Sams v. State

• Decision Date: 09 October 1990
• Docket Number: No. A90A1666,A90A1666
• Citation: 397 S.E.2d 751,197 Ga.App. 201
• Parties: SAMS v. The STATE.
• Court: Georgia Court of Appeals

Page 751

397 S.E.2d 751

197 Ga.App. 201

SAMS v. The STATE.

No. A90A1666.

Court of Appeals of Georgia.

Oct. 9, 1990.

S. David Smith, Jr., Rome, for appellant.

Stephen F. Lanier, Dist. Atty. and Lisa W. Pettit, Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

Melvin Sams was convicted of two counts of violation of the Georgia Controlled Substances Act (possession of cocaine with intent to distribute and possession of cocaine), and possession of drug-related objects. The two drug counts were merged by the trial court at sentencing. On appeal Sams asserts seven enumerations of error.

1. Appellant first asserts the general grounds as to the count alleging possession of cocaine with intent to distribute.

The evidence showed that officers of the Rome-Floyd Metro Task Force executed a search warrant at appellant's residence. Two women and appellant were present when the warrant was executed. When the officers entered the house, appellant ran from the living room to a bedroom and was apprehended when he walked out of a utility room which was connected with the bedroom. Suspected cocaine was found stuffed down a drainpipe in the utility room, and fresh blood was found on the rim of the drainpipe. The arresting officer inspected appellant's hand and found a bleeding cut on his right index finger. During the search of appellant's home, the officers discovered white powder scattered around the living room and in a sock in the drainpipe, several boxes of baking soda, gram-ounce scales, two glass smoking pipes, and $1,191 in cash which was recovered from various locations in the house (a sock in the drainpipe, in a leather shoe, inside a cardboard tube, etc.). A set of Ohaus scales was seized from a pick-up truck parked in appellant's driveway. Although the truck was not registered in appellant's name and he disavowed any knowledge of it, one of the officers testified that he had seen appellant driving a truck of the same make, model, and color as the one in the driveway. One of the women who was arrested in appellant's house testified that she had been to the house twice earlier in the day and had purchased cocaine from appellant, and that she had arrived shortly before the officers to make a third purchase.

To support a conviction for possession of cocaine with intent to distribute, the State is required to prove more than mere possession. Wright v. State, 154 Ga.App. 400, 401, 268 S.E.2d 378 (1980), cert. denied 449 U.S. 900, 101 S.Ct. 270, 66 L.Ed.2d 130 (1980). In the instant case, the testimony of a woman, who was present in the house at the time the search warrant was executed, that she had made cocaine purchases from appellant earlier in the day and was present to make a third buy, when combined with other evidence (scales for weighing cocaine, drug paraphernalia, baking soda for cutting it, and a large amount of cash which consisted largely of $20 bills), authorized the jury to find the defendant guilty of possession of cocaine with intent to distribute despite the fact that the total amount of cocaine found on the premises totaled only two grams. Doe v. State, 189 Ga.App. 793, 795, 377 S.E.2d 546 (1989); Houston v. State, 180 Ga.App. 267, 268, 349 S.E.2d 228 (1986). On appeal, the evidence is construed to uphold the jury verdict, because the jury alone determines the credibility of the witnesses and the weight to be given to the testimony and other evidence. Doe v. State, supra; Thomas v. State, 175 Ga.App. 873, 874, 334 S.E.2d 903 (1985). A review of the evidence reveals that it was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); King v. State, 178 Ga.App. 343, 344, 343 S.E.2d 401 (1986).

2. Appellant also contends that under the rule set forth in Ridgeway v. State, 187 Ga.App. 381, 382, 370 S.E.2d 216 (1988), the trial court erred in failing to give his charge that mere presence in the vicinity of contraband does not establish possession. An examination of the jury charge shows that the jury was charged the law as to permissible inferences it could make as to the ownership of the premises, possession and equal access, and the pertinent law on possession of contraband. These charges were taken directly from the Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. 2, Criminal, which relies upon Knighton v. State, 248 Ga. 199, 200, 282 S.E.2d 102 (1981); Gee v. State, 130 Ga.App. 634, 636, 204 S.E.2d 329 (1974); and Lee v. State, 126 Ga.App. 38, 189 S.E.2d 872 (1972), as authority for the charges. We find no error in the charge as given on these issues, and the trial court correctly refrained from giving appellant's requested charge on mere presence, as the evidence indicated that the defendant was the possessor of the searched premises.

3. Appellant's contention that the trial court erred in not granting his motion requesting the criminal histories and statements of all the witnesses, and in denying his motion to reveal the deal, is without merit.

As to the latter motion, the Assistant District Attorney who tried the cases stated that prior to trial she had informed defense counsel that no deals had been made between the State and any witness. No evidence was presented to the contrary. In fact, when a co-indictee was questioned as to any deals made with the prosecution for her testimony, she replied that none...