Smith v. State

• Decision Date: 08 September 1989
• Docket Number: No. A89A0913,A89A0913
• Citation: 192 Ga.App. 768,386 S.E.2d 530
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

Page 530

386 S.E.2d 530

192 Ga.App. 768

SMITH v. The STATE.

No. A89A0913.

Court of Appeals of Georgia.

Sept. 8, 1989.

Peter D. Johnson, Augusta, for appellant.

Sam B. Sibley, Jr., Dist. Atty., Michael C. Eubanks, Barbara A. Smith, Asst. Dist. Attys., for appellee.

BIRDSONG, Judge.

Appellant, Samuel James Smith, appeals his conviction of two counts of selling cocaine and the denial of his motion for new trial.

On March 17, 1988, Agent Newton of the U.S. Army Criminal Investigation Command (hereinafter CID Agent) was introduced to appellant by a registered informant. The informant knocked on appellant's door and appellant came outside. Appellant entered the CID Agent's vehicle and had the agent drive him to the rear of the apartment complex where appellant lived. Appellant departed the vehicle and returned several minutes later. Appellant said that it would be about 25-30 minutes before his drug source had the drugs. After waiting the prescribed time, appellant again departed the vehicle and returned in about five minutes.

Appellant handed the CID Agent eight "rocks" of cocaine and was then given $230 by the agent. On March 22, 1988, the agent and his informant again met with appellant who entered the agent's vehicle and the same basic sequence of events recurred culminating in the appellant's handing the agent one "rock" of cocaine in a plastic bag and then being paid $250 by the agent. The agent testified that the actual exchange of cocaine for money occurred when appellant directly handed the cocaine to him and then was directly paid the money by the agent; the informant was used only in the initial introduction of both sales.

Appellant asserted the defense of entrapment. He testified that he smoked cocaine; basically his entire paycheck was being used to purchase cocaine; he had been selling his personal property to obtain cocaine; he was spending $40-45 a day for cocaine; and, that the informant was an old friend. Appellant further testified that the informant produced some cocaine which the men smoked; the informant had brought the CID Agent to the house with him; the CID Agent asked appellant to get some cocaine for him and offered to give appellant some of it; because he was a cocaine user the appellant accepted the agent's offer; the agent gave him the money in advance to obtain the drugs from a suspected drug dealer whom appellant knew; appellant made no cash profit from the sale but was merely a go-between in order to obtain some of the drugs for his own use; and, these two sales were the only cocaine sales in which appellant ever was involved. Held:

1. Appellant asserts that the evidence was insufficient to support the verdict, because it was procured by means of entrapment. Specifically, appellant argues that appellant raised the entrapment defense and that the State failed to prove beyond a reasonable doubt that entrapment did not occur.

"On appeal the evidence must be viewed in the light most favorable to the verdict." Guffey v. State, 191 Ga.App. 501(3), 382 S.E.2d 202 (1989); Watts v. State, 186 Ga.App. 358(1), 366 S.E.2d 849. Issues of credibility of witnesses and weight of admitted evidence are within the province of the fact finder to resolve; " 'appellate courts do not weigh the evidence or determine the credibility of the witnesses, but look only to determine if the evidence is sufficient such that a reasonable trier of fact could rationally have found proof of guilt beyond a reasonable doubt.' " Banks v. State, 185 Ga.App. 851(3), 366 S.E.2d 228.

In the case before us, the defense of entrapment was reasonably raised by the evidence, and the jury was so instructed. Moreover, appellant did not take exception to the charge to the jury, and before this court appellant concedes that "[t]he jury ... was charged on the theory of entrapment and the [a]ppellant takes no exception to the instruction as given."

Appellant testified in his own behalf, and his version of the meeting between himself and a man who he believed to be the informant differed markedly from the testimony of the agent. The informant did not testify. The agent testified that on the first occasion "[t]he source knocked on the [appellant's] door and [appellant] answered the door and came outside. He entered the vehicle that I was driving ... at which time he instructed me to drive to the rear of [the apartment complex] ... at which time he got out of the vehicle." The agent further testified that "after the first buy I let [appellant] out that night and we made arrangements to meet up again and make another purchase. There was no date or time set...." The agent testified that on the second drug sale occasion "the source knocked on [appellant's] door and [appellant] said it would be a few minutes, he had to put on some clothes, at which time he got in the back seat of my vehicle." The agent further testified that he only had to wait for appellant for "about three minutes" and then appellant came out to the vehicle.

In Bacon v. State, 188 Ga.App. 782(1), 374 S.E.2d 351, " '[a]ppellant testified in his own defense. Appellant's version of the events differed from the agent's and, as to his predisposition to commit the crime, was exculpatory. Because the confidential informant was never called as a witness for the State to rebut appellant's testimony, he "claims that the evidence demanded a finding of entrapment. Contrary to that contention, however, the appellant's testimony concerning his lack of predisposition hardly went uncontradicted.... The appellant's testimony certainly raised the defense of entrapment, but it did not demand a finding of such. In this case, the issue of whether ...