Hill v. State

Citation860 S.E.2d 893,360 Ga.App. 143
Decision Date25 June 2021
Docket NumberA21A0351
CourtUnited States Court of Appeals (Georgia)
Parties HILL v. The STATE.

John R. Monroe, for Appellant.

Lee Darragh, Gainesville, Laura Katherine Lukert, for Appellee.

Brown, Judge.

Gilbert Alexander Hill appeals from his convictions of trafficking heroin, trafficking fentanyl, possession of heroin with the intent to distribute, possession of benzodiazepine, possession of marijuana, and possession of a firearm by a convicted felon. Hill contends that insufficient evidence supports his convictions because he was merely present in the location where the drugs and guns were found and the evidence failed to exclude every other reasonable hypothesis except that of his guilt. For the reasons set forth below, we agree and reverse.1

On appeal from a criminal conviction, the standard for reviewing the sufficiency of the evidence

is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.... This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence.

(Citations and punctuation omitted.) Hayes v. State , 292 Ga. 506, 739 S.E.2d 313 (2013). So viewed, the evidence shows that law enforcement officers lawfully searched a mobile home in connection with "an investigation [into] illicit narcotics that involved" the home.2 When the officers arrived around 10:00 a.m., they knocked repeatedly for several minutes at different locations, which included the front door, back door, and windows, while announcing themselves as sheriff's deputies or MANS ("Multi Agency Narcotics Squad") agents in a normal tone of voice that progressed to yelling after no one came to the door. After seeing no movement in the home and receiving no response to their knocks and announcements, the officers went to "a neighboring ... home," knocked on the door, and located Brittany Grizzle, who was in a back bedroom with an unidentified male. The officers obtained from Grizzle a key to the front door of the mobile home that they sought to search; the key was located on the night stand in the bedroom where they found Grizzle.

When the officers entered the mobile home using the key that opened the front door, they continuously identified themselves and found no one after conducting an "initial clear" of the home. The officers then began a "deep clear," which involved looking in cabinets and underneath beds. During this clearing process, three to four officers were constantly and loudly announcing, "Police, come out, show me your hands." The deep clear revealed Hill hiding fully clothed behind a shower curtain in the bathroom shower. It did not appear that he was preparing to take a shower. A search of Hill's person revealed "nothing."

During their search of the mobile home, the officers discovered that it had two bedrooms, only one of which had a bed; this room had men's clothing in the closet. The other room had no bed and women's clothing in the closet. Underneath the kitchen sink, the officers found a bag containing a dark gray substance that was a mixture of heroin and fentanyl, as well as two handguns. Hill's license was "[o]n top of the kitchen sink." Black tar heroin was found in the freezer. Digital scales, commonly used to measure small amounts of narcotics to sell, along with Grizzle's identification card and birth certificate, were on the kitchen table. A digital scale was also located on the kitchen stove. In the kitchen pantry, officers found less than an ounce of marijuana, several pills, "little baggies," and small pieces of tinfoil used for packaging, popular with heroin dealers and users. Officers testified that the quantity of drugs found, in conjunction with the scales and packaging materials, indicated "[h]eroin sales." The value of the heroin found in the home was approximately $26,000. The State presented evidence that a dealer would typically keep a large quantity of drugs like the amount found in this case on his or her person or "close by" so another dealer or user could not steal it; it would not be left unattended.

A sheriff's department investigator testified that law enforcement did not know who owned the home where the search took place or who might have been renting it; the State presented no evidence regarding who owned or rented the home. Law enforcement also did not establish that the clothing in the closet belonged to Hill, and the State presented no photos or video of items found during their search. The firearms were not registered to Hill, and the officers did not attempt to lift fingerprints in the home, from the guns, or the digital scales. Over the objection of Hill's counsel, a sheriff's investigator testified that law enforcement went to the home on the day of the search with the intent to find Hill and Grizzle there.3 Another officer testified that the police did not conduct any surveillance on the mobile home before arriving to execute the search.

Hill contends that we should reverse his convictions because the State's circumstantial evidence fails to exclude every reasonable hypothesis except that of his guilt. As a starting point for our analysis, we begin with a discussion of possession.

[P]ossession of contraband may be joint or exclusive, and actual or constructive. Actual possession means knowing, direct physical control over something at a given time. For constructive possession, the standard is also well-understood: if a person has both the "power and the intention at a given time to exercise dominion or control" over a thing, then the person is in constructive possession of that thing.[4 ] Mere proximity to contraband, absent other evidence connecting a suspect with that contraband, is not enough to establish constructive possession. If one person alone has actual or constructive possession of a thing, then the person is in sole possession of it. If two or more people share actual or constructive possession of a thing, then their possession is joint.

(Citations and punctuation omitted.) Lebis v. State , 302 Ga. 750, 753-754 (II), 808 S.E.2d 724 (2017).

As the State presented no evidence showing actual possession by Hill, we must determine whether it presented sufficient evidence of constructive possession.

Constructive possession can be proven—and very often is proven—by circumstantial evidence. Of course, as with any charge based on purely circumstantial evidence, in order to support a conviction "the evidence must exclude every reasonable hypothesis, save that of constructive possession by the defendant." As we have noted, proximity to contraband is plainly not enough. But as this Court has also held, consistent with OCGA § 24-14-6,[5 ] "questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and ... that finding will not be disturbed unless the verdict of guilty is unsupportable as a matter of law." In other words, whether the evidence shows something more than mere presence or proximity, and whether it excludes every other reasonable hypothesis, are questions committed principally to the trier of fact, and we should not disturb the decisions of the trier of fact about these things unless they cannot be supported as a matter of law.

(Citations and punctuation omitted.) Lebis , 302 Ga. at 754 (II), 808 S.E.2d 724. As the Supreme Court of Georgia has explained,

[t]his of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. After having heard the witnesses and having observed them testify, they are more capable of judging the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, and the defendant's statement, than is a court of law.

(Citation and punctuation omitted.) Harris v. State , 236 Ga. 242, 244-245 (1), 223 S.E.2d 643 (1976).

On the other hand,

[w]hen the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant's guilt beyond a reasonable doubt. Circumstantial evidence is worth nothing in a criminal case, if the circumstances are reasonably consistent with the hypothesis of innocence, as well as the hypothesis of guilt.

(Citation and punctuation omitted.) O'Neill v. State , 285 Ga. 125, 674 S.E.2d 302 (2009). See also Roberts v. State , 296 Ga. 719, 721-722 (1), 770 S.E.2d 589 (2015). Finally, the evidence "need not exclude every conceivable inference or hypothesis — only those that are reasonable." (Emphasis in original.) Merritt v. State , 285 Ga. 778, 779 (1), 683 S.E.2d 855 (2009).

The circumstantial evidence presented by the State against Hill includes: his conduct in refusing to come to the door and hiding for an extended period of time after the police entered the home and repeatedly announced themselves, his driver's license on top of the kitchen sink, the presence of two digital scales in plain view in the kitchen, and the value of the drugs in the home making it unlikely for them to be left unattended. We must therefore determine whether this evidence was sufficient to show that he "knowingly had both the power and intention at a given time to exercise control over the [drugs and guns]." (Citation and punctuation omitted.) Kier v. State , 292 Ga. App. 208, 209 (1), 663 S.E.2d 832 (2008).With regard to power, that may be inferred from his ability to access the drugs and guns while in the house. Id. See also Maddox v. State , 322 Ga. App. 811, 813 (1), 746 S.E.2d 280 (2013). The intent to exercise control over the drugs and guns "may be derived from the surrounding circumstances" such as

a defendant's attempts to flee or elude police; inconsistent explanations by the defendant for [
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