Green v. State, s. 76342 and 76351

• Decision Date: 11 May 1988
• Docket Number: Nos. 76342 and 76351,s. 76342 and 76351
• Citation: 187 Ga.App. 373,370 S.E.2d 348
• Parties: GREEN v. The STATE. MIMS v. The STATE.
• Court: Georgia Court of Appeals

Page 348

370 S.E.2d 348

187 Ga.App. 373

GREEN v. The STATE.

MIMS v. The STATE.

Nos. 76342 and 76351.

Court of Appeals of Georgia.

May 11, 1988.

Rehearings Denied June 2, 1988.

Certiorari Denied July 1, 1988.

Janet G. Scott, Jonesboro, for appellant (case no. 76342).

Ansell T. Maund, III, College Park, for appellant (case no. 76351).

Robert E. Keller, Dist. Atty., Albert B. Collier, Clifford A. Sticher, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

Appellants Anthony Lee Green and Sheonne Mims were indicted for the offense of trafficking in cocaine, in that they were "knowingly in actual possession of more than 400 grams of a mixture with a purity of more than ten percent cocaine." Appellant Green was also indicted for possession of a firearm by a convicted felon. The jury returned a verdict of guilty as to all counts. Appellants filed separate appeals which are hereby consolidated for disposition in this single opinion.

1. Appellant Mims enumerates as error the denial of her motion to suppress

certain items which were seized from an apartment.

Appellant Mims concedes that the seizure of the actual cocaine from the apartment, which seizure was accomplished by employees of the apartment complex, was not a violation of her Fourth Amendment rights. This is so because the apartment complex employees were neither agents of the State nor were they acting pursuant to any police instructions. Appellant Mims urges, however, that subsequent searches of the apartment, which were conducted by a police officer with the consent of the apartment complex employees, were unlawful and that the evidence which was seized during those searches should have been suppressed.

"Generally, the lessor of real property has no authority to consent to a warrantless search of rental property which is subject to an existing lease arrangement. [Cits.]" (Emphasis supplied.) Browning v. State, 176 Ga.App. 420, 421(1), 336 S.E.2d 41 (1985). In this case, however, there was evidence which would authorize the trial court to find that, at the time that the entries by the police officer occurred, appellant Mims had neither leased nor was residing in the apartment, and that she had no contractual rights in the premises which were in any way superior to those of the apartment complex employees. Accordingly, the contested evidence was the product of lawful searches conducted pursuant to the valid consent of the apartment complex employees.

Moreover, even assuming that the trial court erred in denying appellant Mims' motion to suppress, the reversal of her conviction would not necessarily result. The objects which were subsequently removed by the police were merely cumulative of the large amount of cocaine which previously had been found in the apartment by the apartment complex employees. As noted, the seizure of the cocaine itself, the possession of which contraband actually underlay the prosecution of appellants, is not contested. "If the admission of tainted evidence is harmless beyond a reasonable doubt the conviction will stand. [Cit.] When the properly admitted evidence to sustain a guilty verdict is overwhelming so as to negate the possibility that the tainted evidence contributed to the verdict, the constitutional error may be harmless. [Cit.] We find it harmless in this case...." Ellis v. State, 256 Ga. 751, 755(2), 353 S.E.2d 19 (1987).

2. Each of the appellants enumerates the general grounds.

OCGA § 16-13-31(a)(1) requires proof that the defendant was "knowingly in actual possession" of cocaine. The evidence in this case, although it was for the most part circumstantial, was sufficient for a rational trier of fact to find, beyond a reasonable doubt, that appellant Mims was knowingly in actual possession of more than twenty-eight grams of cocaine and that appellant Green was a party to the crime. The proved facts were not only consistent with the hypothesis of guilt, but they also excluded every other reasonable hypothesis except that appellant Mims had placed the cocaine in the apartment where it was discovered and removed by the apartment complex employees, and that appellant Green had then aided and abetted her in its recovery. "[A] person who knowingly has direct physical control over a thing at a given time is in actual possession of it. [Cit.] ... Although appellants testified they knew nothing about the [cocaine] their credibility was a question for the jury. [Cit.] ... It is well settled that when individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one or more of the conspirators is in legal contemplation the act of all. [Cits.]" Evans v. State, 167 Ga.App. 396, 397(1), 306 S.E.2d 691 (1983). See also Robinson v. State, 175 Ga.App. 769(3), 334 S.E.2d 358 (1985). "Whether he had physical possession of the cocaine, [appellant Green] aided and abetted its actual physical possession and is guilty of the offense of trafficking under OCGA § 16-13-31 and under § 16-2-20, as a party to the crime.... The 'actual possession' required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the possession of such substances so as to be a party to the crime of trafficking." Barrett v. State, 183 Ga.App. 729, 735-736(2), 360 S.E.2d 400 (1987).

We note that the trial judge did instruct the jury that it "would be authorized to convict only if they should find beyond a reasonable doubt that the defendant[s] had actual or constructive possession either alone or jointly with others of the contraband." (Emphasis supplied.) Subsequent to the trial of this case, the giving of such a charge in a trafficking in cocaine case was found to be reversible error. Lockwood v. State, 257 Ga. 796, 364 S.E.2d 574 (1988). This issue cannot be raised on appeal by either appellant, however, because their counsel waived any objection to the instructions which were given by the trial court. See Leverett v. State, 254 Ga. 691(1), 333 S.E.2d 609 (1985). The only issue which appellants are entitled to raise on appeal is the sufficiency of the evidence of their actual possession of the contraband. We find the evidence as to...