Duncan v. State
| Decision Date | 19 June 2018 |
| Docket Number | A18A0487 |
| Citation | 346 Ga.App. 777,815 S.E.2d 294 |
| Court | Georgia Court of Appeals |
| Parties | DUNCAN v. The STATE. |
Strauss & Frost, John L. Strauss, for appellant.
Stephen A. Bradley, District Attorney, Jeffrey P. Burks, Assistant District Attorney, for appellee.
Alfred Duncan appeals his convictions for possession of methamphetamine, possession of methamphetamine with intent to distribute, two counts of possession of drug-related objects, and possession of a firearm by a convicted felon. Specifically, Duncan argues that (1) there was insufficient evidence to support his drug convictions; (2) his trial counsel was ineffective for failing to file a motion to suppress evidence; (3) the trial court erred in denying his post-trial motion for fingerprint testing; and (4) the trial court erred by denying his motion for a directed verdict as to the firearm-related conviction because there was a fatal variance between the offense alleged in the indictment and the proof presented at trial. For the reasons set forth infra , we affirm.
Viewed in the light most favorable to the jury's verdict,1 the evidence shows that on May 5, 2014, Amy Johnson and her boyfriend went to Duncan's house around noon to go fishing. At some point, Johnson's boyfriend left, and she went inside Duncan's home. Johnson's boyfriend did not return that day, and because Duncan refused to give Johnson a ride or let her use his phone, she was forced to stay the night. While Johnson was there, Duncan entered the room where she was staying, along with two other people,2 and asked her to have sexual intercourse or oral sex with him, but she refused. Although Johnson tried to leave several times, Duncan told her that she "wasn't going anywhere." And later that evening, Duncan came into Johnson's room again, waving a gun and saying "something about sexual favors." On May 7, 2014, two days after Johnson first arrived at Duncan's home, she escaped and ran to a friend's house while he was in the shower.3 Johnson told her friend and his son about the ordeal and requested a ride home, where she lived with her boyfriend and his parents. They agreed, and once she arrived home, Johnson called 911 to report the incident. A sheriff's deputy responded to the call and escorted Johnson to the sheriff's department for questioning.
After interviewing Johnson, law-enforcement officers went to Duncan's residence to investigate further. Once they arrived, the officers knocked on the door and announced that they were from the sheriff's department, but initially, there was no response. Through a window, the officers saw doors being closed and heard movement in the house like "people were shuffling around," which led them to believe that someone was home. For this reason, they continued to knock on the door and yell "Sheriff's Office[,] loud and clear." Eventually, about 20 minutes after the officers arrived, Duncan answered the door, but he refused to consent to a search of his home. As a result, the officers obtained a warrant to search Duncan's home for the handgun described by Johnson. And during the search, they found a Crown Royal bag that contained a silver flask or margarita shaker, two small baggies of what appeared to be methamphetamine, another small bag with what appeared to be methamphetamine residue, a "meth pipe[,]" and a digital scale. Given this discovery, the officers sought a second warrant to search for other drugs and drug paraphernalia, but no other drugs were found. But while waiting on the second warrant, the other officers continued searching for the firearm, which they eventually found "in a big box by the front door ..." that also contained "a bunch of electronics that had been taken apart." The contents of the Crown Royal bag were then sent to the crime lab for testing, and just as the officers suspected, the substance inside the small baggies tested positive for methamphetamine.
Thereafter, Duncan was charged with false imprisonment, possession of methamphetamine with intent to distribute, possession of methamphetamine, theft by receiving stolen property, possession of a firearm by a convicted felon, and two counts of possession of drug-related objects.4 And following a jury trial, Duncan was convicted of the foregoing drug-and-firearm offenses, but found not guilty of false imprisonment and theft by receiving stolen property. Duncan filed a motion for a new trial and a post-trial motion for independent fingerprint testing of certain evidence, but after a hearing, the court denied both motions. This appeal follows.5
1. Duncan first argues that the trial court erred in denying his motion for a directed verdict as to all of the drug-related charges because there was insufficient evidence to support his convictions for those offenses. We disagree.6
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."7 And, of course, in evaluating the sufficiency of the evidence, we do not "weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."8 Thus, we will uphold a jury's verdict so long as there is "some competent evidence, even though contradicted, to support each fact necessary to make out the State's case."9 Bearing these guiding principles in mind, we turn now to Duncan's specific challenge to the sufficiency of the evidence supporting his convictions.
Duncan argues that there is insufficient evidence to establish that he was in actual or constructive possession of the Crown Royal bag, which contained the methamphetamine and related paraphernalia.10 It is well established that "possession of drugs can be actual or constructive, sole or joint."11 And a person has actual possession of a thing if "he or she knowingly has direct physical control of it at a given time."12 On the other hand, 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."13 Generally, a finding of constructive possession "cannot rest [solely] upon the person's spatial proximity to the object."14 Nevertheless, "[i]f the State presents evidence that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband."15 And while this presumption may be rebutted by showing that others had access to the premises, the equal-access doctrine "applies to rebut the presumption of possession only where the sole evidence of possession of contraband found on the premises is the defendant's ownership or possession of the premises."16 Significantly, however, so long as there is "slight evidence of access, power, and intention to exercise control or dominion over an instrumentality, the question of fact regarding constructive possession remains within the domain of the trier of fact."17
Here, the State presented ample evidence of Duncan's constructive possession of the methamphetamine and drug paraphernalia found inside the Crown Royal bag. To begin with, the contraband was found in Duncan's residence, which authorizes a jury to presume that he possessed it. Second, Griffin testified that Duncan and Brown had a "drug business going on." Griffin further testified that both Duncan and Brown "smoked meth," and when asked where the drugs came from, she stated that they "were selling it together." And this testimony was consistent with that of a law-enforcement officer, who had experience in narcotics and testified that the items contained in the Crown Royal bag, such as separate baggies and a digital scale, show an intent to distribute drugs. Finally, when law-enforcement officers knocked on Duncan's door and repeatedly announced their presence, his suspicious behavior also evinced a connection between himself and the illegal contraband. Indeed, as previously noted, Duncan refused to answer the door for about 20 minutes, during which time the officers heard people inside "shuffling around."18
Duncan's sole argument appears to be that the evidence was insufficient to establish that he possessed the Crown Royal bag because the State failed to prove that it did not belong to Brown, who fled the scene after the law-enforcement officers arrived. Without providing citations to any specific testimony or other evidence, Duncan maintains that, other than the discovery of the contraband in his home, the only evidence the State presented to establish his possession of the Crown Royal bag was Griffin's testimony that "everybody had been doing/smoking meth and that both Brown and Duncan kept their methamphetamine in Crown Royal bags."19 At trial, Duncan testified in his own defense that Brown fled his home when the officers arrived, that Brown owned the Crown Royal bag containing the contraband, and that Duncan had never seen the bag before law-enforcement officers discovered it. But although Duncan denied any knowledge of the contraband, the jury was "not obligated to believe [him] even if [his] testimony is uncontradicted and may accept or reject any portion of the testimony."20 Furthermore, contrary to Duncan's argument, the State "is not required to disprove bare possibilities that the crime could have been committed by someone else."21 In sum, given Duncan's failure to rebut the presumption that he was in possession of the contraband found in his home, combined with the other evidence detailed supra , the jury was authorized to find that he was in constructive possession of the drugs and drug-related objects contained in the Crown Royal bag.22 2. Duncan next argues that his trial counsel was ineffective for failing to file a motion to suppress the drugs and drug-related objects...
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