Holiman v. State

Decision Date30 November 2011
Docket NumberNo. A11A1321.,A11A1321.
PartiesHOLIMAN v. The STATE.
CourtGeorgia Court of Appeals

11 FCDR 3957
313 Ga.App.
76
720 S.E.2d 363

HOLIMAN
v.
The STATE.

No. A11A1321.

Court of Appeals of Georgia.

Nov. 30, 2011.


[720 S.E.2d 364]

Long Dai Vo, for appellant.

Paul L. Howard Jr., Dist. Atty., Stephany Julissa Luttrell, Asst. Dist. Atty., for appellee.

BLACKWELL, Judge.

[313 Ga.App. 76] Following a bench trial in Fulton County, Jamison Holiman was convicted of trafficking in 400 grams or more of a mixture containing cocaine, 1 based on evidence that Jamison and his brother, Royrecaus, had joint constructive possession of the mixture.2 Jamison appeals, contending that the evidence adduced at trial is insufficient to sustain his trafficking conviction for several reasons. First, Jamison asserts that, because the State did not prosecute his brother, and because it is undisputed that his brother had equal access to the mixture, proof of joint constructive possession cannot sustain his conviction, and the State instead was required to prove that Jamison had sole constructive possession of the mixture. Second, even if proof of joint constructive possession could sustain the conviction, the evidence does not really prove, Jamison says, that he had constructive possession of any of the mixture, much less 400 grams or more of it. Finally, Jamison contends that the evidence does not show that the cocaine mixture had a purity of 10 percent or more.3 We find no merit in these claims and affirm the judgment of conviction.

To prove that Jamison committed the offense of which he was convicted, the State

[720 S.E.2d 365]

had to prove beyond a reasonable doubt that Jamison knowingly possessed 400 grams or more of a “mixture with a purity of 10 percent or more of cocaine.” OCGA § 16–13–31(a)(1)(C). When we consider whether the evidence adduced at trial is sufficient to sustain the trafficking conviction, we view the evidence in the light most favorable to the prosecution, and we ask only whether any rational trier of fact could find proof beyond a reasonable doubt of the essential elements of trafficking. Ferguson v. State, 307 Ga.App. 232, 233(1), 704 S.E.2d 470 (2010). It is for the trier of fact to pass upon the weight and credibility of the evidence and to resolve any conflicts in the evidence, and we do not concern ourselves with such things. See id. “[I]f the record contains some competent evidence to prove each element of the crime of which the defendant [313 Ga.App. 77] was convicted, even though that evidence may be contradicted, we must uphold the conviction.” Id.

The evidence here shows that law enforcement officers secured a warrant in November 2005 to search an apartment in Fulton County in connection with an extensive investigation of cocaine sales and trafficking in west Atlanta, and when they executed the warrant, the officers found Jamison and his brother inside. According to the officers, the apartment is a small one, and it consists primarily of a kitchen and common living area, two bedrooms, and a balcony. By the time the officers executed the warrant, Jamison had been in the apartment for at least two hours, and he had been its sole occupant for most of that time, until his brother arrived at the apartment just before the officers executed the warrant.4 The officers first attempted to gain entry to the apartment by knocking on the door and announcing that they had a warrant, but when they did so, they heard “people running through the apartment,” and they then elected to make a forcible entry. When they entered the apartment, the officers found Jamison hiding under a bed in the first bedroom, and they discovered Royrecaus attempting to escape off the balcony. The officers ordered Jamison to come out from his hiding place, but he refused, and the officers had to drag him from it and secure him with handcuffs. Jamison then became belligerent and began yelling profanities at the officers.

Inside the apartment, the officers found not only Jamison and his brother, but also a little marijuana, a lot of cocaine, and equipment commonly used in the distribution of illegal drugs. In the kitchen, for instance, the officers saw a clear plastic bag in plain view, in which they found approximately 95 grams of a substance that, testing later confirmed, was cocaine hydrochloride.5 The officers also found two digital scales, pots and baking soda,6 packaging materials, an empty holster for a handgun, and two small bags of marijuana in the kitchen. In the bedroom in which the officers found Jamison, they discovered another bag of marijuana, which was on the floor and near the bed under which Jamison had hidden. And in the other bedroom, the door of which was wide open, the officers found eight plastic bags on the bed, which together contained, as testing later [313 Ga.App. 78] confirmed, approximately 373 grams of cocaine hydrochloride and nearly 123 grams of cocaine base. Also in the second bedroom, the officers discovered a black bag, which contained approximately $3,400 in cash. According to the officers, the apartment is relatively open, and the bags of cocaine found in both the kitchen and the second bedroom were easily visible from the common living area of the apartment, such that no occupant of the apartment could have failed to see them. In addition, the officers described a strong odor of burnt marijuana throughout the apartment.

[720 S.E.2d 366]

After Jamison was apprehended, he made several spontaneous statements to the officers. In the course of these statements, Jamison referred to the apartment in which he and his brother were found as “our house.” More specifically, Jamison told the officers that he had been on the balcony as the officers approached the apartment, had seen them approach, and had attempted to warn Royrecaus that officers “were coming to our house.” The officers also found some personal effects of Jamison—mail addressed to him—in the bedroom in which Jamison had hidden.

At trial, the State presented evidence of two similar transactions. In the first of these transactions, in May 2004, two officers found Jamison in the passenger seat of a vehicle in Atlanta, and they found a black bag—which contained approximately 11 grams of cocaine base, packaged for distribution, and more than $5,000 in cash—on the floor of the back seat of the vehicle. In the second, an officer detained Jamison in Douglasville in February 2005 and found him in possession of about 3.5 grams of cocaine base and more than $1,300 in cash. With this evidence and the proper standard of review in mind, we turn now to the claims that the evidence is insufficient to sustain the trafficking conviction.

1. We first consider whether the evidence shows that Jamison knowingly possessed the cocaine mixture found in the apartment. As we have explained before, “[t]he law recognizes that possession can be actual or constructive, sole or joint,” Richardson v. State, 305 Ga.App. 850, 852, 700 S.E.2d 738 (2010), and the nature of each theory of possession is settled and familiar. A person has actual possession of a thing if he “knowingly has direct physical control [of it] at a given time.” Vines v. State, 296 Ga.App. 543, 545(1), 675 S.E.2d 260 (2009) (citation omitted). “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.” Id. (citation omitted). “If one person alone has actual or constructive possession of a thing, possession is sole,” but “[i]f two or more persons share[ ] actual or constructive possession of a thing, possession is joint.” Id. (citation omitted). The State says that the evidence in this case shows that Jamison and his [313 Ga.App. 79] brother had joint constructive possession of the cocaine mixture in the apartment. Jamison claims, however, that the State must show that he had sole constructive possession of the mixture and that, in any event, the evidence does not show that he had constructive possession of it, sole or joint. We will address these claims in turn.

(a) In Reid v. State, 212 Ga.App. 787, 788, n. 1, 442 S.E.2d 852 (1994), this Court said that, when more than one individual has equal access to contraband, but only one of these individuals is prosecuted for its possession, and the State relies on evidence of constructive possession, the State must prove that the individual charged “was in sole constructive possession” of the contraband. (Emphasis in original.) We have found no mention of this principle in any case that preceded Reid, and our opinion in Reid cites no authority for it and does not explain why it must be so. The principle was not mentioned again for some time, but in the past few years, this Court has invoked the principle again and again, but never explaining its basis. See, e.g., Jefferson v. State, 309 Ga.App. 861, 862(1), 711 S.E.2d 412 (2011); Wheeler v. State, 307 Ga.App. 585, 586–587(1), 705 S.E.2d 686 (2011); Bodiford v. State, 305 Ga.App. 655, 657, 700 S.E.2d 648 (2010); Fyfe v. State, 305 Ga.App. 322,...

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6 cases
  • Lebis v. State
    • United States
    • Georgia Supreme Court
    • December 11, 2017
    ..., 249 Ga. 565, 567, 292 S.E.2d 667 (1982) ; Jones v. State , 339 Ga. App. 95, 98 (1) (a), 791 S.E.2d 625 (2016) ; Holiman v. State , 313 Ga. App. 76, 78 (1), 720 S.E.2d 363 (2011) ("A person who, though not in actual possession, knowingly has both the power and the intention at a given time......
  • Reyes v. State
    • United States
    • Georgia Court of Appeals
    • June 28, 2013
    ...intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.Holiman v. State, 313 Ga.App. 76, 78, 720 S.E.2d 363 (2011) (punctuation and citations omitted). “A finding of constructive possession of contraband cannot rest upon mere spatial ......
  • Reyes v. State
    • United States
    • Georgia Court of Appeals
    • November 16, 2015
    ...is sole, but if two or more persons share actual or constructive possession of a thing, possession is joint.Holiman v. State, 313 Ga.App. 76, 78(1), 720 S.E.2d 363 (2011) overruled in part, on other grounds, Maddox v. State, 322 Ga.App. 811, 815(2), 746 S.E.2d 280 (2013) (citations and punc......
  • Mcneal v. State
    • United States
    • Georgia Court of Appeals
    • March 21, 2014
    ...share actual or constructive possession of a thing, possession is joint.(Citation and punctuation omitted.) Holiman v. State, 313 Ga.App. 76, 78(1), 720 S.E.2d 363 (2011). See also Maddox v. State, 322 Ga.App. 811, 811–814(1), 746 S.E.2d 280 (2013) (Maddox, who was front seat passenger in c......
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