Davitte v. State

• Decision Date: 28 June 1999
• Docket Number: No. A99A0373.,A99A0373.
• Citation: 520 S.E.2d 239,238 Ga. App. 720
• Parties: DAVITTE v. The STATE.
• Court: Georgia Court of Appeals

520 S.E.2d 239

238 Ga. App. 720

DAVITTE v. The STATE.

No. A99A0373.

Court of Appeals of Georgia.

June 28, 1999.

Akin & Tate, Samuel L. Tate III, Thomas N. Brunt, Cartersville, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

RUFFIN, Judge.

Following a bench trial, Mark Davitte was convicted of one count of violating Georgia Racketeer Influenced & Corrupt Organizations (RICO) law and one count of aiding and abetting the possession of marijuana with intent to distribute. Davitte appeals, asserting that the evidence was insufficient to support a conviction on both counts and that the State failed to prove venue. For reasons that follow, we affirm.

1. The standard of review applicable to a challenge to the sufficiency of the evidence is well established:

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. To sustain the conviction, the evidence must be sufficient to authorize the [trier of fact's] finding of the defendant's guilt of the crime charged beyond a reasonable doubt.

(Punctuation omitted.) James v. State, 227 Ga.App. 907, 908(1), 490 S.E.2d 556 (1997).

Applying this standard, the evidence showed that Carroll County Deputy Sheriff Clay Culver discovered marijuana at the home of Kenneth Stamps following a search in April 1997. Kenneth agreed to become an informant, and he identified as his immediate

[ 520 S.E.2d 241]

supplier his cousin, Joseph Stamps,¹ who resided in Douglas County. Kenneth told Deputy Culver that Stamps, in turn, got his marijuana from a man who lived in south Georgia whom Kenneth knew only as the "Big Man." According to Deputy Culver, Kenneth informed him that every Sunday the "Big Man"—later identified as John Brannon—would drive to a house in Cobb County owned by Davitte. There, Brannon would deliver marijuana to Stamps and several other mid-level dealers. Stamps would then return home to Douglas County and distribute marijuana to approximately 20 lower-level dealers, including Kenneth. Kenneth testified that Brannon "fronted" the marijuana to Stamps, meaning that Stamps did not pay for the marijuana until after he had sold it, and that Stamps in turn fronted marijuana to Kenneth. Kenneth further testified that he had been present at Stamps' residence when Brannon arrived to resupply Stamps directly with marijuana, and on one occasion, Kenneth accompanied his cousin to Davitte's Cobb County home to pick up marijuana.

Based on this information, Deputy Culver planned for Kenneth to execute a controlled purchase of marijuana from Stamps on Sunday, April 6, 1997. The plan failed, however, when Stamps called Kenneth to his home that morning and "fronted" him marijuana, without requesting immediate payment. Kenneth delivered the marijuana to Culver, who turned it over to Douglas County authorities and later gave Kenneth marked currency to pay Stamps for it.

Several days later, Kenneth told Culver that Stamps would be distributing more marijuana the following Sunday, April 13. Anticipating that Stamps would first pick up marijuana from Brannon at Davitte's Cobb County home in the manner described by Kenneth, a surveillance team followed Stamps that morning in an effort to discover the location of Davitte's residence. The team lost Stamps at a red light, however. Later that day, Stamps called Kenneth to come pick up more marijuana, which Kenneth did. Kenneth then turned the marijuana over to police and was given marked currency to pay Stamps.

According to Kenneth, the next marijuana pickup was scheduled for Monday, April 21, 1997. Police again followed Stamps from his Douglas County residence and saw him drive to Davitte's house in Cobb County. Stamps entered the house, followed shortly thereafter by another unidentified man. The two men later emerged, with Stamps carrying a guitar case and the unidentified man carrying a nylon bag. Both men conversed briefly with Davitte, who also came outside, and then drove away. Later that day, Kenneth obtained more "fronted" marijuana from Stamps, turned it over to police, and was given more marked money to pay for it.

The next Sunday, April 27, law enforcement once again followed Stamps' vehicle to Cobb County, where Stamps and his wife entered Davitte's residence. Brannon arrived approximately five minutes later and also entered the residence. Stamps, Brannon, and Davitte exited the residence shortly thereafter, conversed briefly, and went back inside. Stamps and his wife, who was carrying a large beach bag, then left the house and drove away. Brannon left after speaking further with Davitte. Police stopped Brannon soon after he left. A search of Brannon's vehicle and person yielded one pound of marijuana and $4,650 in cash, including $340 in marked bills that police previously had given to Kenneth to pay Stamps. Police also searched Davitte's house and found a small quantity of dried marijuana, ten live marijuana plants under a grow lamp, scales commonly used to weigh small quantities of drugs, notes and records commonly kept by drug dealers to document amounts owed to them, and other drug paraphernalia. Finally, police searched the Stampses' residence after the Stampses arrived home and discovered approximately three pounds of marijuana in a beach bag on the kitchen floor.

At trial, the State presented telephone records showing that the April 13, 21, and 27 transactions were all preceded by one or more telephone calls from Brannon's residence to Stamps' residence. The State also showed that on the morning of Sunday, March 23—before police began their investigation—a telephone call was placed from Davitte's residence to Brannon's residence.

A Douglas County grand jury returned an indictment against Davitte, Brannon, Stamps, and Mrs. Stamps, charging all four with violating Georgia's RICO and controlled substances laws. Four RICO predicate crimes were alleged against Davitte, including (1) aiding and abetting Brannon's transfer of marijuana to the Stampses on April 27 for transport to and distribution in Douglas County by making his home available as the location for such transfer; (2) aiding and abetting Brannon's possession of marijuana with intent to distribute on April 27 by making his home available as the location for such possession; (3) possession and manufacture of marijuana in his Cobb County home; and (4) using a telephone facility to further a violation of the drug laws by calling Brannon's residence on March 23. In addition to the RICO count, Davitte also was charged with three counts of aiding and abetting the possession of more than one ounce of marijuana with intent to distribute (on April 13, 21, and 27) and one count of conspiring to possess with intent to distribute more than one ounce of marijuana on April 27. Following the trial of Davitte and Brannon,² the trial court found Davitte guilty of the RICO violation and possession with intent to distribute marijuana on April 21 and acquitted him of the remaining counts.

(a) Davitte asserts that the evidence was insufficient to support his RICO conviction. Before a defendant may be convicted of a RICO violation, he must have engaged in "at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents." OCGA § 16-14-3(8); see also Chancey v. State, 256 Ga. 415, 417-418, 349 S.E.2d 717 (1986). Davitte argues that the State failed to prove that he engaged in at least two of the four predicate acts with which he was charged. We disagree.

First, Davitte argues that the first two predicate acts with which he was charged—aiding and abetting the Stampses' possession of marijuana and aiding and abetting Brannon's possession of marijuana—are in reality one act: the April 27 transaction in which Brannon transferred three pounds of marijuana to the Stampses and retained one pound for himself. Davitte asserts that this single transaction cannot be broken down into two predicate acts. However, Davitte does not challenge the sufficiency of the evidence to support the existence of one predicate act arising from the April 27 transaction. For the purpose of our analysis, we will assume that the evidence was sufficient to establish only one predicate act.

As to the third predicate act with which Davitte was charged, possessing and manufacturing marijuana at his residence, Davitte contends that the State failed to prove any interrelationship between this act and either the other charged predicate acts or the enterprise itself. To satisfy the interrelatedness requirement, the State must show that the defendant engaged in at least two "similar or interrelated incidents of racketeering activity." (Punctuation omitted.) Caldwell v. State, 253 Ga. 400, 402(1), 321 S.E.2d 704 (1984). Here, the State showed that Davitte had ten live marijuana plants in his home, photographs of previous grows, scales used to weigh small quantities of drugs, and notes indicating amounts owed to him for drugs. The State presented testimony that these items are commonly used in connection with drug distribution schemes. Based on this evidence, the trial court could infer that Davitte's possession of marijuana and drug paraphernalia was similar or related to the other predicate acts (which charged facilitation of marijuana distribution) as well as the enterprise (the purpose of which was marijuana distribution). See, e.g., Doe v. State, 189 Ga.App. 793, 795, 377 S.E.2d 546 (1989) (presence of drug paraphernalia along with drugs supports inference of intent to distribute)....