Poteet v. State

• Decision Date: 07 January 2021
• Docket Number: A20A1728
• Citation: 853 S.E.2d 671,358 Ga.App. 82
• Parties: POTEET v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 82

853 S.E.2d 671

POTEET

v.The STATE.

A20A1728

Court of Appeals of Georgia.

January 7, 2021

Richard K. Murray, for Appellant.

Benjamin Bruce Kenemer, Herbert McIntosh Poston Jr., Geoffrey Scott Bard, for Appellee.

Hodges, Judge.

A jury convicted Mari Wilene Poteet of possession of methamphetamine ( OCGA § 16-13-30 (a) ). Poteet appeals, contending that the evidence against her is insufficient to sustain her conviction and that her trial counsel was ineffective. For the reasons that follow, we agree that the evidence is insufficient and we reverse her conviction.

"On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict." (Citation omitted.) Walker v. State , 349 Ga. App. 188, 825 S.E.2d 578 (2019).

So viewed, the evidence shows that, following a controlled buy of methamphetamine from Douglas Cathey by a confidential informant, police executed a search warrant for Cathey's home. Poteet was inside Cathey's home at the time. During the search of the home, police located a glass pipe inside a flower pot. The pipe tested positive for methamphetamine. The pipe also had a red tint on it that looked to the police officers like residue from red or purple lipstick. Both Cathey and Poteet denied ownership of the pipe. When police and a parole officer at the scene asked Poteet if she would pass a drug test for methamphetamine, she responded that she did not know if she would. Specifically, Poteet told them that she used methamphetamine approximately three days prior.

Importantly, no evidence was introduced that the pipe had been tested for finger prints or DNA, or that the reddish substance on the pipe was tested to confirm if it was lipstick. There was also not evidence that Poteet owned any lipstick, nor that any lipstick was found in the search of Cathey's home. Lastly, there was no evidence that the pipe had been recently smoked.

Poteet was arrested and indicted for possession of methamphetamine. Following a jury trial, she was convicted. The trial court denied Poteet's motion for new trial, as amended, and she now appeals.

1. Poteet contends the evidence against her is insufficient to sustain her conviction.¹ We agree.

It is well-settled that

[w]hen an appellant challenges the sufficiency of the evidence to support [her] conviction, the relevant question is whether, after viewing 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. The appellant no longer enjoys a presumption of innocence, and an appellate court determines only the legal sufficiency of the evidence and does not weigh the evidence or assess the credibility of the witnesses.

(Citations and punctuation omitted.) Armstrong v. State , 298 Ga. App. 855, 856 (1), 681 S.E.2d 662 (2009). However, even under this forgiving standard, "the State is required to produce evidence of some meaningful connection between the defendant and the contraband." (Citation and punctuation omitted.) Brown v. State , 285 Ga. App. 330, 331, 646 S.E.2d 273 (2007).

Poteet was convicted for possession of methamphetamine as a result of the pipe with drug residue being found in the flower pot in Cathey's residence.

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. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.

(Citation and punctuation omitted.) Blount v. State , 181 Ga. App. 330, 332 (2), 352 S.E.2d 220 (1986). Under Georgia law, although

[p]ossession [of drugs] may be constructive, ... spatial proximity alone is insufficient to prove constructive possession of contraband. Mere presence, without proof of participation, is insufficient to support a conviction. Rather, the State must show that [Poteet] had the power and intent to exercise control over the [drugs].

(Citations and punctuation omitted.) Brown , 285 Ga. App. at 331, 646 S.E.2d 273. Indeed,

[a] connection can be made between a defendant and contraband found in [her] presence by evidence which shows that the contraband was discovered on premises occupied and controlled by the defendant with no right of equal access and control in others. Such occupation and control may be inferred when the accused is the owner or tenant of the premises upon which the illicit drugs are discovered. However, a mere occupant, as distinguished from a resident, does not necessarily have the requisite control over the premises to authorize the inference that [she] possesses all property found thereon. If such were the case, a person's mere presence at the scene of the discovery of illegal drugs would authorize [her] conviction, and that plainly is not the law.

(Citation omitted.) Id. at 331-332, 646 S.E.2d 273.

As no direct evidence connects [Poteet] to the [pipe with methamphetamine residue] found in the [flower pot in Cathey's residence], if [her] conviction for possession of [methamphetamine] is to be sustained it must be based upon circumstantial evidence. When a conviction depends entirely on circumstantial evidence, however, the circumstantial evidence must be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis.

Morrison v. State , 220 Ga. App. 151, 153 (1) (a), 469 S.E.2d 686 (1996).

Here, it is undisputed that Poteet was not in actual possession of the drugs, which were found inside of a flower pot in a residence which is neither owned nor occupied by Poteet. The evidence relied upon by the State to connect Poteet to the drugs on the pipe, other than her presence in the residence where it was located, is the presence of a substance which may or may not be lipstick residue on the pipe, Poteet's gender, and Poteet's admission that she smoked methamphetamine recently enough that she might fail a drug screen. That is all.

There is no evidence that the residue on the pipe is actually lipstick. Even if we assume the residue is lipstick, there is no evidence that Poteet owned any lipstick, let alone the particular lipstick found on the pipe. The...