Moody v. State

Citation502 S.E.2d 323,232 Ga. App. 499
Decision Date07 May 1998
Docket NumberNo. A98A1059.,A98A1059.
PartiesMOODY v. The STATE.
CourtUnited States Court of Appeals (Georgia)

OPINION TEXT STARTS HERE

William O. Cox, Savannah, for appellant.

Spencer Lawton, Jr., District Attorney, George R. Asinc, Assistant District Attorney, for appellee.

ELDRIDGE, Judge.

Following a July 1996 jury trial, the defendant, Sylvester Moody, was convicted of possession of cocaine under OCGA § 16-13-30(a) and sentenced to fifteen years imprisonment, with eight to serve. He appeals his conviction and we affirm.

The facts are as follows: at approximately 3:00 p.m. on February 2, 1996, the Savannah-Chatham Counter Narcotics Team (CNT) executed a search warrant, predicated on three previous controlled drug buys, at 116-a Garden Homes, Savannah. The CNT agents were dressed in vests bearing the words "Police" in large letters and each had a police badge on a chain around his neck in plain view. As the CNT agents approached the front door of the apartment, they yelled "police with a search warrant." Moody, who was standing inside a screen door, slammed the inner metal door in the agents' faces. The front door was then locked, and Moody attempted to flee out the back door, which was blocked by CNT agents. The agents repeatedly yelled out "police, police, stop." Moody turned, threw a gun and some drugs on the floor, and ran upstairs, where he eventually was found hiding in a bedroom closet.

In the apartment, the CNT seized almost 100 grams of crack cocaine. Some of the cocaine was found on the kitchen counter and in a bottomless Ajax cleanser can. However, cocaine also was scattered on the kitchen floor near the back door where Moody had attempted to escape. In addition, the CNT seized a "very large" Glock .40 caliber pistol, "thousands" of empty small plastic baggies of the type used to package cocaine, as well as a bottle of inositol (or isotol), a cocaine cutting agent. Moody was searched and was found to be carrying $1,090 in cash and a pager.

The CNT arrested Moody and Michelle Massey, the apartment's lessee. Massey claimed that she had left work and arrived at the apartment just before the arrest. This claim was corroborated by employment pay records and by the woman who gave her a ride home from work. Massey also disavowed any knowledge that drugs or firearms were in the apartment.

Moody claimed that he had arrived at the apartment shortly before the arrest, and was only there to use the phone. It is undisputed that Moody was a visitor to the apartment.

Moody was indicted on two counts of trafficking in cocaine, OCGA § 16-13-31(a), and one count of possession with intent to distribute, OCGA § 16-13-30(b).1 Following a jury trial, Moody was acquitted of these charges, but convicted of the lesser included offense of possession of cocaine. It is from this conviction that Moody appeals.

1. In his first enumeration of error, Moody contends that the trial court erred in sustaining the State's motion in limine to exclude evidence regarding controlled drug buys at the apartment prior to his arrest. These drug buys were used as the basis upon which to secure the search warrant executed in this case. Moody argues that testimony regarding the previous drug buy would prove that drugs were present in the apartment before he arrived on February 2, 1996. Although it is not clear from his brief, Moody apparently contends that others brought the cocaine to the apartment and that his mere proximity to the cocaine is insufficient to prove his guilt of possession beyond a reasonable doubt.

At the outset, it is unnecessary to decide whether such evidence was relevant to the charges upon which Moody was indicted, since Moody was acquitted of the trafficking and possession with intent charges. He was convicted, instead, of simple possession. Accordingly, we must decide only whether such evidence was relevant and admissible regarding the issue of whether Moody "purchase[d], possess[ed], or [had] under his control any controlled substance" while in the apartment at the time of his arrest. OCGA § 16-13-30(a). If so, we must determine whether such evidence was wrongly excluded by the trial court. "Possession of contraband may be actual or constructive. Moreover, joint constructive possession with another will sustain a conviction for possession of contraband. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. 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." (Citations and punctuation omitted.) Allen v. State, 191 Ga.App. 623, 624(2), 382 S.E.2d 690 (1989). Such intent to exercise control can be inferred by the totality of the circumstances, including the presence of large amounts of contraband and drug paraphernalia in plain view, inconsistent explanations by the defendant for his behavior, and the defendant's attempt to flee or hide from police. See Allen v. State, supra at 625, 382 S.E.2d 690; see also Petty v. State, 221 Ga.App. 125, 470 S.E.2d 517 (1996); Hicks v. State, 195 Ga.App. 887, 395 S.E.2d 341 (1990).

However, this Court recognizes the long-standing rule that "[a] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction." (Citations and punctuation omitted.) Paden v. State, 216 Ga.App. 188, 189, 453 S.E.2d 788 (1995).

Further, "where a conviction for possession of contraband depends entirely on circumstantial evidence, it must both be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. Ennis v. State, 130 Ga.App. 716, 717(2), 204 S.E.2d 519 (1974)." (Punctuation omitted; emphasis supplied.) Paden v. State, supra at 189, 453 S.E.2d 788; see also Hicks v. State, supra. "Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused, is primarily a question for determination by the jury... After having heard the witnesses and having observed them testify, they are more capable of judging of the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, and the defendant's statement, than is a court of law." (Citations and punctuation omitted; emphasis supplied.) Harris v. State, 236 Ga. 242, 244-245(1), 223 S.E.2d 643 (1976).

In this case, Massey, the co-defendant, pled guilty and testified that she saw Moody throw the pistol near the pantry and cocaine on the floor before he ran upstairs to hide. However, in addition to this direct evidence of actual possession, the State also presented circumstantial evidence to show his constructive possession of the cocaine. Specifically, this circumstantial evidence included the presence of large amounts of cocaine and drug paraphernalia, as well as a Glock .40 caliber pistol, in plain view. Several witnesses also testified regarding Moody's extensive attempts to interfere with the execution of the search warrant, to flee the apartment, and to elude police by hiding in an upstairs bedroom. As previously noted, such actions constitute evidence of Moody's consciousness of guilt and of his intention to exercise control over the contraband. See OCGA § 16-2-6; Hurston v. State, 202 Ga.App. 311, 414 S.E.2d 303 (1991); Scott v. State, 193 Ga.App. 74, 387 S.E.2d 31 (1989); Travis v. State, 192 Ga. App. 695, 696, 385 S.E.2d 779 (1989); Stafford v. State, 187 Ga.App. 401, 370 S.E.2d 646 (1988); Prather v. State, 116 Ga.App. 696, 158 S.E.2d 291 (1967).

This evidence also directly conflicts with Moody's assertion that he was at the apartment simply to use the telephone, an explanation that obviously was rejected by the jury. Although Moody claims to have been at the apartment only two minutes prior to the execution of the warrant, Massey testified that he was there when she got home from work several minutes before the agents arrived. Even though approximately ten CNT agents surrounded the apartment, not one saw Moody enter the apartment immediately prior to the raid.

Such evidence distinguishes this case from the cases cited by Moody in which the defendants presented reasonable explanations for their behavior that were not excluded by the circumstantial evidence. See Paden v. State, supra at 190, 453 S.E.2d 788; Farmer v. State, 152 Ga.App. 792, 793, 264 S.E.2d 235 (1979) (holding that evidence was insufficient to prove possession when there was no paraphernalia or attempt to flee and when the defendants were "polite and cooperative, even helpful").

Moody's attempts to avoid arrest and the presence of contraband in plain view also distinguish this case from those in which the circumstantial evidence did not exclude the possibility that someone else had equal access to the premises and had brought the contraband to the premises without the defendant's knowledge. See Ivey v. State, 226 Ga. 821, 824(4), 177 S.E.2d 702 (1970); Reid v. State, 212 Ga.App. 787, 442 S.E.2d 852 (1994); Ennis v. State, supra at 717, 204 S.E.2d 519. Massey's testimony supports a finding that Moody knew about the drugs and, at a minimum, jointly possessed the drugs.

Finally, even if evidence had been presented that others had access to the apartment and had previously brought drugs to the apartment, such evidence does not preclude a finding that Moody was in joint constructive possession of the cocaine on the day of his arrest. "The evidence [that previous controlled drug buys had taken place at the apartment] did not logically tend to prove or disprove either that [a] third party committed [this] crime or that [Moody] did not commit [this] crime. The evidence offered would have served merely to divert the jury's...

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  • Hill v. State
    • United States
    • Georgia Court of Appeals
    • 25 Junio 2021
    ...of [a defendant]’s consciousness of guilt and of his intention to exercise control over the contraband."6 Moody v. State , 232 Ga. App. 499, 502 (1), 502 S.E.2d 323 (1998). See also Duncan v. State ,7 346 Ga. App. 777, 781 (1), 815 S.E.2d 294 (2018) (defendant's behavior in refusing to answ......
  • Thomas v. State
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    ...and therefore, lacks standing to challenge the validity of a search. Brown v. State, supra at footnote 2; Moody v. State, 232 Ga.App. 499, 504(4)(a), 502 S.E.2d 323 (1998). Even assuming that prior to the searches at issue, Thomas had been lawfully at the townhouse, the evidence was that th......
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    ...the validity of the search warrant of another's property, even though that search resulted in the visitor's arrest. Moody v. State, 232 Ga.App. 499, 504(4)(a), 502 S.E.2d 323 (1998). See also Womble v. State, 290 Ga.App. 768, 769(1), 660 S.E.2d 848 (2008).Finally, the Georgia Supreme Court'......
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