Rainey v. State

• Court: Georgia Court of Appeals
• Writing for the Court: MILLER
• Citation: Rainey v. State, 319 Ga. App. 858, 738 S.E.2d 685 (Ga. App. 2013)
• Decision Date: 22 February 2013
• Docket Number: No. A12A1828.,A12A1828.
• Parties: RAINEY v. The STATE.

319 Ga.App. 858

738 S.E.2d 685

RAINEY

v.The STATE.

No. A12A1828.

Court of Appeals of Georgia.

Feb. 22, 2013.

Mark Andrew Begnaud, H. Bradford Morris Jr., Gainesville, for Appellant.

Scott L. Ballard, Jeremy Mathew Hayes, Robert Wright Smith Jr., for Appellee.

MILLER, Presiding Judge.

Following a jury trial, Kenneth Shamar Rainey was convicted of criminal attempt to traffic in cocaine (OCGA §§ 16–13–31(a)(1), 16–13–33), criminal attempt to traffic in marijuana (OCGA §§ 16–13–31(c), 16–13–33), and possession of a firearm during the commission of a crime (OCGA § 16–11–106(b)(5)). The trial court denied Rainey's motion for new trial. On appeal, Rainey contends that (i) the evidence was insufficient to sustain his convictions; (ii) the trial court erred in admitting hearsay evidence; and, (iii) his trial counsel provided ineffective assistance by failing to object to inadmissible hearsay evidence. We discern no error and affirm.

“On appeal from a criminal conviction, we no longer presume the defendant is innocent, and we view the evidence in the light most favorable to the jury's verdict.” (Citation omitted.) Green v. State, 298 Ga.App. 17, 18, 679 S.E.2d 348 (2009).

So viewed, the trial evidence shows that on June 13, 2007, an undercover officer assigned to the Fayette County Drug Suppression Task Force received information from an informant that an individual named “Braids” was interested in purchasing twenty-five pounds of marijuana. Using the information supplied by the informant, the officer, posing as a drug dealer, contacted “Braids” and made arrangements for the drug transaction. During the course of their discussions, “Braids” also negotiated to purchase one kilogram of cocaine from the officer. “Braids” and the officer agreed to meet later that afternoon at a gas station located in Fayette County.

The officer arranged to have the meeting recorded by audio and videotape. After arriving at the designated location, “Braids” confirmed that he was present at the gas pumps and then pulled his vehicle beside the officer's vehicle. The officer observed that the vehicle had three occupants, who were later identified as Rainey and his co-conspirators, James Riley Ponder and Randy Wayne Sims. Ponder drove the vehicle; Sims occupied the front passenger seat; and, Rainey occupied the back passenger seat. The officer identified Ponder as being “Braids” since he matched the description given by the informant.

Rainey's co-conspirator, Sims, approached the officer's vehicle and examined the drugs for the transaction. The officer cut open the packaging and displayed the twenty-five pound brick of marijuana and the compressed kilogram of cocaine. Sims tested a sample of the cocaine and gave his approval, stating “everything's good.”

The officer then asked to see the money for the transaction. The officer followed Sims to the rear passenger side of the vehicle, where Rainey was waiting. Upon receiving Sims's instruction, Rainey opened a t-shirt and showed the officer a bundle of money. Rainey also pulled another stack of money from the waistband of his pants and showed it to the officer. Rainey and his co-conspirators advised the officer that they had more money, but insisted that the officer follow them to a dealership in Union City to complete the drug transaction because they did not feel comfortable at the present location.

The officer refused to leave the Fayette County jurisdiction to make the drug transaction. At that time, the officer instead gave his fellow undercover officers a verbal signal to move in and effect the arrests of Rainey and his co-conspirators.

Following the arrests, the officers searched the vehicle that Rainey and his co-conspirators had occupied. During a search of the back passenger seat where Rainey had been seated, the officers found a loaded .40 caliber semi-automatic pistol. An officer testified that the pistol was loosely placed under the seat cushion in a manner that caused the cushion to curve up, and that the pistol was easily accessible and noticeable. The officers also recovered $8,602 from inside the vehicle.

Rainey and his co-conspirators were jointly charged with the offenses of attempted trafficking in cocaine and marijuana. Rainey was separately charged with the offense of possession of a firearm during the commission of a crime. Prior to trial, Rainey's co-conspirators pled guilty to the drug offenses. Rainey proceeded to trial. During the trial, the videotape depicting the attempted drug transaction was admitted into evidence and was shown to the jury. The jury found Rainey guilty of the drug and weapon offenses.

1. Rainey contends that evidence was insufficient to sustain his convictions. We disagree.

(a) Attempted Trafficking in Cocaine and Marijuana.

An individual commits the offense of attempt when with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime. The act must be more than mere preparation, but it can not accurately be said that no preparations can amount to an attempt. The question, then, is one of degree, depending upon the circumstances of each case.

(Punctuation and footnotes omitted.) Davenport v. State, 308 Ga.App. 140, 143(1)(a), 706 S.E.2d 757 (2011). Here, Rainey was charged with attempted trafficking in cocaine, which required proof that he attempted to knowingly possess 28 grams or more of cocaine or any mixture with a purity of 10 percent or more of cocaine. See OCGA §§ 16–13–31(a)(1) (defining trafficking in cocaine), 16–13–33 (defining criminal attempt). Rainey also was charged with attempted trafficking in marijuana, which required proof that he attempted to knowingly possess a quantity of marijuana exceeding 10 pounds. See OCGA §§ 16–13–31(c) (defining trafficking in marijuana), 16–13–33 (defining criminal attempt).

Under Georgia law, a defendant is culpable for the consequences of his co-defendant's acts under the theory of conspiracy if he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.

A conspiracy is an agreement between two or more persons to do an unlawful act, and the existence of a conspiracy may be established by proof of acts and conduct, as well as by proof of an express agreement. When persons associate themselves in an unlawful enterprise, any act done by any party to the conspiracy to further the unlawful enterprise is considered to be the act of all the conspirators.

(Citations and punctuation omitted.) Johnson v. State, 299 Ga.App. 706, 707–708(1)(a), 683 S.E.2d 659 (2009). “Presence, companionship and conduct before and after the commission of the alleged offenses may be considered by the jury and are circumstances which may give rise to an inference of the existence of a conspiracy.” (Citations and punctuation omitted.) Burnette v. State, 241 Ga.App. 682, 683–684(1), 527 S.E.2d 276 (1999).

Likewise, a defendant may be convicted as a party to a crime if he intentionally aids and abets the commission of a crime. See Johnson, supra, 299 Ga.App. at 708(1)(a), 683 S.E.2d 659. “Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime.” (Citations and punctuation omitted.) Id.

Based upon the evidence of Rainey's companionship and conduct during the attempted drug transaction, the jury was authorized to find that Rainey had engaged in a conspiracy with Ponder and Sims to commit the drug offenses. The trial evidence established that Rainey and his co-conspirators had arranged and attempted to purchase one kilogram, which exceeded 28 grams, of cocaine from the undercover officer. Rainey and his co-conspirators also had attempted to purchase twenty-five pounds of marijuana from the undercover officer during the same transaction. The trial evidence further showed that Rainey took substantial steps and actively participated as a party to the attempted drug offenses by traveling with his co-conspirators to meet the undercover officer at the designated location and at the arranged time for the purpose of conducting the transaction, and by showing the undercover officer bundlesof money to be used toward the drug purchases.

During the attempted drug transaction, Rainey's co-conspirator examined and approved the packages of cocaine and marijuana. Subsequent testing confirmed that the drug substance in one of the packages was cocaine with a purity of 76.4 percent and weighing approximately 991.48 grams. Testing also confirmed that the drug substance in the other package was marijuana weighing approximately 29 pounds.

Based upon the combined evidence, including Rainey's active participation in the conspiracy to purchase the large quantities of cocaine and marijuana, the jury was authorized to find Rainey guilty beyond a reasonable doubt of the attempted trafficking in cocaine and marijuana offenses. See Green, supra, 298 Ga.App. at 20–22(1), 679 S.E.2d 348 (affirming a defendant's conviction for attempted trafficking in marijuana based upon evidence that he provided money to purchase the drugs and accompanied his co-defendants to the arranged location for the drug deal, which established his participation as a party to the crime); Toney v. State, 304 Ga.App. 25, 29(3), 695 S.E.2d 355 (2010) (affirming a defendant's attempted drug trafficking conviction based upon evidence that he had met the undercover agent and paid funds to purchase a large quantity of drugs).

(b) Possession of a Firearm During the Commission of a Crime. Rainey further contends that the evidence was insufficient to support his conviction for possession of a firearm during the commission of a crime. Again, we disagree.

“Any person who shall have on or within arm's reach of his or her person a firearm ... during the commission of, or the attempt to...