Stephens v. State
| Decision Date | 19 January 1996 |
| Docket Number | No. A95A2551,A95A2551 |
| Citation | 219 Ga.App. 881,467 S.E.2d 201 |
| Parties | STEPHENS v. The STATE. |
| Court | Georgia Court of Appeals |
Drug violation. Sumter Superior Court. Before Judge Smith.
Cecilia M. Cooper, Americus, for appellant.
John R. Parks, District Attorney, for appellee.
Herman B. Stephens was found guilty by a jury of possession of cocaine with intent to distribute and appeals from the judgment of conviction.
The evidence showed police received an anonymous tip that cocaine was being brought into Americus by car. The tipster described the car, the route it would take, the approximate time it would arrive, and told police Stephens would be driving. Police spotted a car matching the description on the designated route at about the stated time and pursued the car to investigate the tip. While in pursuit of the car, police observed the driver throw an object out the window of the car. Shortly thereafter, the car pulled over and Stephens was identified as the driver and sole occupant of the car. The thrown object retrieved by the police was a bag containing approximately 13 grams of a chunky white substance which the crime lab tested positive for cocaine.
In addition to evidence showing Stephens possessed the cocaine, the State introduced opinion testimony from a police officer that the quantity of cocaine found in the bag was more than usually possessed for personal use and therefore was possessed for sale. The officer also testified that, although he had known Stephens for three years, he had no knowledge as to whether or not he was known as a drug user.
On appeal, Stephens claims: (1) the evidence was insufficient to support the conviction; (2) the State improperly injected his character into evidence; and (3) the trial court improperly imposed a life sentence. An enumeration of error claiming ineffective assistance of counsel was abandoned.
1. The evidence was clearly sufficient to prove beyond a reasonable doubt that Stephens possessed the cocaine found in the bag thrown from the car he was driving. However, mere possession of cocaine, without more, will not support a conviction for possession with intent to distribute. Wright v. State, 154 Ga.App. 400, 401-402, 268 S.E.2d 378 (1980). We have considered various kinds of additional evidence as proof of intent to distribute, including drug measuring and weighing paraphernalia, the packaging of the contraband, possession of certain amounts or denominations of currency, a prior possession with intent to distribute conviction, and expert testimony that the amount of contraband possessed was consistent with larger amounts usually held for sale rather than for personal use. James v. State, 214 Ga.App. 763, 764, 449 S.E.2d 126 (1994); Anderson v. State, 215 Ga.App. 426, 427-428, 451 S.E.2d 103 (1994) (physical precedent only).
In the present case, the only evidence offered by the State to show intent to distribute the cocaine was the opinion testimony from the police officer regarding the amount of the cocaine and the same officer's testimony that he knew Stephens but did not know whether or not he used cocaine. As to the opinion testimony, we concluded in Davis v. State, 200 Ga.App. 44, 46, 406 S.E.2d 555 (1991), that "knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution is not necessarily within the scope of the ordinary layman's knowledge and experience"; therefore, expert opinion testimony is admissible on this issue under OCGA § 24-9-67. The officer in this case gave his opinion without being tendered or qualified as an expert on the use of illegal drugs. Davis v. State, 209 Ga.App. 572, 573, 434 S.E.2d 132 (1993). This unqualified testimony was not competent evidence of an intent to distribute. James, supra at 765, 449 S.E.2d 126; Newberry v. D.R. Horton, Inc., 215 Ga.App. 858-859, 452 S.E.2d 560 (1994); compare Stewart v. State, 246 Ga. 70, 75, 268 S.E.2d 906 (1980). The officer's additional testimony that he knew Stephens but had no knowledge as to whether or not he was a drug user provided no evidence showing an intent to distribute. 1
Accordingly, the evidence was insufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to prove Stephens was guilty of possession with intent to distribute. Dyer v. State, 218 Ga.App. 879, 463 S.E.2d 718 (1995). Since the evidence was sufficient to support a conviction for possession of cocaine,...
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