Reyes v. State

• Decision Date: 28 June 2013
• Docket Number: No. A13A0174.,A13A0174.
• Citation: 745 S.E.2d 738,322 Ga. App. 496
• Parties: REYES v. The STATE.
• Court: Georgia Court of Appeals

322 Ga.App. 496

745 S.E.2d 738

REYES

v.The STATE.

No. A13A0174.

Court of Appeals of Georgia.

June 28, 2013.

Frances C. Kuo, for Appellant.

Elizabeth A. Baker, Tracy Graham Lawson, for Appellee.

ANDREWS, Presiding Judge.

Gerardo Reyes appeals from the judgment of conviction entered on a jury verdict finding him guilty of trafficking in methamphetamine in violation of OCGA § 16–13–31(e).For the following reasons, we affirm.

1.Contrary to Reyes's contention, the evidence was sufficient to support the guilty verdict.

The State presented the following evidence.A police officer attempting to serve an arrest warrant at a residence saw a man sitting in the front driver's seat of a car parked in front of the residence.The man in the car was later identified as Reyes.Because Reyes resembled the person the officer was attempting to serve, the officer walked toward the car to speak to Reyes.The officer saw that Reyes had a blanket in his hand and heard him cry out in a nervous and agitated manner as he approached.Before the officer said anything, Reyes stated, “I can't go to jail, can you guys give me a break.”The officer saw that a rear window in the car had been broken out, and he saw Reyes put the blanket on the front passenger seat.When he reached the car, the officer saw what appeared to be the tip of a gun protruding from under the blanket on the front passenger seat.The officer ordered Reyes to get out of the car, and as he got out, the officer saw another gun on the driver's floorboard.In a search of the car, the officer found a handgun under the blanket on the front seat and another handgun on the driver's floorboard.In the search, the officer also found suspected methamphetamine concealed in a bag in a fold of the blanket that Reyes held in his hand and placed on the seat.As the officer picked up the blanket, Reyes spontaneously told the officer that the blanket was a birthday gift for his baby.Reyes also had $905 cash on his person.Evidence showed that Reyes did not own the car.The officer, who had training and experience relating to illegal narcotics, testified that the amount of the suspected methamphetamine had a street value of about $10,000.A forensic chemist from the State Crime Lab testified that he tested and weighed the suspected methamphetamine, and that it tested positive for methamphetamine and weighed 33.50 grams.

In his defense, Reyes testified that his father was the landlord at the residence; that he was there to “fix some pipes” and to collect the rent; and that the cash on his person was the collected rent money.Reyes said that the car “wasn't moveable”; that it belonged to “[t]he guy that lives there”; and that he had been in the car for about ten minutes before the officer arrived because “the guy there” asked him to fix the car's radio.Reyes said that nothing in the car belonged to him, and that he had no knowledge that any methamphetamine was in the car.He said that he had no recollection of a blanket in the car and never held a blanket in his hand, and he denied making any statements to the officer.

On appeal from his criminal conviction, Reyes is no longer entitled to the presumption of innocence, and the evidence is viewed in a light most favorable to the guilty verdict.Parker v. State,220 Ga.App. 303, 469 S.E.2d 410(1996).Viewed in favor of the guilty verdict, the evidence, direct and circumstantial, showed that Reyes had either actual or constructive possession of the methamphetamine.

[T]he law recognizes that possession can be actual or constructive ... A person has actual possession of a thing if he knowingly has direct physical control of it at a given time.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.

Holiman v. State,313 Ga.App. 76, 78, 720 S.E.2d 363(2011)(punctuation and citations omitted).“A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where, as here, the contraband is hidden.”Mitchell v. State,268 Ga. 592, 593, 492 S.E.2d 204(1997).Moreover, “[e]vidence 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.”Whipple v. State,207 Ga.App. 131, 132, 427 S.E.2d 101(1993)(punctuation and citation omitted).

The evidence showed more than Reyes's mere presence at the scene of the crime or mere spatial proximity to the methamphetamine.When the officer approached the car, Reyes was holding a blanket in his hand which he then placed down on the front passenger seat of the car.Reyes admitted that the blanket belonged to him; told the officer “I can't go to jail”; and asked the officer to “give me a break.”The officer immediately discovered methamphetamine hidden in a fold of the blanket.This was evidence sufficient to allow the jury to conclude that Reyes was in actual possession of the methamphetamine when the officer approached the car, and that Reyes subsequently hid the methamphetamine by placing it in a fold of the blanket as he put the blanket on the adjacent seat.These circumstances linked Reyes to the methamphetamine hidden in the blanket on the seat and showed that he retained constructive possession with both the power and intention to exercise dominion or control over the methamphetamine.Evidence also showed that the State Crime Lab confirmed that the substance found in the blanket was methamphetamine weighing 33.50 grams, and that it had a street value of $10,000.As to the circumstances showing that Reyes knowingly had constructive possession of the methamphetamine, the proved facts were not only consistent with the hypothesis of guilt, but excluded every reasonable hypothesis save that of guilt.OCGA § 24–4–6.The evidence was sufficient for the jury to find beyond a reasonable doubt that Reyes knowingly had actual or constructive possession of 28 grams or more of methamphetamine, or a mixture containing methamphetamine, and was therefore guilty of trafficking in methamphetamine in violation of OCGA § 16–13–31(e).Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Reyes claims the trial court erred by failing to give his orally requested jury instruction on “mere presence” because this was his “sole defense.”

A trial court is required to instruct the jury sua sponte on a defendant's “sole defense” if supported by some evidence.Tarvestad v. State,261 Ga. 605, 606, 409 S.E.2d 513(1991).But the rule that “mere presence” at the scene of a crime is insufficientto convict was not Reyes's “sole defense” because “mere presence” is not recognized as a separate and discrete defense to a criminal charge.Muhammad v. State,243 Ga. 404, 406, 254 S.E.2d 356(1979).Rather, the “mere presence” rule “is really a corollary to the requirement that the state prove each element of the offense charged.”Id.;seeState v. Johnson,280 Ga. 511, 513 n. 3, 630 S.E.2d 377(2006)(“equal access” by others to defendant's car was not “sole defense”; properly viewed, the defense was that the State failed to prove the elements of the charged offense).The trial court correctly instructed the jury on the State's duty to prove each element of the charged offense beyond a reasonable doubt, and fully instructed the jury on the law of circumstantial evidence.Under these circumstances, the trial court did not err by failing to charge on “mere presence.”Muhammad,243 Ga. at 406, 254 S.E.2d 356;Parker v. State,270 Ga. 256, 258, 507 S.E.2d 744(1998), overruled on other grounds, Linson v. State,287 Ga. 881, 886, 700 S.E.2d 394(2010).

[322 Ga.App. 499]3.Reyes contends that the trial court erred by failing to sua sponte give a jury instruction on the rebuttable presumption that methamphetamine found hidden in the car was in the exclusive possession of the car's owner.

Citing to Walden v. State,196 Ga.App. 844, 397 S.E.2d 182(1990), Reyes claims that he was entitled to this instruction as part of his “sole defense” that he was not the owner or driver of the car; that he was “merely present” in the car to fix the radio for the owner; and that he had no knowledge that methamphetamine was in the car.In Walden, a car passenger was charged with constructive possession of cocaine found in a car also occupied by the driver/owner and another passenger.Id. at 844, 397 S.E.2d 182.All three occupants were jointly charged with cocaine trafficking based on possession of the cocaine found in the car.Id.Walden found that the passenger's “sole defense” was that he was a “mere passenger in the car” without actual or constructive possession of the cocaine, and that to adequately present this defense to the jury the passenger was entitled to jury instructions: (1) that a rebuttable presumption existed that the driver/owner had exclusive possession of the cocaine in the car; and (2) that evidence showing that a person or persons other than the driver/owner had equal access to the cocaine in the car may or will, depending on the strength of the evidence, overcome the presumption that the cocaine was in the exclusive possession of the driver/owner.Id. at 844–845, 397 S.E.2d 182;seeCastillo v. State,166 Ga.App. 817, 821–822, 305 S.E.2d 629(1983)(setting forth the “rebuttable presumption” and “equal access” rules in the context of automobiles).We find that Walden wrongly decided that the accused passenger was entitled to jury instructions on the “rebuttable presumption” and the “equal access” rule as part of the passenger's “sole defense” of “mere presence.”

Where an owner or driver of an automobile has exclusive possession of the automobile, the inference is that the owner or driver has exclusive possession of contraband found in the automobile.Farmer v. State,152 Ga.App. 792, 794–797, 264 S.E.2d 235(1979...