Hendrixson v. State

• Citation: 306 S.E.2d 350,167 Ga.App. 517
• Decision Date: 28 June 1983
• Docket Number: No. 66048,66048
• Parties: HENDRIXSON v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 350

306 S.E.2d 350

167 Ga.App. 517

HENDRIXSON v. The STATE.

No. 66048.

Court of Appeals of Georgia.

June 28, 1983.

Rehearing Denied July 18, 1983.

Certiorari Denied Sept. 22, 1983.

Timothy P. Healy, Toccoa, for appellant.

V.D. Stockton, Dist. Atty., Michael H. Crawford, Asst. Dist. Atty., for appellee.

SHULMAN, Chief Judge.

Appellant was indicted for and convicted of the possession and sale of cocaine and marijuana and the manufacture of marijuana, in violation of the Georgia Controlled Substances Act. She now appeals from the judgment entered on the jury verdicts.

1. Much of the state's case against appellant was premised on a conspiracy theory. The state presented evidence that appellant was the lessee and a tenant of the house where all the narcotic purchases took place, and of the land where both growing and concealed marijuana was discovered. A notebook which contained what experts said were memoranda of narcotics transactions written in appellant's handwriting, and from which appellant's fingerprints were lifted, was found in appellant's bedroom, as was a triple beam scale, a purse containing $10,000 which appellant claimed as her property, and a white powdery substance called mannitol, commonly used to dilute cocaine. The bags of cocaine purchased by the undercover agent from two of appellant's co-indictees contained mannitol as well as cocaine. Before one buy, the agent saw appellant with a white substance with was represented to him as cocaine, and the two other contraband sellers/co-indictees informed the purchasing agent at the time of the sales that appellant was the source of the narcotics.

"The question of the existence of a conspiracy is for the jury to decide. [Cit.] And the existence of a common design or purpose between alleged conspirators may be shown either by direct or circumstantial evidence. [Cit.] Thus, conspiracy may be shown by conduct as well as by direct proof [of] express agreement, by inference as well as deduction from conduct which shows common design on the part of persons charged to act together for the accomplishment of the unlawful purpose. [Cits.]" Wireman v. State, 163 Ga.App. 439-440, 295 S.E.2d 530. The state presented sufficient evidence to authorize jury instructions on conspiracy and parties to a crime (see Hayes v. State, 163 Ga.App. 177(2), 293 S.E.2d 62; Smith v. State, 154 Ga.App. 258(5), 267 S.E.2d 863), and there was sufficient evidence from which a rational trier of fact could conclude, beyond a reasonable doubt, that appellant was involved in a conspiracy to sell narcotics. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

2. Once a showing of the existence of a conspiracy and appellant's membership therein was established, "the door was then open under [OCGA § 24-3-5 (Code Ann. § 38-306) ] for the admission into evidence of the declarations of the other conspirators made during the pendency of the conspiracy." Gilstrap v. State, 162 Ga.App. 841, 846, 292 S.E.2d 495. Thus, the statements made by appellant's co-indictees during drug transactions with the agent were admissible and did not need the corroboration required by OCGA § 24-4-8 (Code Ann. § 38-121), since the remarks were not the uncorroborated testimony of accomplices. The trial court was correct to deny appellant's motions for directed verdict and for new trial in Counts 3 and 4, which motions were based on appellant's claim of insufficient corroboration of the out-of-court statements of accomplices.

3. Count 2 of the indictment accused appellant and Aubrey Dockins of selling cocaine to the undercover agent. Appellant contends that there was no evidence corroborative of the testimony of her alleged accomplice and, therefore, her motions for directed verdict and for new trial as to this count should have been granted. See OCGA § 24-4-8 (Code Ann. § 38-121). There is, however, a fatal flaw to appellant's reasoning. The accomplice's testimony was corroborated by the testimony of the undercover agent, who stated that Dockins took him to appellant's bedroom to purchase cocaine. There, appellant sat cross-legged on her bed holding in her lap a clear plastic bag containing a...