Roundtree v. State
| Citation | 358 Ga.App. 140,854 S.E.2d 340 |
| Decision Date | 22 January 2021 |
| Docket Number | A20A2067 |
| Parties | ROUNDTREE v. The STATE. |
| Court | United States Court of Appeals (Georgia) |
Andrew Van Thomas II, for Appellant.
Michelle Thomas Harrison, Douglasville, Bradfield M. Shealy, Valdosta, for Appellee.
Kenneth Roundtree appeals from his convictions for possession of cocaine and possession of a controlled substance. In doing so, Roundtree argues that (1) there is insufficient evidence to sustain his convictions, (2) the trial court erred by failing to repeat jury instructions or answer a jury question during deliberations, and (3) a new trial should have been granted based upon the general grounds. For the reasons set forth infra , we affirm in part and reverse in part.
Viewed in the light most favorable to the jury's guilty verdict,1 the record shows that officers made contact with Roundtree—who is homeless—because he had a probation warrant. He was taken into custody and, thereafter, searched pursuant to arrest. During this search, an officer found a folded napkin in Roundtree's left front pants pocket. A small green bag was inside of the napkin, and two additional green bags were discovered inside Roundtree's other pocket. Each bag contained residue of a white, powdery substance. Roundtree told the officers that he collected bags like this "all the time," he found these particular bags near a local park, and he picked them up because children "might get the baggies and put it in their mouth and they won't be able to handle it like a grown folk will." The bags later tested positive for cocaine, and further testing revealed that the residue was a mixture of cocaine and a substance called Alpha-PVP.
Roundtree was subsequently indicted on one count of possession of a controlled substance and one count of possession of cocaine. After a trial by jury, he was convicted on both counts. Roundtree thereafter filed a motion for new trial and amended motion for new trial, which the trial court ultimately denied. This appeal follows.
1. Roundtree contends that there was insufficient evidence to sustain his convictions. And while we disagree that the State failed to present sufficient evidence as to the possession-of-cocaine count, we do agree with Roundtree that the evidence was insufficient as to the possession-of-a-controlled-substance count.
On appeal, we view the evidence in the light most favorable to the jury's verdicts, and it "must be sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt."2 In doing so, we must set aside any questions "about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact."3
Here, Roundtree was indicted for possession of cocaine in that he did "unlawfully possess cocaine, a Schedule II controlled substance, in violation of the Georgia Controlled Substances Act[.]"4 He was further indicted for "possession of a controlled substance" in that he did "unlawfully possess Alpha-PVP (alpha-pyrrolidinopentiophenone), a Schedule 1 controlled substance, in violation of [OCGA] § 16-13-30 (a) ...." For each count, Roundtree argues that the evidence was insufficient to show that he knew the bags in his possession contained residue of controlled substances.
As our Supreme Court has explained, "[p]ossession of a controlled substance is not a strict liability offense."5 So, the criminal intent required by OCGA § 16-13-30 (a) is the "intent to possess a drug with knowledge of the chemical identity of that drug."6 And the question of the "accused's knowledge of the chemical identity of an illegal substance is purely a question of fact."7 With this in mind, we will address each conviction separately.
As to possession of cocaine, the law-enforcement officer who found the bags testified that, based upon his training and experience, people will collect bags of residue in order to accumulate enough to ingest or to sprinkle into cigarettes. But the officer also testified that he did not find any cigarettes on Roundtree's person, nor did he find any other drug paraphernalia such as a pipe, cutting blade, or syringe.
Nevertheless, Roundtree testified in his own defense and explained why he picked up the bags: "You know, the young fellows, they go out there and they smoke, but they just throw their baggies and stuff down, so my concern is little kids going and playing in the park and they might get the baggies and put it in their mouth and they won't be able to handle it like a grown folk will." And although he denied knowing the bags contained cocaine residue, he admitted to having previously been convicted for sale of cocaine and, thus, knowing what cocaine looks like.
Needless to say, a jury may find criminal intention, "i.e. , knowledge, ‘upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ "8 And given the foregoing testimony by Roundtree himself, the jury was presented with sufficient circumstantial evidence by which to conclude that he knew the three bags in his possession contained cocaine residue.9
As to the possession of a controlled substance, namely "Alpha-PVP (alpha-pyrrolidinopentiophenone)," the State failed to present sufficient evidence as to this count because "Alpha-PVP (alpha-pyrrolidinopentiophenone)" is not listed in any of the controlled substance schedules.10 Nor was there testimony or other evidence that "Alpha-PVP (alpha-pyrrolidinopentiophenone)" is chemically related to any listed controlled substance.11 Indeed, the forensic chemist only referred to the drug as Alpha-PVP and was never questioned about its specific chemical properties or other information that might link it to a listed controlled substance. Nor did the State elicit any such testimony from its law-enforcement witness who was admitted as an expert in use and possession of cocaine and Alpha-PVP. As a result, the State failed to present sufficient evidence to sustain Roundtree's conviction on the count for possession of "Alpha-PVP (alpha-pyrrolidinopentiophenone)" as a controlled substance because it failed to present evidence that the substance in Roundtree's possession was controlled.12
2. Next, Roundtree contends that the trial court erred by failing to repeat jury instructions or answer a jury question during deliberations. We disagree.
The record shows that during the charge to the jury, the trial court instructed the jury on knowledge as follows:
Thereafter, during deliberations, the jury asked the trial court whether Roundtree had "to have knowledge of what he possessed?" In response, the judge instructed the jury to refer to "the charge that I've already given you a few minutes ago" because it "discussed that particular matter." Of note, neither the State nor Roundtree objected to this answer, and the jury did not ask any additional questions before returning its verdict.
Roundtree argues on appeal that the trial court abused its discretion by failing to recharge the jury on knowledge. But because Roundtree's trial counsel did not object at trial, we review this enumeration for plain error only.13 And reversal based on plain error is authorized only if "the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings."14 Suffice it to say, satisfying all four prongs of this standard is demanding, "as it should be."15
It is well established that when a jury does not ask the trial court to recharge its instructions, but rather to expound on them, it is "within the trial court's sound discretion to determine the need, breadth, and formation of any additional jury instructions."16 And here, the jury did not ask the court to recharge them as to knowledge, only whether Roundtree had "to have knowledge of what he possessed[.]" As a result, the trial court did not abuse its discretion by referring the jury to its previous charge as to knowledge to answer that question and, thus, Roundtree failed to establish that the court erred, much less plainly erred.17
3. Finally, Roundtree asserts that the trial court erred in failing to grant his motion for new trial based upon the "general grounds" of OCGA §§ 5-5-20 and 5-5-21. Once again, we disagree.
On a motion for new trial, even if the evidence is legally sufficient to sustain a conviction,18 the trial court may order a new trial as the thirteenth juror only if the "verdict of a jury is found contrary to evidence and the principles of justice...
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