Jackson v. State, s. A11A1778

• Decision Date: 22 February 2012
• Docket Number: A11A2221.,Nos. A11A1778,s. A11A1778
• Parties: JACKSON v. The STATE.Esters v. The State.
• Court: Georgia Court of Appeals

12 FCDR 685

314 Ga.App. 272

724 S.E.2d 9

JACKSON

v.The STATE.Esters

v.The State.

Nos. A11A1778

A11A2221.

Court of Appeals of Georgia.

Feb. 22, 2012.

Edward Paul Dettmar, for appellant (case no. A11A1778).

Jennifer Elaine Hildebrand, LaFayette, for appellant (case no. A11A2221).

Thomas Joseph Campbell, Dist. Atty., Rosemary M. Greene, Asst. Dist. Atty., for appellee.MILLER, Judge.

Courtne Darnell Jackson and Myron Esters were jointly indicted, tried, and convicted of trafficking in 3, 4–methylenedioxymethamphetamine (“MDMA” or “ecstacy”) (OCGA § 16–13–31.1); possession of marijuana with intent to distribute (OCGA § 16–13–30(j)(1)); and possession of a firearm during the commission of a felony (OCGA § 16–11–106(b)(4), (5)). Both appeal from the trial court's denial of their respective motions for new trial. In Case No. A11A1778, Jackson challenges the sufficiency of the evidence supporting his convictions.¹ In Case No. A11A2221, Esters contends that his trial counsel provided ineffective assistance. We discern no error and affirm in both cases.

On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict and [the defendant] no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence to support a conviction, 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. Jackson v. Virginia [, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ]. (Citation, punctuation and footnotes omitted.) White v. State, 295 Ga.App. 366, 671 S.E.2d 851 (2008).

So viewed, the trial evidence shows that on August 5, 2008, Jackson, who lived in Tennessee, decided to travel to Atlanta, Georgia to visit friends. Jackson invited his acquaintance and co-defendant, Patreecia Nelson, to accompany him on the trip.

Upon arriving in Atlanta, Jackson and Nelson met Esters at his apartment. Jackson and Esters entered the apartment, while Nelson stayed in the vehicle. While inside the apartment, Jackson observed Esters handling a lot of individual bags of marijuana and ecstacy pills and “looking for something to put his drugs in.” Shortly thereafter, Jackson and Esters exited the apartment and returned to the vehicle. Jackson opened the trunk of the vehicle, and stood by as Esters placed a shoe box inside. Jackson and Esters stood at the vehicle's open trunk for approximately two or three minutes. They later closed the trunk and re-entered the vehicle. Jackson, Esters, and Nelson then left the apartment and began traveling back to Tennessee.

Two officers with the Resaca Police Department were conducting interstate traffic patrol and observed Jackson's vehicle weaving between lanes. Nelson was driving the vehicle. The officers conducted a traffic stop of the vehicle based upon the failure to maintain lane violation.

After approaching the vehicle, the officer observed that each of the occupants was extremely nervous, and Jackson was “shaking real bad[.]” As part of the ongoing traffic stop, the officer performed a free air search around the vehicle with his trained K–9 unit dog, and the dog alerted on the trunk of the vehicle. A search of the vehicle's trunk then ensued.

Upon searching the trunk, the officers recovered Jackson's bag, which contained 750.1 grams/26.45 ounces of marijuana packaged in three individual bags, 29.67 grams of MDMA or ecstacy pills packaged in a separate cellophane bag, and a loaded handgun. Jackson informed the officers that the handgun belonged to him. Jackson, Esters, and Nelson were arrested and charged jointly as parties to the drug offenses.²

Jackson testified in his defense at trial. He initially testified that he had seen Esters with marijuana and ecstacy, but later gave inconsistent testimony that he was unaware of the ecstacy pills until after the traffic stop. Jackson admitted that he was aware that marijuana was inside the vehicle and that he would have driven Esters to Tennessee with the drugs if they had not been stopped by the officers.

Esters also testified at trial. The trial evidence included a photograph showing Esters in possession of the handgun that had been seized during the search of the vehicle's trunk. Esters, however, denied having had any access to the vehicle's trunk. He further denied having had any prior knowledge or ownership of the contraband.

Case No. A11A1778

1. Jackson contends that the trial evidence was insufficient to support his convictions. His contention is without merit.

(a) Joint Constructive Possession. Although Jackson was not driving the vehicle in which the contraband was found at the time of the stop, he was the owner of the vehicle.

Under Georgia law, the owner of an automobile is presumed to be in possession and control of any contraband found in the automobile, but this presumption is rebuttable by evidence of equal access to the contraband by others.... However, the equal access rule, conceptually and historically, has no application where, as here, all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of that contraband.

(Citations, punctuation, and footnotes omitted.) White, supra, 295 Ga.App. at 367–368, 671 S.E.2d 851. “Possession may be joint or exclusive, and actual or constructive.” (Citation, punctuation and footnote omitted.) Id. “[J]oint constructive possession with another will sustain a conviction for possession of contraband.” (Citation and punctuation omitted.) Cochran v. State, 300 Ga.App. 92, 94(1)(a), 684 S.E.2d 136 (2009).

Here, Jackson, Esters, and Nelson were all charged as parties to the drug and weapon offenses. The trial evidence set forth above established circumstantially that Jackson and Esters had equal access to the contraband and were in joint constructive possession of it. Notwithstanding any conflicts or inconsistencies in the evidence,³ the jury was authorized to find that Jackson knew that Esters had possession of the marijuana and ecstacy. The evidence also showed that Jackson allowed Esters to place the drugs in the trunk of his vehicle, and that Jackson knowingly transported the drugs in his vehicle. Moreover, an officer testified that Jackson had claimed ownership of the handgun.

Jackson's “[p]resence, companionship, and conduct before and after the offense[s] are circumstances from which [his] participation in the criminal intent may be inferred.” (Citation and punctuation omitted.) Robinson v. State, 175 Ga.App. 769, 773(3), 334 S.E.2d 358 (1985). The evidence supported a finding that Jackson was a participant and a party to the crimes charged. See OCGA § 16–2–20(a), (b)(3) (“Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.... A person is concerned in the commission of a crime only if he ... [i]ntentionally aids or abets in the commission of the crime[.]”); Waters v. State, 280 Ga.App. 566, 567–568, 634 S.E.2d 508 (2006) (evidence that the defendant transported his co-defendant in a car knowing that he was in possession of the drugs authorized a finding that defendant was in joint constructive possession of the drug contraband); Robinson, supra, 175 Ga.App. at 771(1), 334 S.E.2d 358 (concluding that the circumstantial evidence sufficiently established that each of the co-defendants had constructive possession of the drug contraband found in the trunk of the automobile).

(b) Trafficking in MDMA. Under OCGA § 16–13–31.1, the felony offense of trafficking in MDMA is committed when a person knowingly possesses 28 grams or more of the MDMA drug substance. The evidence established that the amount of MDMA in Jackson's constructive possession was 29.67 grams, exceeding that required for the trafficking offense. See id. The evidence therefore supported the trafficking conviction. Id.

(c) Possession of Marijuana with Intent to Distribute. OCGA § 16–13–30(j)(1) proscribes that “[i]t is unlawful for any person to ... possess with intent to distribute marijuana.” To support a conviction for this offense, the State must prove more than mere possession or intent for personal use. See Pitts v. State, 260 Ga.App. 553, 556–557(3), 580 S.E.2d 618 (2003). Rather, the evidence must show an intent to distribute. See id.

Here, Jackson testified that he had observed Esters handling “lots” of marijuana. The testimony of the officers established that the marijuana discovered in the vehicle weighed 750.1 grams or 26.45 ounces, which was in excess of one pound. The marijuana was packaged into three individual bags and had a street value of over $1,000. Significantly, the marijuana was found with a trafficking amount of MDMA and a loaded weapon, constituting evidence of involvement in the drug trade. See Causey v. State, 274 Ga.App. 506, 508, 618 S.E.2d 127 (2005) (affirming conviction for possession of marijuana with intent to distribute based upon evidence that defendant also was in possession of large quantities of another illegal drug and a weapon); Pitts, supra, 260 Ga.App. at 557(3), 580 S.E.2d 618 (affirming conviction for possession of marijuana with intent to distribute based upon evidence that 28 grams of marijuana divided into five individual packages was found with a large, distribution amount of another illegal drug). Although Jackson and Esters both testified at trial, neither claimed that the marijuana was for personal use. There likewise was no evidence that any of the co-defendants were drug users or were under the influence of drugs.⁴ As such, the jury was authorized to reject a hypothesis that the marijuana was for personal use, as opposed to distribution. We have consistently held that

[q]uestions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to...