Kittler v. State, A98A1125.
| Decision Date | 25 August 1998 |
| Docket Number | No. A98A1125.,A98A1125. |
| Citation | 234 Ga. App. 120,506 S.E.2d 231 |
| Parties | KITTLER v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Daniel E. Gavrin, for appellant.
Benjamin F. Smith, Jr., District Attorney, Bruce D. Hornbuckle, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.
Following a bench trial, the trial judge found John Daniel Kittler guilty of possession of cocaine with intent to distribute, simple possession of LSD, and possession of marijuana with intent to distribute. Kittler appeals, and we affirm.
1. Kittler contends that the Chief Judge of the Magistrate Court of Cobb County, who presided over the case, lacked authority to act in this case pursuant to Hicks v. State, 231 Ga.App. 552, 499 S.E.2d 341 (1998). However, the record reveals that Kittler has waived this issue on appeal by waiting until after his trial was completed to raise the issue. Id.; Troncone v. Troncone, 261 Ga. 662, 663(3), 409 S.E.2d 516 (1991); Bennett v. Jones, 218 Ga.App. 714, 715(1), 463 S.E.2d 158 (1995).
2. Kittler next contends the evidence was insufficient to support his conviction for possession of cocaine with intent to distribute. Viewed in a light most favorable to support the verdict, the evidence shows that an agent with the Cobb County police received information from a previous arrestee that "John" was selling drugs from his girlfriend's apartment. Two agents proceeded to the apartment, identified themselves, and informed the girlfriend of the complaint. The girlfriend gave the agents permission to search the apartment. When the agents located a powdery substance, the girlfriend identified the substance as cocaine.
After she was given Miranda warnings, the girlfriend named Kittler as her source and agreed to help the agents set up a drug buy from Kittler. She paged Kittler, agreed to place a recording device in her ear, and held the phone so that one of the agents could also listen to the conversation when Kittler returned her page. When Kittler called, the girlfriend told him she needed "eight," which means an eight ball and is approximately three grams of cocaine. The girlfriend then said that Kittler would be arriving in approximately 15 minutes and described Kittler to the agents as a black male of a particular height and weight driving a 1993 red Ford Mustang. She also told the agents Kittler would be carrying a weapon.
The agents waited in the parking lot, and approximately 15 minutes later a red Mustang pulled up and a man matching Kittler's description got out of the car and walked to the door. The agents approached him, and Kittler turned to look at them after one of them said "John." The agents identified themselves and patted him down for their safety. During the pat-down, the agents discovered three bags of cocaine in Kittler's left shirt pocket and one bag of marijuana in his right shirt pocket.
Kittler was placed under arrest, read his Miranda warnings, and placed in the agent's car. During questioning, Kittler stated that he "might have a little marijuana at home." He then asked for an attorney and questioning ceased. The agents requested and received a search warrant for Kittler's house. The agents discovered marijuana, cocaine and 12 hits of LSD in the house. They also found a revolver and a semi-automatic weapon. This evidence was sufficient to support the trial judge's finding that Kittler was guilty of possession of cocaine with intent to distribute. While no bright line rule exists regarding the amount or type of evidence sufficient to support a conviction for possession of a controlled substance with intent to distribute, the evidence in the present case shows that the agents were informed by two individuals that Kittler sold drugs, and Kittler arrived at his girlfriend's apartment with three grams of cocaine shortly after she called and told him she needed three grams for someone. In addition, the packaging of the cocaine supports an inference of intent to distribute in that it was packaged in three separate bags.
(Citations and punctuation omitted.) Tillman v. State, 217 Ga.App. 269, 270(1), 457 S.E.2d 228 (1995). The evidence was sufficient to support Kittler's conviction for possession of cocaine with intent to distribute. See id.; Dean v. State, 211 Ga.App. 28(1), 438 S.E.2d 380 (1993).
3. Kittler maintains the trial court erred in denying his motion to suppress drugs found on his person since the search of his person was not reasonable and exceeded the scope of any warrant that could have been authorized by a magistrate. We disagree.
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...challenge appointment under OCGA § 15-1-9.2); Maldonado v. State, 240 Ga.App. 497(1), 523 S.E.2d 917 (1999); Kittler v. State, 234 Ga. App. 120(1), 506 S.E.2d 231 (1998). 2. Contrary to Cammer's remaining enumeration of error, the trial court did not err by failing to give Cammer's requeste......
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Washington v. State
...lacked the authority to do so, he waived this issue by waiting until after his trial concluded to raise the issue. Kittler v. State, 234 Ga.App. 120, 506 S.E.2d 231 (1998); compare Hicks v. State, 231 Ga.App. 552, 553(1), 499 S.E.2d 341 (1998). 4. Washington contends that the court erred in......
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