Jones v. State

• Decision Date: 13 October 2016
• Docket Number: A16A1279
• Citation: 791 S.E.2d 625,339 Ga.App. 95
• Parties: Jones v. The State.
• Court: Georgia Court of Appeals

339 Ga.App. 95

791 S.E.2d 625

Jones

v.The State.

A16A1279

Court of Appeals of Georgia.

October 13, 2016

Reconsideration Denied October 27, 2016

Benjamin Alston Pearlman, for Appellant.

Kalki Yalamanchili, Kenneth W. Mauldin, for Appellee.

Dillard, Judge.

Following a trial by jury, Torrell Jones was convicted of possessing a controlled substance outside of its original container, trafficking in heroin, and possessing heroin with the intent to distribute. Jones appeals from the trial court's denial of his motion for new trial, contending that (1) the State failed to present sufficient evidence to support his conviction for trafficking in heroin; (2) the court improperly admitted into evidence a recorded telephone call between Jones and a person who did not testify at trial; (3) the court erred by permitting a law-enforcement officer to testify about the effects of heroin; (4) the court failed to consider the conviction as the “thirteenth juror” when it denied his motion for new trial; and (5) the court erred in denying a motion for mistrial after an improper comment from a State witness. For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the record reflects that in April 2012, law enforcement received information that, upon placing a phone call to a certain individual, a black Chrysler 300 would approach a Piggly Wiggly in Athens, Georgia, traveling from the east on Highway 78, for purposes of making a drug transaction. As a result of this information, law enforcement searched the area around the Piggly Wiggly and located a black Chrysler 300 parked in front of a nearby apartment.

Officers then learned through a trace of the license plate that the vehicle belonged to Torrell Jones and another person not relevant to this appeal.

With this information in hand, law enforcement engaged in surveillance of the black Chrysler 300 at the apartment complex, and an officer was instructed to stop the vehicle if it left the apartment and was en route to the Piggly Wiggly following a monitored phone call. A call was then placed by an informant and recorded by law enforcement, with a detective monitoring the call as it was made. During the call, a negotiation was made for a drug transaction. Then, after the call concluded, officers observed the black Chrysler 300 depart from the apartment complex and travel to the Piggly Wiggly with Jones driving. A stop was executed, and in addition to Jones, officers encountered a passenger, Nytasia Pope, who appeared to be “very nervous.” Officers found $3,100 in cash on Jones, and a small bag containing 1.89 grams of heroin was found hidden in Pope's private area. After interacting with Jones during the investigation, the detective who monitored the earlier call identified Jones and Pope's voices as those heard on the receiving end of the call placed by the informant.

After their vehicle was stopped, Jones and Pope were taken back to the apartment where the vehicle had previously been parked, and officers subsequently executed a search warrant at the residence. Inside the apartment's kitchen, officers located a tea box containing a bag of rice surrounding another plastic bag with 81.68 grams of heroin—the largest amount of heroin ever seized at one time in Athens–Clarke County. Additionally, officers found a small knife, a mortar, and a pestle, all with residue that was consistent with heroin. They also located tally sheets used to record drug transactions, a bottle of a cutting agent commonly used in the distribution of heroin, and three sets of digital scales. Finally, officers located a checkbook with Jones's name and the address of that apartment. Jones was subsequently tried for and convicted of the offenses enumerated supra . This appeal follows.

At the outset, we note that when a criminal conviction is appealed, the appellant no longer enjoys a presumption of innocence,² and the relevant question is whether, “after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”³ We are not at liberty to weigh the evidence or determine witness credibility, and the jury's verdict will be upheld so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case.⁴ With these guiding principles in mind, we turn now to Jones's enumerations of error.

1. First, Jones challenges the sufficiency of the evidence as to his conviction for trafficking in heroin. Specifically, Jones contends that the evidence was insufficient to show that he constructively possessed the heroin discovered in the apartment and that, even if he did possess the heroin, the evidence was insufficient to show that he knew the weight of the heroin. We disagree as to both contentions.

(a) Jones jointly and constructively possessed the heroin . Jones maintains that the evidence was insufficient to show that he constructively possessed the heroin discovered in the apartment's kitchen. We disagree.

At the time Jones was alleged to have committed trafficking in heroin (April 23, 2012), OCGA § 16–13–31 (b) provided that “[a]ny person who knowingly sells, manufactures, delivers, brings into this state, or has possession of 4 grams or more of ... heroin, as described in Schedules I and II, ... commits the felony offense of trafficking in illegal drugs[.]”⁵ It is well established that possession of drugs can be “actual or constructive, sole or joint.”⁶ A person has actual possession of a thing if he or she “knowingly has direct physical control of it at a given time.”⁷ And 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.”⁸ Finally, if one person alone has actual or constructive possession of a thing, that person has sole possession, but “if two or more persons share actual or constructive possession of a thing, possession is joint.”⁹

Here, Jones and Pope were jointly indicted for possessing more than 28 grams of heroin.¹⁰ And as we have previously held, the equal-access rule¹¹ has no application when, as here, “all persons having access to the contraband are alleged to have been in joint, constructive possession of that contraband.”¹² Of course, when constructive possession is based upon circumstantial evidence, the facts must both be consistent with the hypothesis of guilt and exclude every other reasonable hypothesis.¹³ The proved facts, however, need exclude only “reasonable hypotheses—not bare possibilities that the crime could have been committed by someone else,”¹⁴ and the jury generally decides questions of reasonableness.¹⁵

As previously noted, the 81.68 grams of heroin were discovered inside of a tea box in the kitchen of the apartment. And during a protective sweep performed before execution of the search warrant, officers did not locate any other individuals inside the apartment.¹⁶ Later, officers found a checkbook inside the apartment that listed both the apartment's address and Jones's name. Moreover, in addition to the large amount of heroin found hidden in the tea box, officers also discovered numerous other items throughout the apartment that were related to the distribution of heroin and were not hidden—i.e. , the drug-transactions tally sheet; three sets of digital scales (one of which was in the kitchen with powder residue and rice fragments); the knife, mortar, and pestle with residue consistent with heroin; and the cutting agent commonly used in the distribution of powdered drugs. Finally, when Jones and Pope were searched, officers discovered $3,100 in cash on Jones and a small baggie of heroin hidden in Pope's private area. This combined circumstantial evidence was sufficient for the jury to conclude that Jones jointly and constructively possessed the large quantity of heroin discovered in the kitchen.¹⁷

(b) Jones knew the weight of the heroin . Jones also argues that even if the evidence was sufficient to show that he constructively possessed the heroin located in the kitchen, the evidence was insufficient to show that he knew the weight of the heroin exceeded 28 grams. Again, we disagree.

As previously noted, at the time Jones was alleged to have committed trafficking in heroin (April 23, 2012), OCGA § 16–13–31 (b) provided that “[a]ny person who knowingly sells, manufactures, delivers, brings into this state, or has possession of 4 grams or more of ... heroin, as described in Schedules I and II, ... commits the felony offense of trafficking in illegal drugs[,]”¹⁸ and “[i]f the quantity of such substances involved is 28 grams or more, the person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and shall pay a fine of $500,000.00.”¹⁹

In Scott v. State,²⁰ the Supreme Court of Georgia ruled that the plain language of the statute, as it then existed,²¹ “dictates the conclusion that knowledge of the quantity of the drug was an element of the crime.”²² In so holding, the Court explained that this (prior) version of the statute “contains express scienter requirements, that is, knowledge of the nature and amount of the drug and of being in possession of it.”²³ Thus, because “knowledge” was part of the offense, our Supreme Court held that the State had the burden of proving the defendant's guilty knowledge.²⁴ Accordingly, in prosecutions for this offense under the prior statute, the State was required to prove that the defendant had knowledge of the weight of the controlled substance.²⁵

Here, the quantity of heroin discovered in the kitchen weighed 81.68 grams—nearly three times the threshold weight of 28 grams under the relevant statute. And as discussed supra , although the heroin was hidden within a tea box in the kitchen, other items commonly associated with drug distribution were located in the kitchen in plain...