Copeland v. State

• Decision Date: 11 June 2014
• Docket Number: No. A14A0404.,A14A0404.
• Citation: 759 S.E.2d 593,327 Ga.App. 520
• Court: Georgia Court of Appeals
• Parties: COPELAND v. The STATE.

327 Ga.App. 520

759 S.E.2d 593

COPELAND

v.The STATE.

No. A14A0404.

Court of Appeals of Georgia.

June 11, 2014.

James Edward Bischoff, Fayetteville, for Appellant.

Scott L. Ballard, Robert Wright Smith Jr., for Appellee.

ANDREWS, Presiding Judge.

A Spalding County jury convicted Toby Tremayne Copeland of possession of marijuana more than an ounce (OCGA § 16–13–30(j)), possession of marijuana with intent to distribute (OCGA § 16–13–30(j)), possession of a firearm during the commission of a crime (OCGA § 16–11–106), and reckless conduct (OCGA § 16–5–60(b)). Copeland appeals from the denial of his motion for new trial, as amended, challenging the admission of testimony purporting to explain police conduct and behavior common to drug activity, the effectiveness of trial counsel, and the sufficiency of the evidence. He also contends that the trial court erred when it ignored his post-trial request to weigh the credibility of the witnesses against him. Discerning no error, we affirm.

Viewed in the light most favorable to the jury's verdict, the evidence shows that on July 1, 2010, Lieutenant Curtis Keys of the Griffin Police Department began a seven-day surveillance of 236 Armstead Circle, Griffin, Georgia (the “property”). Lieutenant Keys had known of Copeland for ten years, was familiar with the car he drove, and believed he lived at the property because “that's the house I always see him at and always see his car at and he is normally in and out of that house.” In addition, during the time the property was surveilled, Copeland would simply enter the property without knocking and would stay there for hours and through the night. The surveillance officers suspected drug activity at the property because they observed multiple vehicles coming and going from it, the vehicles typically staying not more than two minutes.

When Special Agent Tishe Dyer checked the utilities usage for the property, she learned that the power company had not authorized service at its address. Noting that lights were nonetheless being used, the police obtained a knock-and-announce search warrant.

Although Corporal Stan Phillips and Officer Jonathan McGhee knocked loudly upon executing the warrant, the use of a ram was required to gain access through the barricaded front door of the property. Once inside, the entry team found three individuals: co-defendant Markevius Henley,¹ who had not been seen earlier in the week's surveillance, Henley's 8–year–old–son, and Copeland. Copeland emerged from the back of the property, cut away from the officers and ran into a bedroom where Phillips and McGhee “took him to the ground and secured him.” There the officers found a box of .40 caliber ammunition, three cell phones, a television displaying live feed from the front door of the house, a police scanner tuned to the Griffin Police Department's frequency, a handgun hidden under the mattress of a bed a foot or two from where Copeland fell, a pair of scissors with a green leafy substance on it, a Hope Scholarship application on which Copeland's name appeared as the applicant, men's clothing, men's shoes, and a pill bottle bearing Copeland's mother's name. Two of the cell phones contained Copeland's digital picture; a cell phone which belonged to Henley had a text message on it that said “[j]ust got four purp for 14.50.” Special Agent Dyer explained that her experience and training indicated that such a message translated to the type and quantity of marijuana in a drug transaction. Several messages in another cell phone found in the bedroom advised the recipient of police activity nearby. Delivered on July 8, 2010, approximately 23 minutes before the warrant was executed, the messages read: “Police setting some sh* * up across the street near you”; “They next door in the back yard”; and “Shorty say don't go to your door. Shut it down today.”

Under a couch in another bedroom, Corporal Phillips found a small plastic bag containing suspected marijuana. Corporal Chad Moxon, a K–9 handler, found a black trash bag containing three additional plastic bags containing suspected marijuana. The trash bag was concealed under brush and leaves in the woodline directly behind and “[m]aybe 20 yards” from the property. The contents of the bags seized in and outside the residence, as well as the substance taken from the scissors, later tested positive for marijuana having a net weight of 59.80 grams.

1. Copeland contends that the circumstantial evidence presented by the State was insufficient to show that he was in constructive possession of the marijuana and weapon at issue, requiring that his convictions be reversed. As to the marijuana seized behind the property, he makes the further argument that another person had equal access thereto, this also requiring reversal. These claims are not persuasive.

This Court determines the issue of evidentiary sufficiency under the standard of review set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[T]he 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.) Id. at 319(III)(B), 99 S.Ct. 2781. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.” (Citation omitted.) Rankin v. State, 278 Ga. 704, 705, 606 S.E.2d 269 (2004).

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.(Citations and punctuation omitted.) Vines v. State, 296 Ga.App. 543, 545(1), 675 S.E.2d 260 (2009). We find that the State presented evidence sufficient for the jury to reject Copeland's defenses and to find beyond a reasonable doubt that, because he knowingly had both the power and intention to exercise control over the contraband in and outside the property, he had constructive possession thereof.

“A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where, as here, the contraband is hidden.” (Citations omitted.) Mitchell v. State, 268 Ga. 592, 593, 492 S.E.2d 204 (1997). And “[e]vidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” (Citations and punctuation omitted.) Whipple v. State, 207 Ga.App. 131, 132(1), 427 S.E.2d 101 (1993). The State's evidence showed more than Copeland's mere presence in the property and spatial proximity to the contraband. The evidence was that Copeland resided in the property, and therefore not only had the power to exercise control over the property, Dickerson v. State, 312 Ga.App. 320, 321(1), 718 S.E.2d 564 (2011), but also that he had the intent to do so. Intent to exercise control may be inferred from the circumstances. Strozier v. State, 313 Ga.App. 804, 808, 723 S.E.2d 39 (2012). The quantum of marijuana seized in conjunction with the presence of the weapon and ammunition found in the bedroom he ran to on being confronted by police, as well as the cell phones containing his photograph, the Hope Scholarship application in his name, the video security system, the police scanner, and his mother's pill bottle therein, linked Copeland to the charged offenses. There also was evidence that Copeland had been warned that the police were coming; that such warning was received 23 minutes before the search warrant was executed, a time period sufficient to barricade the front door and hide the evidence. The foregoing, combined with other circumstantial evidence of intent, supported an inference that Copeland was connected to the contraband. Vines, supra, 296 Ga.App. at 545–547(1), 675 S.E.2d 260.

“When the State's constructive possession case is based wholly 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. Former OCGA § 24–4–6.” (Punctuation omitted.) Maddox v. State, 322 Ga.App. 811, 814(1), 746 S.E.2d 280 (2013). The circumstantial evidence presented by the State was consistent with the charge that Copeland had constructive possession of the marijuana and weapon; was sufficient to exclude every reasonable hypothesis save that of his guilt; and was sufficient to allow the jury to find beyond a reasonable doubt that Copeland had constructive possession thereof. Jackson v. Virginia, supra, 443 U.S. at 307, 99 S.Ct. 2781.

Copeland also argues that Henley had equal access to the contraband rendering the evidence against him insufficient. See Wilkerson v. State, 269 Ga.App. 190, 191–192(2), 603 S.E.2d 728 (2004) (presumption of constructive possession arising from ownership or control of the premises can be overcome by evidence that other persons had equal access to the contraband found there). But absent “unrebutted affirmative evidence demanding a finding of equal access,” the question of whether the presumption of possession has been overcome is for the jury to resolve. (Punctuation and footnote omitted.) Mangum v. State, 308 Ga.App. 84, 87(1) n. 10, 706 S.E.2d 612 (2011). “While the presence of others in [or outside] the house may be viewed as inculpating those individuals, their presence need not be viewed as exculpating [Copeland].” (Citation omitted.) Daugherty v....