The detectives testified at trial that, based on their experience, the transaction they witnessed appeared to be a drug buy and that it was not uncommon for a seller to tell the buyer to leave briefly while the seller retrieved the drugs.
Thompson testified and denied that the cocaine was hers. She testified that Byers had given her a ride and that she had met up with Pritchett because Byers had been looking for marijuana. She further testified that when Byers saw the police he said "I'm throwing the sh-- out the window" and that he threw a medicine bottle containing "Xanax and stuff like that out the window." Byers testified that Thompson had asked him to give her a ride to the area where he dropped her off. Thompson wanted him to wait for her; he was nervous about the neighborhood, so he drove around once and came back. He denied any knowledge of the cocaine or the scales. He further denied having driven around the block twice or talking to the men in the street.
1. Thompson and Byers both contend the evidence was insufficient to support their convictions.
(a) As related above, the detectives observed Thompson purchase several small objects from co-defendant Pritchett in what the detectives believed to be a drug transaction. When Thompson and Byers were pulled over a short time later, the arresting officer saw a napkin which contained several pieces of crack cocaine fall out of the car with Thompson. Further, Thompson tried to either hide or destroy the contraband by stepping on the napkin. This evidence was sufficient to enable a rational trier of fact to find Thompson guilty of possession of cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
(b) Byers contends that the evidence was insufficient to convict him because there was no evidence that he was in possession of the cocaine which fell out of the car with Thompson. Specifically, Byers contends that the only connection between him and the cocaine is that Thompson was a passenger in his car. He correctly argues that a finding of constructive possession must be based on more than mere "spacial proximity."
(Citations and punctuation omitted.) Carswell v. State, 201 Ga.App. 746, 747, 412 S.E.2d 572 (1991).
The detectives testified that they observed Byers and Thompson drive up and speak to a group of men under surveillance for suspected drug activity from the driver's side of Byers' car. Byers circled the block and Thompson exited his car and, after being searched by Pritchett, Thompson purchased several small objects from Pritchett while Byers again circled the block and picked Thompson up. The detectives testified that...
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