Carter v. State

• Decision Date: 25 January 2013
• Docket Number: No. A12A2399.,A12A2399.
• Citation: 737 S.E.2d 714,319 Ga.App. 609
• Parties: CARTER v. The STATE.
• Court: Georgia Court of Appeals

319 Ga.App. 609

737 S.E.2d 714

CARTER

v.The STATE.

No. A12A2399.

Court of Appeals of Georgia.

Jan. 25, 2013.

Matthew Karl Hube, Statesboro, for Appellant.

Richard Ashley Mallard, Joseph Barclay Black, for Appellee.

ELLINGTON, Chief Judge.

Following a bench trial in Bulloch County State Court, Derek B. Carter was found guilty of possessing marijuana with intent to distribute, OCGA § 16–13–30(j); possessing marijuana with intent to distribute within 1,000 feet of a school, OCGA § 16–13–32.4(a); possessing a firearm during the commission of a crime, OCGA § 16–11–106(b); and possessing a firearm on school grounds, OCGA § 16–11–127.1. Carter filed a motion for new trial, which the trial court denied. Carter appeals this ruling, challenging the denial of his motion to suppress and the sufficiency of the evidence. For the following reasons, we affirm in part and reverse in part.

Viewed favorably to the trial court's findings,¹ the evidence shows that Georgia Southern University police were investigating alleged marijuana sales, which were taking place from an on-campus apartment. A reliable confidential informant told the police that someone named “Taylor” was selling marijuana. The informant approached Taylor, who had no marijuana. Taylor offered to take the informant to a place where marijuana could be purchased. According to Taylor, he always purchased marijuana “from these guys.”

Through the informant, the police arranged two controlled buys. On both occasions, Taylor took the informant to an apartment in the University Villas. Taylor went inside briefly before returning with marijuana. The sales were made by Rahsaan Thompson, one of the residents of the apartment.

Following the sales, an investigator with the police department obtained a warrant for the apartment. The investigator testified that the apartment has a common area with living space and a kitchen and four separate bedrooms, labeled A through D, with locking doors.² There were two bathrooms in the apartment, each with access from two of the bedrooms. Although Thompson was the only occupant involved in the sale of marijuana, the police obtained a warrant to search the entire apartment. While searching bedroom B, which was Carter's bedroom, police found, on a desk, a glass jar on a desk containing marijuana, digital scales, and plastic sandwich bags. In a small closet, police discovered a shoe box with marijuana in it and a laundry hamper containing a 22 caliber revolver.

Carter moved to suppress the evidence seized from his room, arguing that the search warrant for the entire apartment was overly broad. Following a bench trial at which the suppression issue was considered, the trial court denied the motion and found Carter guilty.

1. On appeal, Carter contends that the trial court erred in denying the motion to suppress. In reviewing a trial court's ruling on a motion to suppress, we construe the evidence in a light favorable to upholding the trial court's finding and judgment. See Rowe v. State, 314 Ga.App. 747, 748, 725 S.E.2d 861 (2012). We will not disturb the trial court's ruling if there is any evidence to support it, and we accept the trial court's credibility determinations unless clearly erroneous. See id. “The trial court's application of law to undisputed facts, however, is subject to de novo review.” (Punctuation omitted.) Id.

According to Carter, the search warrant at issue was invalid because it was for a multiple-occupancy dwelling, but failed to describe the particular subunit to be searched.

[T]he general rule is that a search warrant for an apartment house or hotel or other multiple-occupancy building will usually be held invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude a search of one or more subunits indiscriminately. There are, however, exceptions to this general rule. The warrant of a multi-unit structure will be valid where (1) there is probable cause to search each unit; (2) the targets of the investigation have access to the entire structure; or (3) the officers reasonably believed that the premises had only a single unit.

(Citation and punctuation omitted.) Conrad v. State, 316 Ga.App. 146, 148–149(1), 730 S.E.2d 7 (2012). Here, the magistrate court was authorized to find probable cause for the issuance of the warrant.

In determining whether probable cause supports the issuance of a search warrant, the issuing magistrate “must evaluate all the circumstances set forth in the affidavit before him or her and make a practical, common-sense decision whether there is a fair probability that evidence of a crime will be found in a particular place.” (Punctuation omitted.) Fletcher v. State, 284 Ga. 653, 655(3), 670 S.E.2d 411 (2008). On review, an appellate court “is limited to determining if the magistrate had a ‘substantial basis' for concluding that probable cause existed to issue the search warrant, and must afford substantial deference to the magistrate's decision.” (Punctuation omitted.) Id. at 655–656, 670 S.E.2d 411.

According to the affidavit presented to the magistrate, a reliable confidential informant had made two controlled buys of marijuana during the past 48 hours. Each time, the informant went with Taylor to the same apartment, and Taylor returned with marijuana. During the buy, police were conducting surveillance of the apartment. Taylor told the police that he always purchased marijuana “from ‘these guys' because they always have the best.” Based upon this information, the magistrate was authorized to conclude that more than one resident of the apartment was selling marijuana and that there was a substantial basis for believing that evidence of the crime could be found throughout the apartment. As probable cause existed for the issuance of the warrant, the trial court did not err in denying Carter's motion to suppress. See Conrad v. State, 316 Ga.App. at 150–151(1), 730 S.E.2d 7.

2. Carter contends that the evidence was insufficient to support his convictions for possessing a firearm during the commission of a felony and carrying a weapon on school grounds. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. See Parramore v. State, 277 Ga.App. 372, 626 S.E.2d 567 (2006). We neither weigh the evidence nor assess witness credibility. See id. Evidence is sufficient if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Davis v. State, 287 Ga.App. 783, 784(1), 653 S.E.2d 107 (2007).

(a) Pursuant to OCGA § 16–11–106(b), it is a felony to “have on or within arm's reach of his or her person a firearm ... during the commission of, or the attempt to commit ... [a]ny crime involving the possession, manufacture ... or possession with intent to distribute ... marijuana.” “[W]hen a defendant is charged under this statute, the evidence is sufficient to sustain a conviction when it is shown at trial that a firearm was within arm's reach of the defendant at any point during the commission of the crime, thus giving the defendant immediate access to the weapon.” (Citation and punctuation omitted). Davenport v. State, 308 Ga.App. 140, 148(1)(c), 706 S.E.2d 757 (2011).

Although circumstantial, the evidence is sufficient to show that the weapon was within arm's reach of Carter during the commission of a crime.³ The gun was in a laundry hamper in a small closet Although the marijuana was in a shoe box on a shelf, the investigator testified that...