Rogers v. State

• Decision Date: 10 July 2009
• Docket Number: No. A09A0539.,A09A0539.
• Citation: Rogers v. State, 681 S.E.2d 693, 298 Ga. App. 895 (Ga. App. 2009)
• Parties: ROGERS v. The STATE.
• Court: Georgia Court of Appeals

681 S.E.2d 693

298 Ga. App. 895

ROGERS v. The STATE.

No. A09A0539.

Court of Appeals of Georgia.

July 10, 2009.

Teresa L. Smith, for appellant.

W. Kendall Wynne Jr., District Attorney, Layla H. Zon, Assistant District Attorney, for appellee.

SMITH, Presiding Judge.

Greg Rogers appeals from his convictions for possession of methamphetamine with intent to distribute, two counts of selling methamphetamine, and four counts of using a communication device to commit or facilitate the commission of a designated felony under OCGA § 16-13-32.3.¹ Rogers raises nine enumerations of error. Because Rogers correctly asserts that the State failed to prove venue with regard to three of his convictions for violating OCGA § 16-13-32.3, we must reverse those convictions.² We must also reverse his conviction for selling methamphetamine on September 29, 2003, based upon an error in the trial court's recharge to the jury.³ His remaining convictions are affirmed for the reasons set forth below.⁴

The record shows that the jury convicted Rogers for selling methamphetamine on September 25, 2003 (Count 2), selling methamphetamine on September 29, 2003 (Count 3), possessing methamphetamine with intent to distribute on September 25, 2003 (Count 4), and using a communication facility in violation of OCGA § 16-13-32.3 on September 23, 2003 (Count 5), September 24, 2003 (Count 6), September 25, 2003 (Count 7), and September 29, 2003 (Count 8).⁵ Only the evidence related to these convictions will be recounted below.

A confidential informant testified that in a meeting with Agent Bruno, a law enforcement officer assigned to a multi-jurisdiction drug task force,⁶ she agreed to work on a case against Rogers, whom she knew from high school. Shortly before agreeing to work on this case, the informant had sexual relations with Rogers, and he had provided her with methamphetamine "at his cost."

On September 23, 2003, the informant discussed arrangements to "pick up dope" in telephone calls with Rogers and his friend Brandon McDonald.⁷ The informant testified that she dropped off money for the drugs at McDonald's home and picked up the methamphetamine in a Save Rite parking lot the next day. The informant testified that she talked on the telephone with Rogers on September 24, 2003 to make arrangements to pick up the methamphetamine she had paid for the day before.

The State presented evidence that McDonald lived at 702 Emory Street, approximately five minutes away from Rogers. Bruno testified that the events relating to the methamphetamine sale on September 23 and 24, 2003, took place in Newton County. There is no information in the record about the location of the confidential informant during these phone calls. There is some evidence that Rogers and McDonald were "en route from Conyers [Rockdale County]" and on their way to meet the informant "at Save Rite" during the telephone call on September 24, 2003.

On September 25, 2003, the informant went to Rogers's home to bring him $205 for the purchase of methamphetamine. The informant testified that Rogers gave her some methamphetamine "to hold [her] over until he got the dope" and promised to get it to her "that same night." In a later telephone conversation on September 25, 2003, Rogers explained to the informant that "he was going to go through another source to pick up the dope." In a second phone call on September 25, Rogers told the informant he was driving from "where he picks the dope up" in Cobb County. She then met Rogers at the post office in Oxford (Newton County) and picked up methamphetamine that had been packaged in two separate bags.

The informant testified that Rogers lived with his parents "at Stone Leigh" in Covington. Bruno testified that the incidents relating to the sale on September 25, 2003, took place in Newton County. There is no other information in the record about the location of Rogers and the confidential informant during their phone calls on September 25, 2003.

On September 29, 2003, the informant spoke with Rogers on the telephone and threatened to "put a bullet between [her] eyes" if she ended "up being the bust woman." In the evening on September 29, she took money to McDonald's house to pay for methamphetamine that would later be delivered by Rogers. When Rogers's car broke down, he called the informant to tell her that McDonald would be delivering the drugs to her at a Save Rite parking lot in Covington. McDonald testified that he and Rogers "drove back to Newton County and met [the informant] at this Save Rite." The informant testified that she received the drugs around "1:00 or 2:00 the next morning," which would have been September 30, 2003.

At one point in Bruno's testimony, however, he asserted that he searched and debriefed the informant after the "purchase on the 29th" and that he received the methamphetamine from the informant "on the 29th." Finally, Bruno testified that the incidents relating to this sale took place in Newton County.

McDonald and Rogers were arrested and taken to the Newton County sheriff's office on September 30, 2003. In a recorded interview, Rogers admitted that he had obtained drugs for the informant and others from his source in Cobb County for approximately two months before his arrest.

1. Rogers contends that he was entitled to a directed verdict on the State's allegation that he sold methamphetamine on September 29, 2003 (Count 3). Rogers argues that because the State alleged in the indictment that "the date of the offense [was] a material element of this indictment," it was required to prove that the sale was completed on September 29, 2003. Rogers asserts that testimony showing that the drugs were delivered around 1:00 or 2:00 a.m. on September 30 mandates the conclusion that the State failed to prove that the crime was completed on the date alleged in the indictment. We disagree because Bruno's testimony provided some evidence from which the jury could conclude that the sale was completed on September 29, 2003, as alleged in the indictment. Specifically, he testified that the purchase took place and he received the methamphetamine from the informant on September 29, 2003.

2. Rogers argues that his conviction for possessing methamphetamine with intent to distribute on September 25, 2003 (Count 4), should have merged with his conviction for the sale of methamphetamine on September 25, 2003 (Count 2). The evidence, however, shows that each conviction related to different methamphetamine and that Rogers did not possess both amounts simultaneously. Consequently, the trial court did not err by denying Rogers's request to merge the two offenses. See Goldsby v. State, 273 Ga.App. 523, 529-530(6), 615 S.E.2d 592 (2005) (convictions for manufacturing and trafficking in methamphetamine merged for purposes of sentencing when one quantity of methamphetamine used to prove both crimes).

3. Rogers contends that he is entitled to a new trial because the State failed to prove venue.

(a) Because the State presented evidence that all of the sales took place in Newton County, we find no merit in this contention with regard to Count 2 (sale of methamphetamine on September 24, 2003) and Count 3 (sale of methamphetamine on September 29, 2003).

(b) With regard to the possession with intent to distribute charge, the record shows that the State charged Rogers for possession with intent to distribute based upon the small, separate amount of methamphetamine he gave to the informant at his home on September 25, 2003, "to hold [her] over." The State presented sufficient evidence of venue with regard to this conviction based upon the testimony that Rogers lived in Covington. We may take judicial notice that the city of Covington is wholly located within Newton County, the county in which Rogers was tried. Hubbard v. State, 208 Ga. 472, 474(3), 67 S.E.2d 562 (1951); Gilmer v. State, 234 Ga.App. 309, 310(1), 506 S.E.2d 452 (1998).

(c) With regard to Rogers's convictions for using the telephone to facilitate the commission of a felony (OCGA § 16-13-32.3), the record contains no evidence about the location of the informant during the telephone calls on September 23, 24, and 25, 2003. But with regard to the telephone call on September 29, 2003, the audiotape of the conversation between Rogers and the informant provides some evidence that the informant was in Covington during the phone call.

OCGA § 16-13-32.3(a) provides that "[i]t shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under this chapter." The General Assembly defined "communication facility" to include a telephone or radio. Id.

We have previously held that "[b]ecause the provisions of 21 U.S.C. § 843(b)⁸ are substantially the same as the provisions of OCGA § 16-13-32.3, U.S. Circuit Court cases construing the Federal law are instructive." Hunt v. State, 196 Ga.App. 694, 695(3), 396 S.E.2d 802 (1990). Federal courts have held that an offense under 21 U.S.C. § 843(b) "is `committed' for venue purposes both in the district where the call was made and in the district where the call was received." United States v. Barnes, 681 F.2d 717, 724 (11th Cir.1982); United States v. Stewart, 878 F.2d 256, 258 (8th Cir.1989).

The State submitted sufficient proof of venue with regard to the September 29, 2003, phone call based upon the evidence that the informant was located in Covington during the call. See Hubbard, supra, 208 Ga. at 474(3), 67 S.E.2d 562; Gilmer, supra, 234 Ga.App. at 310(1), 506 S.E.2d 452. With regard to the September 23, 24, and 25, 2003, phone calls, however, the State submitted no proof that the informant or Rogers was in Newton County during the calls and therefore failed to establish venue.

The State asserts that we should apply OCGA § 17-2-2(e) to conclude that venue existed in Newton County for the phone calls made on ...