Davenport v. the State.Walsh v. the State.

• Decision Date: 02 March 2011
• Docket Number: Nos. A10A1750,A10A1751.,s. A10A1750
• Citation: 706 S.E.2d 757,308 Ga.App. 140
• Parties: DAVENPORTv.The STATE.Walshv.The State.
• Court: Georgia Court of Appeals

308 Ga.App. 140

706 S.E.2d 757

11 FCDR 591

DAVENPORT

v.The STATE.Walsh

v.The State.

Nos. A10A1750

A10A1751.

Court of Appeals of Georgia.

March 2, 2011.

Cinque M. Axam, Riverdale, for appellant(case no. A10A1750).Mack & Harris, Robert L. Mack Jr., Jonesboro, for appellant(case no. A10A1751).Tracy Graham–Lawson, District Attorney, Anece Baxter White, Assistant District Attorney, for appellee.DILLARD, Judge.

Following a jury trial, co-defendantsMark Paul Davenport and William Gerald Walsh were convicted of possessing methamphetamine and an open container of alcoholic beverage in a motor vehicle.Davenport was also convicted of attempting to manufacture methamphetamine and three counts of possessing a firearm during the commission of a felony; ¹ however, Walsh was found not guilty on those charges.²Because the charges against Davenport and Walsh arose from the same incident and set of facts, and because these two men were tried together, we have consolidated their separate appeals for review.

In Case No. A10A1750, Davenport appeals his convictions for attempt to manufacture methamphetamine, possession of methamphetamine, and possession of a firearm during the commission of a crime, contending that the evidence was insufficient to prove his guilt.Davenport also argues that he was denied effective assistance of counsel and that the trial court erred in denying his motions for directed verdict and a new trial on his claims.

In Case No. A10A1751, Walsh appeals his convictions for possession of methamphetamine and possession of an open container of alcoholic beverage in a motor vehicle, contending that the evidence was insufficient to support his convictions, and further that the trial court improperly commented on the issue of venue and the sufficiency of the evidence for the open-container violation, requiring reversal.

Viewed in the light most favorable to the verdict,³ the record shows that on the evening of May 23, 2008, a police officer observed a sport-utility vehicle (SUV) on I–75 making erratic lane changes, following too closely, and failing to signal.The officer then positioned his patrol car behind the SUV and activated his vehicle's emergency equipment.The SUV eventually maneuvered to the right side of the road, during which time the officer observed a good deal of movement in the back of the vehicle.This suspicious movement continued even after the vehicle came to a complete stop, prompting the officer to request backup assistance.Two additional officers responded to this request, and shortly thereafter, two officers approached the SUV, which contained Mark Paul Davenport, the driver; William Gerald Walsh, the front-seat passenger; and Edward Joseph Labretone,⁴ the back-seat passenger.

The officers observed that Davenport and Walsh were slow to answer their questions and had diminished fine-motor skills, slurred speech, as well as constricted pupils.The officers then requested and received consent from all three passengers to a search of their persons after exiting the vehicle; and as one of the officers prepared to search Labretone, two glass pipes consistent with drug use fell from his pants.The officer conducting the search of Labretone then found a clear plastic bag of white powder (later determined to be methamphetamine), three smaller plastic bags of white powder, and a small bag of marijuana.All three suspects were handcuffed after the discovery of this contraband.And while the officer declined to conduct a field-sobriety test on Davenport, Davenport did consent to a blood test that confirmed he was indeed under the influence of methamphetamine and several prescription drugs.Labretone later testified at trial that all three suspects were smoking methamphetamine just prior to the police stop and that he hid the contraband in his pants at Walsh's request.An officer also testified that Labretone referred to Davenport and Walsh as “big time meth cookers.”

Once the suspects were secure, the officers searched the vehicle, which was owned by Davenport.The search produced the following items: two handguns, one of which was loaded and placed under the driver's seat; a .22 caliber rifle with scope protruding from under the back seat; several knives, daggers, and machetes in the front seat; several cans of beer (some of which were open); one packet of antihistamine pills; a large pickle jar containing a Ziploc bag filled with a thick, clear liquid; and a suitcase containing two cans of kerosene, 100 to 200 double-A batteries, and small tubing of different lengths.Consistent with his training, one of the officers recognized the materials contained in the suitcase as being hazardous and regularly linked to the production of methamphetamine.Based on this recognition, the officer was instructed to secure the area and discontinue the search, which would later be completed by a specially trained narcotics unit.

At trial, the State presented expert testimony from a narcotics officer trained in investigating clandestine methamphetamine labs.This officer testified that when he and the other narcotics officers searched Davenport's SUV for chemicals, they found the following items (all of which are consistent with the manufacture of methamphetamine): a pack of antihistamine pills; a gallon of drain cleaner; the pickle jar (containing an unidentified acid); two bottles of brake fluid; two bottles of starter fluid; two bottles of salt; two gallons of Coleman fuel; Ziploc bags; coffee filters; plastic jugs; bulk lithium batteries; rubber tubing; and two propane bottles.The officer also testified that while the items found in Davenport's SUV were identified as components of a clandestine methamphetamine lab in shipment, a single pack of antihistamine pills would only produce a small amount of methamphetamine.Finally, the officer testified that the only missing ingredient from the materials found in Davenport's vehicle was anhydrous ammonia, a controlled farm fertilizer.After the close of evidence, Davenport and Walsh were found guilty of the charges enumerated supra.These appeals follow.

1.We first address Davenport and Walsh's claims that the evidence was insufficient to support their convictions.Discerning no error by the trial court, we affirm their respective convictions for the reasons set forth infra, and we hold that the trial court did not err in denying Davenport and Walsh's motions for directed verdict or new trial.

When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.⁵We do not weigh the evidence or determine witness credibility “but only determine

[706 S.E.2d 762 , 308 Ga.App. 143]

whether a rational trier of fact could have found the defendants guilty of the charged offenses beyond a reasonable doubt.”⁶Accordingly, the jury's verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case.”⁷Additionally, “the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction.”⁸With these guiding principles in mind, we will now address each of Davenport and Walsh's respective enumerations of error.

(a)Attempt to Manufacture Methamphetamine.In Case No. A10A1750, Davenport contends that the evidence was insufficient to support his conviction for attempt to manufacture methamphetamine.Specifically, Davenport argues that the evidence was insufficient to support a finding that he took a substantial step toward committing the crime of manufacturing methamphetamine because (1) the officers did not locate all of the items necessary for the production of methamphetamine, (2) the items present each had a legal use, and (3) a single pack of antihistamine pills would only produce a small amount of methamphetamine.We disagree.

An individual commits the offense of attempt when, “with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”⁹The act“must be more than mere preparation,” but it “can not accurately be said that no preparations can amount to an attempt.”¹⁰The question, then, is one of degree, depending “upon the circumstances of each case.”¹¹This analytical framework properly shifts the focus from what the criminal defendant has not done to what hehas already done,¹² and it recognizes that a finding that substantial steps have already been taken by an individual toward the commission of a crime is in no way precluded by the fact that there remain additional steps to be taken before the crime can be completed.¹³Additionally, while the act must generally be inexplicable as a lawful act, this requires only that “the act, in light of previous acts, constitutes a substantial step toward the commission of a crime,” not that the act itself be unlawful.¹⁴

Here, Davenport was charged with and found guilty of attempting to manufacture methamphetamine by “transporting the chemicals, tools and supplies to manufacture the methamphetamine.”And the evidence presented at his trial showed that Davenport's SUV contained most of the ingredients and components necessary for the clandestine manufacture of methamphetamine (some of which were in rather large quantities).Moreover, the State presented expert testimony that these items, when used together, indicate that methamphetamine is being produced.Further, the officers located methamphetamine in the vehicle, and Labretone told an officer that Davenport was a “big time meth cooker.”Finally, Davenport was found to have methamphetamine in his system.And while it is certainly true that “much of the evidence consisted of common household items,” these items in combination unquestionably “presented evidence of the [attempted] manufacture of...