Neal v. State, A09A0030.

CourtUnited States Court of Appeals (Georgia)
Citation297 Ga. App. 223,676 S.E.2d 864
Docket NumberNo. A09A0030.,A09A0030.
PartiesNEAL v. The STATE.
Decision Date31 March 2009
676 S.E.2d 864
297 Ga. App. 223
NEAL
v.
The STATE.
No. A09A0030.
Court of Appeals of Georgia.
March 31, 2009.

[676 S.E.2d 865]

Dale T. Preiser, for appellant.

Charles Alan Spahos, Solicitor-General, Joseph Lee Stone, Asst. Solicitor-General, for appellee.

JOHNSON, Presiding Judge.


A jury found Dwight Emerson Neal, Jr. guilty of obstructing a law enforcement officer and possessing less than one ounce of marijuana based on events occurring on October 17, 2007. The same jury found him not guilty of an additional count of possessing less than one ounce of marijuana based on events occurring on February 23, 2008. Neal appeals his convictions, alleging that the trial court erred in (i) denying his motion to sever the charges arising out of the separate events, (ii) allowing the state to introduce evidence of three similar transactions, and (iii) revoking his appearance bond without sufficient notice or opportunity to be heard. Finding no error, we affirm.

Viewed in the light most favorable to the verdict,1 the record shows that on October 17, 2007, agents with the Henry County Police Department Narcotics Division were conducting surveillance at an apartment complex when they observed two men at a picnic table passing a lit cigarette back and forth. As the agents approached the men, they smelled the odor of burnt marijuana. After one of the agents identified himself as a police officer, one of the men fled the scene and did not comply with the agent's orders to stop. The man who remained at the scene identified the fleeing suspect as Neal, although he denied that they had been smoking marijuana. However, the agents found a partially-smoked marijuana cigarette in the area of the picnic table.

On February 23, 2008, a deputy with the Henry County Police Department initiated a traffic stop on a van in which Neal was riding as a passenger. As the officer approached the van, he smelled the odor of burnt marijuana. After the deputy ordered the driver and Neal to get out of the van, both the driver and Neal admitted that they had smoked marijuana earlier in the day. A search of the van yielded a set of scales and a baggie containing a small amount of marijuana in the center console between the driver and passenger seats.

The trial court, after conducting a hearing and making the findings required by Williams v. State,2 permitted the state to present evidence of three similar transactions. In each of these transactions, Neal was convicted of possessing less than one ounce of marijuana. In 2001, Neal pled guilty to marijuana possession in Clayton County after a small amount of marijuana was found in his vehicle by officers responding to an accident scene. A set of scales was discovered near the vehicle, and an officer testified that Neal threw the scales out his vehicle window. In 2006, a jury found Neal guilty of marijuana possession in Henry County after police officers discovered him, along with two other men, in an apartment where marijuana residue and a partially burnt marijuana cigarette were found. Also in 2006, Neal pled guilty to marijuana possession in Henry County after police responding to a residential smoke alarm discovered ashtrays with marijuana residue and a small amount of marijuana in Neal's pocket.

At trial, the jury was instructed that evidence of the prior convictions was being admitted solely for the limited purpose of showing Neal's course of conduct and bent of mind. The jury convicted Neal of the charges arising out of the October 17, 2007 incident, but it acquitted him of the charge arising out of the February 23, 2008 incident.

1. Neal first claims that the trial court erred in denying his motion to sever the charges arising out of the separate events. According to Neal, these charges were joined solely because they were of a similar character. We disagree.

While a defendant has an "absolute right to severance" when offenses are joined solely because they are of the same or similar character,3 the Supreme Court of Georgia

676 S.E.2d 866

has established that a trial court need not sever offenses that are "so similar that evidence of one would be admissible ... in the trial of the other ... to show a common motive, plan, scheme, or bent of mind."4 In such a circumstance, "the decision whether to sever falls within the discretion of the trial court, which should [consider] whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense."5

Here, evidence of the October 2007 incident would have been admissible in a separate trial for possession of marijuana related to the February 2008 incident to...

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    • United States
    • United States Court of Appeals (Georgia)
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