Salazar v. State

• Decision Date: 16 June 2014
• Docket Number: No. A13A2204.,A13A2204.
• Citation: 757 S.E.2d 224,326 Ga.App. 627
• Court: Georgia Court of Appeals
• Parties: SALAZAR v. The STATE.

326 Ga.App. 627

757 S.E.2d 224

SALAZAR

v.The STATE.

No. A13A2204.

Court of Appeals of Georgia.

March 27, 2014.

Certiorari Denied June 16, 2014.

Lawrence W. Daniel, for Appellant.

Emily Kathleen Richardson, James Alan Dooley, Asst. Dist. Attys., James David McDade, Dist. Atty., for Appellee.

PHIPPS, Chief Judge.

Following a jury trial, Juan Salazar was convicted of trafficking in cocaine,¹ and acquitted of operating a vehicle with a false or secret compartment.²On appeal, he challengesthe sufficiency of the evidence to support his conviction and the denial of his motion to suppress evidence obtained during a search of the vehicle he was driving.For the reasons that follow, we affirm.

1.Salazar contends that the evidence was insufficient to support the conviction for trafficking in cocaine “because the jury did not convict [him] on the predicate offense of knowingly driving a vehicle with [a] false compartment.”He asserts that the jury could not have found that he possessed the drugs, given its finding that he had not knowingly operated a vehicle with a false compartment.The contention is without merit.

When an appellant challenges the sufficiency of the evidence to support his 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.³

The evidence showed that on January 28, 2010, Salazar was driving a tractor-trailer on I–20 in Douglas County when a police officer initiated a stop for failure to maintain lane.As the officer approached the stopped tractor-trailer, he observed that Salazar had already exited the cab of the truck.To the officer, Salazar's manner of breathing indicated that he was nervous; Salazar also “pace[d] back ... like he was slowly trying to get [the officer] away from the truck.”Salazar told the officer that he was delivering a load of produce to Atlanta, though he did not know the specific destination.

The officer returned to the patrol vehicle to check Salazar's driver's license and the truck's license plate, and to review the freight documents Salazar had handed him.The officer noticed several discrepancies in the documents.He radioed dispatch to check Salazar's driver's license and the license plate, and began writing a warning citation for the alleged lane violation.

For several reasons (which were articulated at the suppression hearing and at trial), the officer became suspicious.⁴The officer left the patrol vehicle and asked Salazar for permission to search the truck's cab.Salazar consented.

When the officer looked inside the truck's cab, he noticed that the fabric on the ceiling did not match other fabric in the cab.The officer, now joined by a second officer, pushed up on the ceiling of the cab and, as he did so, an upholstery button came loose; there was wet glue around the button, and a bottle of glue was found on a shelf above the driver's seat.The officer pulled the ceiling down slightly and saw a steel plate, which, he stated, was not typically found in truck cab ceilings.As he pushed the steel plate, he saw a void in the ceiling area.Inside that void were brick-like objects, lined up across the ceiling.The officer removed one of the objects, which was packaged in “Saran wrap,” and saw that it consisted of a white powdery substance.A search of the ceiling area revealed 85 of the brick-like objects.Subsequent testing showed that the substance tested positive for cocaine, and the net weight of the one package tested was 1,020 grams, with a purity of 67.6 percent.⁵

A person who had been jailed with Salazar before trial testified that Salazar told him in jail that he knew he had been transporting cocaine at the time of his arrest, and that he had been transporting a larger amount of cocaine than the charge reflected.A second person who had been jailed with Salazar before trial testified that Salazar told him that police officers had under-reported the amount of drugs that he had; and that he could get drugs for the witness, a drug dealer, for less money than the witness had been paying.

The indictment charged Salazar with trafficking in cocaine, alleging that he had knowingly possessed 400 grams or more of a mixture with a purity of ten percent or more of cocaine,⁶ and that he had operated a vehicle with a false or secret compartment.⁷

(a) Contrary to Salazar's contention, operating a vehicle with a false compartment is not a “predicate offense” of trafficking in cocaine.The offense of trafficking in cocaine does not require, as an essential element, that a defendant be charged with or convicted of a false compartment offense as a predicate offense.⁸

Assuming arguendo that there was an irreconcilable conflict in the verdicts, the Supreme Court of Georgia has

abolished the rule that inconsistent verdicts in irreconcilable conflict in criminal cases warranted reversal[, explaining] that inconsistent verdicts could be the result of jury mistake, compromise, or lenity, but it is unknown whether the mistake, compromise, or lenity was exercised in favor of the defendant or the prosecution.Appellate courts cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense.⁹

In this case, the record does not make transparent the jury's reasoning, and Salazar's contention is without merit.¹⁰

(b) The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Salazar committed the offense of trafficking in cocaine.

In cases involving contraband found in automobiles, the State is generally entitled to an evidentiary presumption that the owner or driver of the automobile is in constructive possession of the contraband.Here, there was ... evidence indicating that [Salazar] ... controlled the vehicle in which the cocaine was found....Thus, evidence existed for the jury to find that [Salazar] was guilty of trafficking in cocaine beyond a reasonable doubt.¹¹

“Furthermore, ... knowledge may be proved by facts and circumstances from which a jury could reasonably infer that a defendant knowingly possessed contraband.”¹²Indeed, OCGA § 16–2–6 provides that a jury may find criminal intention “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”Here, a finding “that [Salazar] knew that the vehicle ... which he was [operating] ... contained the cocaine ... could be inferred from the circumstances.”¹³Although Salazar asserts that there were conflicts in the evidence and that some witnesses lacked credibility, it was for the jury to resolve conflicts in the evidence, and assess the credibility of the witnesses.¹⁴

Accordingly, the evidence was sufficient to support the jury's verdict beyond a reasonable doubt that Salazar knowingly possessed the cocaine found in the truck's cab, and that he was guilty of trafficking in cocaine.¹⁵

2.Salazar contends that the trial court erred by denying his motion to suppress the contraband seized during the search of the truck.Salazar has not preserved the issue for appellate review because at trial his counsel affirmatively stated that he had no objection to admission of the evidence.“In so doing, counsel waived any objection, including those raised in his motion to suppress.”¹⁶

Judgment affirmed.

ELLINGTON, P.J., and BRANCH, J., concur.

1.OCGA § 16–13–31(a)(1)(C)(pertinently providing that a person commits the offense of trafficking in cocaine when he possesses 400 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine).

2.OCGA § 16–11–112(c)(1)(providing that it is unlawful for any person to knowingly operate any vehicle containing a false or secret compartment);OCGA § 16–11–112(a)(1)(A)(a false or secret compartment “means any enclosure which is integrated into or attached to a vehicle and the purpose of the compartment is to conceal, hide, or prevent discovery by law enforcement officers of: ... (ii) Controlled substances...