Tate v. State
| Decision Date | 15 January 1998 |
| Docket Number | No. A97A1939,A97A1939 |
| Citation | 230 Ga.App. 186,495 S.E.2d 658 |
| Parties | , 98 FCDR 433 TATE v. The STATE. |
| Court | Georgia Court of Appeals |
Farless & Newton, William H. Newton III, Rome, for appellant.
Tambra P. Colston, District Attorney, Lisa W. Tarvin, Assistant District Attorney, for appellee.
Odell Tate was indicted by a Floyd County grand jury for the offenses of possession of cocaine with intent to distribute, OCGA § 16-13-30(b), simple possession of cocaine, OCGA § 16-13-30(a), and possession of cocaine with intent to distribute within 1,000 feet of public housing, OCGA § 16-13- 32.5(b). 1 A jury found him guilty, his motion for new trial was denied, and he appeals. We affirm.
1. Tate asserts the general grounds. Construed in favor of the jury's verdict, the evidence shows that a police officer on foot patrol saw Tate driving a car on the street adjoining the Rome Housing Authority public housing project. Because the officer knew that Tate did not have a valid driver's license, he followed him to a unit in the housing project and arrested him for driving with a suspended license. After briefly patting Tate down for weapons, the officer escorted him to his patrol car. Before placing Tate in the patrol car, the officer lifted up the rear seat to make sure the rear seat area contained no contraband or other objects. The officer had checked his patrol car when his shift began for any "out of the ordinary" objects in the rear seat area, as required by police department policy.
After Tate was placed in the patrol car, the officer conducted an impound and inventory of Tate's vehicle. During this time, the officer observed Tate making unusual movements inside the patrol car. Tate stopped moving several times when he noticed the officer watching him. Once they arrived at the county jail, the officer lifted the rear seat and found a small plastic bottle containing 12 pieces of suspected crack cocaine. A forensic chemist testified that the material tested positive for cocaine. Tate testified and denied any knowledge of the cocaine in the back seat of the patrol car.
(a) In asserting the general grounds, Tate contends the State failed to foreclose the possibility that the cocaine was placed in the patrol car by some other person. After the jury's verdict of guilty Tate can no longer rely on the presumption of innocence, and this Court cannot weigh evidence or judge the witnesses' credibility. We must construe the evidence to uphold the verdict and determine only whether the evidence was sufficient to enable any rational trier of fact to find Tate guilty of the crime charged beyond a reasonable doubt. Clark v. State, 197 Ga.App. 318, 320(1), 398 S.E.2d 377 (1990). It is true that the evidence of Tate's possession of the cocaine was circumstantial. But "[a]lthough such evidence may be classified as circumstantial rather than direct, we conclude that, with all the other evidence taken into account, there is no other reasonable hypothesis to account for the cocaine's presence where it was found other than that appellant had placed it there." Goins v. State, 184 Ga.App. 452, 454, 361 S.E.2d 853 (1987). See also Cotton v. State, 223 Ga.App. 288(1), 477 S.E.2d 425 (1996). The evidence was sufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), for a rational trier of fact to find beyond a reasonable doubt that Tate possessed the cocaine found in the rear seat of the patrol car.
(b) But 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." (Citations and punctuation omitted.) McNair v. State, 226 Ga.App. 516, 517(1), 487 S.E.2d 100 (1997).
Here, the State offered two types of proof of intent to distribute: Tate's earlier guilty plea to possession of cocaine with intent to distribute and sale of cocaine, along with the testimony of two police officers that the amount of cocaine discovered in this case was inconsistent with personal use. Tate enumerates as error the admission of the similar transaction and the testimony of one of the officers. 2 We disagree; both the similar transaction and the testimony were properly admitted, as discussed in Divisions 2 and 3, below. The evidence was sufficient under Jackson v. Virginia to support Tate's conviction for possession of cocaine with intent to distribute. See Davis v. State, 200 Ga.App. 44, 406 S.E.2d 555 (1991).
2. The trial court properly admitted Tate's 1988 plea of guilty to one count of a five-count indictment, alleging that he "did ... possess with intent to distribute, dispense, administer, sell and deliver cocaine." An undercover officer testified that Tate in the earlier incident sold him $475 worth of cocaine within a few blocks of the site of his arrest in this case. Both arrests occurred in the same area, but Tate did not live there. When Tate took the stand, he testified that he came to the housing project to ask a friend to play on a basketball team with him.
While Tate argues there was insufficient similarity between the two incidents, the earlier offense (Citations and punctuation omitted.) Cantrell v. State, 210 Ga.App. 218, 220-221, 435 S.E.2d 737 (1993). See also Collins v. State, 205 Ga.App. 341, 343(2), 422 S.E.2d 56 (1992). In Collins, an earlier guilty plea to simple possession of cocaine was held sufficiently similar where the defendant was originally charged with possession with intent to distribute, both incidents occurred in the same area, and the defendant had a number of plastic bags containing cocaine. Id.
In Tate's case, the earlier incident involved an actual...
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