Sloans v. State

• Decision Date: 28 June 2021
• Docket Number: A21A0125
• Citation: 861 S.E.2d 130,360 Ga.App. 256
• Court: Georgia Court of Appeals
• Parties: SLOANS v. The STATE.

360 Ga.App. 256

861 S.E.2d 130

SLOANS

v.The STATE.

A21A0125

Court of Appeals of Georgia.

June 28, 2021

Jordan Kerry Van Matre, McDonough, for Appellant.

Fani T. Willis, Paul Howard, Atlanta, Mathew Eli Plott, for Appellee.

Hodges, Judge.

Following a jury trial, the Superior Court of Fulton County entered a judgment of conviction against Theodore Sloans for one count each of trafficking in cocaine ( OCGA § 16-13-31 ) and tampering with evidence ( OCGA § 16-10-94 ).¹ Sloans appeals from the trial court's denial of his motion for new trial as amended, arguing that (1) the trial court erred in denying his motion to sever a firearms count from the remaining drug counts; (2) the trial court erred in admitting other acts evidence; and (3) the evidence was insufficient to support his convictions. Finding no error, we affirm.

Viewed in a light most favorable to the verdict,² the evidence revealed that the Georgia Bureau of Investigation led a lengthy investigation into suspected drug "trap houses"³ in south Fulton County. One such house was located on Old Bill Cook Road in College Park. Using confidential informants, GBI agents conducted a series of controlled buys from the house; buyers purchased a substance that field-tested positive for cocaine.

As a result of the controlled buys, agents secured a no-knock warrant for the house. When agents executed the warrant, they found Sloans and Dustin Smith tossing cocaine, packaging materials, and paper currency into an active fire. Agents recovered approximately 60 grams of cocaine, cash, scales, drug cutting agents, a police scanner, and video surveillance equipment. Agents also saw a handgun on a nearby table. In addition, a Chevrolet Caprice found outside the house had been seen at other suspected trap houses, and the keys to both the house and the vehicle were found in Sloans’ possession.

A Fulton County grand jury indicted Sloans for one count each of trafficking in cocaine, possession of a firearm by a convicted felon, possession of a firearm during the commission of a felony, and tampering with evidence.⁴ Sloans and Smith proceeded to trial jointly; the trial jury acquitted Smith of each charge he faced and Sloans of both firearms counts, but returned guilty verdicts against Sloans for trafficking in cocaine and tampering with evidence.

The trial court denied Sloans’ motion for new trial as amended, and this appeal followed.

At the outset, we note that Sloans’ appellate brief does not contain a single citation to "the parts of the record or transcript essential to a consideration of the errors[.]" (Emphasis supplied.) Court of Appeals Rule 25 (a) (1) ; see also Rule 25 (c) (2) (i) ("Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of a specific reference, the Court will not search for and may not consider that enumeration."), Rule 25 (c) (3) ("Reference to an electronic record should be indicated by the volume number of the electronic record and the PDF page number within that volume (Vol. Number - PDF Page Number; for example, V2-46).").

Our requirements for appellate briefs were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court. Further, this Court will not cull the record in search of error on behalf of a party. Accordingly, if we have missed something in the record or misconstrued an argument, the responsibility rests with counsel.

(Citation and punctuation omitted.) Biggins v. State , 322 Ga. App. 286, 287-288 (1), 744 S.E.2d 811 (2013). Furthermore, we are authorized to dismiss a party's appeal under such circumstances. See Patterson v. State , 327 Ga. App. 695, 696 (1), 761 S.E.2d 101 (2014) ; Court of Appeals Rule 25 (c) (2) (i). However, in view of the record citations contained in the State's brief, we will consider Sloans’ arguments to the extent possible.

1. Considering Sloans’ third enumeration of error first,⁵ he argues — without citation of authority or citation to the record⁶ — that the evidence was insufficient to support his convictions only because the State tested "only a small sample" of the suspected cocaine seized and that a "co-defendant's testimony should ... be disregarded as self-serving and lacking in credibility." This argument is not persuasive.

On appeal from a criminal conviction,

we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citation and punctuation omitted.) Johnson v. State , 338 Ga. App. 500, 790 S.E.2d 291 (2016). To that end, "as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict." (Citation and punctuation omitted.) Wickerson v. State , 321 Ga. App. 844, 849 (1), 743 S.E.2d 509 (2013).

(a) Testing of a Representative Sample. Sloans first contends that the evidence was insufficient because the State tested "only a small sample" of the suspected cocaine seized. Although the State's forensic chemist received three bags of a powdery substance for testing, she only tested the contents of one bag, which weighed 57.25 grams and demonstrated a cocaine purity of 65 percent. These amounts were sufficient to trigger the initial threshold of the trafficking statute.⁷ See OCGA § 16-13-31 (a) (1) ("[A]ny person who sells, manufactures, delivers, or brings into this state or who is in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine ... commits the felony offense of trafficking in cocaine...."). And contrary to Sloans’ argument, "this Court has previously held that the testing of representative samples is sufficient to support a conviction for trafficking in the entire amount." (Citation and punctuation omitted.) Salinas v. State , 313 Ga. App. 720, 725 (2), 722 S.E.2d 432 (2012).

(b) Credibility of Co-Defendant's Testimony. Sloans further asserts that the evidence was insufficient because a co-defendant's testimony should be "disregarded as self-serving and lacking in credibility." However, and as Sloans acknowledges, "[t]hese matters ... concern the weight of the evidence and the credibility of the witnesses, and, as such, they provide no basis for reversal." Chauncey v. State , 283 Ga. App. 217, 219 (1), 641 S.E.2d 229 (2007) ("Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court. As long as there is some evidence, even though contradicted, to support each necessary element of the state's case, this Court will uphold the verdict.") (citation and punctuation omitted); see also Wright v. State , 319 Ga. App. 723, 726-727 (1), 738 S.E.2d 310 (2013).

For the foregoing reasons, Sloans’ first enumeration fails.

2. Next, Sloans asserts that the trial court erred in admitting prior acts evidence because the acts were too remote, unduly prejudicial, and "the State did not need them given the strength of the case."⁸ This enumeration is without merit.

Prior to trial, the State notified Sloans of its intent to introduce evidence of three prior incidents in order to show Sloans’ "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Each incident involved acts in Fulton County that resulted in convictions for possession of cocaine with intent to distribute in 2002, 2003, and 2009:

(a) 2002 Conviction. When officers performed a directed patrol at an apartment complex in Fulton County, Sloans spotted the marked patrol car and ran. Officers tackled Sloans and recovered a firearm and 15 hits of crack cocaine on his person. Sloans pled guilty to possession of cocaine with intent to distribute.

(b) 2003 Conviction. As part of a narcotics investigation in College Park, officers spotted Sloans getting in a vehicle. When officers initiated a traffic stop, Sloans fled. Officers apprehended Sloans following a foot chase and discovered a firearm and 10 small chunks of crack cocaine on Sloans’ person. Sloans pled guilty to a charge of possession of cocaine with intent to distribute.

(c) 2009 Conviction. During a routine patrol of a high-crime apartment complex, officers noted increased foot traffic at a specific apartment. In a controlled buy, an investigator observed a confidential informant making a hand-to-hand purchase of cocaine from Sloans at the apartment. A search of the apartment pursuant to a warrant yielded cocaine, razor blades with suspected cocaine residue, and scales. Sloans pled guilty to possession of cocaine with intent to distribute.

During an extended pre-trial hearing, the State refined its motion and asked to admit the other acts evidence to show Sloans’ "intent, motive, and knowledge" to contradict his anticipated defenses of lack of knowledge and mere presence. In response, Sloans argued primarily that the evidence was "more prejudicial than probative" and characterized it as "propensity" evidence. The trial court concluded that the State's purposes for admitting the evidence were acceptable and that "the probative value of those three prior bad acts, the convictions, outweigh the prejudicial value at this point...." Moments later, the trial court added that it found "that the 404 (b) evidence is admissible pursuant to 403 as well. I don't find that it is unduly prejudicial, I also don't find that it would confuse the jury as to what this particular case is about." At trial, the State presented copies of the indictments and convictions from the three prior acts as well as the testimony of the arresting officers.

As a general matter,

[e]vidence of other

...