Jackson v. State

• Decision Date: 28 March 2007
• Docket Number: No. A06A2300.,A06A2300.
• Citation: 644 S.E.2d 491,284 Ga. App. 619
• Parties: JACKSON v. The STATE.
• Court: Georgia Court of Appeals

284 Ga. App. 619

644 S.E.2d 491

JACKSON v. The STATE.

No. A06A2300.

Court of Appeals of Georgia.

March 28, 2007.

Sanford A. Wallack, Atlanta, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

BARNES, Chief Judge.

Bradley Duane Jackson appeals the denial of his motion for new trial following his convictions for trafficking in cocaine, possession of cocaine with the intent to distribute, possession of marijuana less than one ounce, two counts of possession of a firearm during the commission of a crime, attempting to elude, stop sign violation, and giving a false name. Upon our review, we affirm his convictions.

1. Jackson contends that the evidence was insufficient to sustain his convictions for trafficking in cocaine, possession of cocaine with the intent to distribute, possession of marijuana, and possession of a firearm during the commission of a crime. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and Jackson no longer enjoys the presumption of innocence. Short v. State, 234 Ga.App. 633, 634(1), 507 S.E.2d 514 (1998). We do not weigh the evidence or determine witness credibility, but determine only if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Viewed in the light most favorable to the verdict, the evidence showed that when an officer attempted to stop a vehicle that Jackson was driving for running a stop sign, Jackson sped away and attempted to elude the officer. The officer turned on his siren and blue lights, and followed as Jackson drove his car erratically, swerving in and out of traffic. Jackson hit the curb, "skidded out," and came to a stop on the sidewalk. The passenger jumped out and ran into a wooded area, and Jackson attempted to follow him out of the passenger side, but police prevented him from escaping. Jackson told police that his name was Deshaun Walker. The police officer who chased and captured the passenger testified that, when he brought the passenger back to the car, he noticed a "large amount of narcotics beside the passenger side open door." The officers searched the car and recovered a loaded handgun from the front passenger floorboard, and a scale. They also recovered thirty-five bags of white powder, which were later determined to hold a total of 79.22 grams of 87.7 percent pure cocaine, and eight bags containing about twenty-one grams of marijuana. Jackson had $1,755 in cash on his person. The passenger testified that he flagged Jackson down for a ride after he had a disagreement with his girlfriend. He knew Jackson, but had not seen him in several years, and he did not know that there were drugs or a gun in the car.

The State introduced evidence of four similar transactions—a 1993 conviction for possession of cocaine with intent to distribute, a 1996 conviction for possession of cocaine with the intent to distribute and giving a false name, a 2001 arrest for possession of cocaine and marijuana, and giving a false name, and a 2003 arrest when Jackson was discovered in an apartment with a trafficking amount of cocaine and a scale.

Jackson argues that his convictions for possession of the drugs and gun must be overturned because the State presented no direct evidence that he ever had actual possession of the items, and the circumstantial evidence relied on by the State was insufficient to show constructive possession because he did not own the car.

Possession may be either actual or constructive. Uriostegui v. State, 269 Ga. App. 51, 53, 603 S.E.2d 478 (2004). Constructive possession exists where a person "though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing." (punctuation and footnote omitted.) Meridy v. State, 265 Ga.App. 440, 441(1), 594 S.E.2d 378 (2004). "To warrant a conviction on circumstantial evidence, the proved facts need exclude only reasonable hypotheses—not bare possibilities that the crime could have been committed by someone else. And questions of reasonableness are generally decided by the jury." (Punctuation and footnotes omitted.) Jackson v. State, 281 Ga.App. 83, 84-85(1), 635 S.E.2d 372 (2006). See Wright v. State, 279 Ga.App. 299(1), 630 S.E.2d 774 (2006). ("As long as there is slight evidence of access, power, and intention to exercise control or dominion over an instrumentality, the question of fact regarding constructive possession remains within the domain of the trier of fact.") (punctuation and footnote omitted).

While certainly mere presence at the scene of a crime is insufficient to establish possession of contraband, Hodges v. State, 277 Ga.App. 174, 626 S.E.2d 133 (2006), here there was evidence to establish more than presence alone. Jackson was driving a car that belonged to his sister, who testified that there was no cocaine, marijuana, or a gun in her car before Jackson took it. The passenger's girlfriend corroborated the passenger's story that they were together until they had an argument and he got out of the car. It was for the jury to decide how to weigh and view that evidence, and we will not disturb their judgment unless it is "[in]supportable as a matter of law." (Footnote omitted.) Jackson, supra, 281 Ga.App. at 84-85(1), 635 S.E.2d 372. We find, however, that this evidence when coupled with evidence of Jackson's prior drug offenses was sufficient to establish that he possessed the contraband at issue and thus to support his convictions. See id.

2. Jackson also claims that Count 6 of the indictment charging him with eluding police is fatally defective because it does not charge that he was attempting to elude a "pursuing" police officer. We find no merit to this argument.

[B]ecause a general demurrer attacks the legality of an indictment, it is permissible to raise this ground after verdict by a motion in arrest of judgment even if there was no earlier objection. A motion in arrest asserts that the indictment contains a defect on its face affecting the substance and real merits of the offense charged and voiding the indictment, such as failure to charge a necessary element of a crime. A motion in arrest of judgment or habeas corpus are the only remedies available when no demurrer to the indictment is interposed before judgment is entered on the verdict.

(Citations and punctuation omitted.) Harris v. State, 258 Ga.App. 669, 670-671(1), 574 S.E.2d 871 (2002). Thus, this claim is not properly before us because Jackson failed to object to the indictment in any manner before or during trial and did not move to arrest the judgment after his conviction.

Moreover, the relevant statute, OCGA § 40-6-395(a) provides: "[A]ny driver of a vehicle [who] willfully ... fail[s] or refuse[s] to bring his ... vehicle to a stop[,] or [who] otherwise ... flee[s] or attempt[s] to elude a pursuing police vehicle ... when given a visual or an audible signal to bring the vehicle to a stop," commits a felony when he flees from a pursuing officer in an attempt to escape arrest for a felony and he drives more than 30 mph over the speed limit, collides with another vehicle or pedestrian, flees in traffic conditions which place the general public at risk of serious injuries, or leaves the state. OCGA § 40-6-395(b)(5)(A). The indictment stated that Jackson,

while attempting to escape arrest for a felony offense of V.G.C.S.A., involving possession of cocaine, did willfully fail and refuse to bring his vehicle to a stop after having been given a visual signal by emergency lights and audible signal by siren, by [the officer] ... in uniform prominently displaying his badge of office and in an appropriately marked official police vehicle, and did flee in traffic conditions which placed the general public at risk of receiving serious injuries.

An accusation or indictment is not subject to a general demurrer unless there is a defect so extreme that the defendant can admit the charge as made and still be innocent. State v. Jones, 251 Ga.App. 192, 193, 553 S.E.2d 631 (2001). The indictment tracks the statutory definition of felony eluding an officer except for the term "pursuing." The true test of the sufficiency of the indictment is not

whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. [Cits.]

(Punctuation omitted.) State v. Black, 149 Ga.App. 389, 390(2), 254 S.E.2d 506 (1979). We find that the indictment provided sufficient notice of the charge that the omission of the term "pursuing" did not prove prejudicial to Jackson's presentation of his defense.

3. Jackson also complains that the trial court erred in admitting evidence of similar transactions, arguing, among other things, that the evidence was insufficient in two of the offenses to show that he had committed the crimes, and that the other offenses were not similar to the one for which he was on trial. We do not agree.

As noted above, the trial court held a hearing on the admissibility of similar transaction evidence under Uniform Superior Court Rule 31.1, and admitted similar transaction testimony for the limited purpose of bent of mind and course of conduct of a 1993 conviction for possession of cocaine, a 1996 conviction for possession of cocaine with intent to distribute and giving a false name, and two pending cases where, upon the execution of a search warrant, Jackson was found in apartments with cocaine and a scale. One of the arrests occurred after the offense for which he...