Thomas v. State
| Decision Date | 04 June 2008 |
| Docket Number | No. A08A0639.,A08A0639. |
| Citation | 291 Ga. App. 795,662 S.E.2d 849 |
| Parties | THOMAS v. The STATE. |
| Court | Georgia Court of Appeals |
Leon Larke, Augusta, for appellant.
Steven Askew, District Attorney, Adriane L. Love, Assistant District Attorney, for appellee.
Corey Thomas was convicted of possession of cocaine with intent to distribute by an Emanuel County jury.1 Thomas was sentenced to 30 years, 15 to serve without parole and the remainder on probation. On appeal, Thomas challenges the sufficiency of the evidence and argues that the trial court erred by failing to charge the jury on equal access, by admitting the prior convictions of two witnesses, and by denying his motions for a mistrial and a directed verdict of acquittal. Thomas also contends that the trial court erred when it sentenced him as a recidivist and in failing to find his trial counsel ineffective. For the reasons stated below, we affirm.
On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict.2 So viewed, the evidence shows that at approximately 7:30 p.m. on February 4, 2005, agents of the East Central Georgia Drug Task Force served a search warrant at 307 Pughsley Street in Swainsboro. The warrant alleged that Vivian Boynton and Robert Foster were selling drugs out of the house. Former agent Travis Akridge testified that when the officers approached the residence, he saw an individual, later identified as Thomas, sitting on a couch inside the residence and heard him say "task force" before he ran toward the back of the residence. According to Akridge, Thomas ran into the bathroom, closing the door on Akridge's arm. When Akridge opened the door and removed Thomas from the bathroom, Thomas tossed a clear plastic bag, which contained crack cocaine, near the refrigerator in the kitchen. Akridge also testified that marijuana was found in the bedroom of one of the owners, who was identified in the search warrant.
On cross-examination, Akridge acknowledged that the case report, which was prepared by Agent Dana Reese, did not include the fact that Thomas had thrown the drugs into the kitchen after Akridge pulled him from the bathroom. Akridge maintained, however, that he reported at the scene that Thomas had possession of the drugs.
Reese testified that Akridge was in front of him and that he saw Akridge follow Thomas as he ran through the house. Reese further testified that the agents searched the residence and found a crack pipe in the vicinity of the living room and that two other people, Kenneth Hopkins and Wayne Johnson, were in the living room when the raid occurred. The agents also found crack cocaine in the kitchen area (that was tossed by Thomas) and $571 in Thomas's possession that included 19 $20 bills. Reese testified that crack cocaine was commonly sold in $20 amounts.
Reese testified that a young lady was found in the back bedroom of the residence. Pearson, Hopkins, and Johnson were searched, but no significant amount of cash was found on any of them. Also, the agents did not find drugs on any of the men, including Thomas. Reese testified that Pearson was arrested along with Thomas because he was in the vicinity of the area where the crack cocaine was found. Reese further testified that if an officer had made him aware that one as opposed to another person had possession of the drugs, he would have arrested that person. On cross-examination, however, Reese admitted that the scene was chaotic and that he did not remember who talked to him at the scene, particularly as this was the first search warrant that he had executed in his career.
1. In his first and fourth enumerated errors, Thomas argues that the trial court should have granted him a new trial and a directed verdict of acquittal due to the insufficiency of the evidence. We address these alleged errors simultaneously.
34;The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction."3 We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia.4 "The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."5 We find the evidence sufficient to support Thomas's conviction.
Thomas contends that the evidence was insufficient because there were other individuals in the residence who had equal access to the area where the cocaine was found, specifically the owners and Pearson, who was arrested because of his proximity to the cocaine. Although the house did not belong to Thomas, the evidence shows that only Thomas was in control of the cocaine before it was seized by the officers. According to Akridge, Thomas was the only person who ran when the officers approached the residence. After Akridge chased Thomas to the back of the house and forcibly removed him from the bathroom, Akridge saw Thomas toss the cocaine into the kitchen. The cocaine was seized shortly thereafter.
Possession of cocaine may be joint or exclusive, actual or constructive.6 "A person who knowingly has direct physical control over a thing at a given time is in actual possession of it."7 Here, the evidence was sufficient to support a finding that Thomas had actual possession of the cocaine.8 Thomas argues that we must give some credence to the fact that no cocaine was found on his person, but "[a]ctual possession requires only direct physical control over a substance; it does not require that the substance be on the defendant's person."9 Additionally, Thomas was the only person in the house who had a significant amount of money on his person.
In support of his argument that the cocaine did not belong to him, Thomas also offered the testimony of Hopkins and Johnson that they had tried to purchase cocaine from him earlier that evening and he told them he had none. The jury obviously chose to believe Akridge's testimony over that of Hopkins and Johnson. 10 Accordingly, the evidence was sufficient to support a rational trier of fact's finding of guilt beyond a reasonable doubt, and the trial court correctly denied Thomas's motions for new trial and for directed verdict of acquittal.
2. Next, Thomas argues that the trial court erred when it failed to give his request to charge on equal access. Thomas maintains that the owners and Pearson had equal access to the area where the cocaine was found. Again, we find no error.
The equal access rule entitles a defendant to acquittal where the only evidence of possession is the defendant's ownership or control over the premises, and the defendant can show that others recently had equal access to the premises. It is simply a defense available to the accused to whom a presumption of possession flows.11
Here, the state was not relying upon Thomas's ownership or control of the residence to prove that the cocaine found in the kitchen belonged to him. Rather, the state relied upon direct evidence that Thomas tossed the cocaine into the kitchen after he was apprehended by Akridge. Therefore, 12
Thomas incorrectly argues that State v. Johnson13 supports his position that the trial court was required to give an equal access charge. Johnson involves the question of whether an equal access charge was required in the context of contraband found in a vehicle.14 In that case, our Supreme Court held that the equal access charge was not required because no presumption of ownership was placed into evidence for the jury's consideration.15 Similarly here, the trial court did not charge on the presumption of ownership.16 Thus, Johnson actually supports the trial court's decision to refuse Thomas's equal access charge.
Thomas maintains that the charge to the jury on constructive possession "specifically presumes possession" and, therefore, triggers the need for the equal access charge, but he cites no authority in support of this position. The court here charged that "[a] person who, though not in actual possession, knowingly has both the power and the intention at any given time to exercise authority or control over a thing is in constructive possession of it." This charge on constructive possession is not tantamount to a charge on the presumption of ownership. Thus, Thomas's argument fails.
3. Thomas contends that the trial court erred when it admitted certified copies of Hopkins's and Johnson's prior convictions at trial. We evaluate the trial court's admission of prior convictions under an abuse of discretion standard.17
Thomas offered the testimony of Hopkins and Johnson as a part of his defense. Johnson testified that he was a chronic drug user at the time the raid occurred; that earlier that evening he asked Thomas if he had any drugs; that Thomas told him that he did not; that one of the crack pipes confiscated by the police belonged to him; and that he had a prior conviction for sale of cocaine. Similarly, Hopkins testified that the police found a crack pipe on his person; that he asked Thomas for drugs earlier that evening, and Thomas told him that he did not have any; and that he had a prior conviction for sale of cocaine. After each of the witnesses testified that they had prior felony convictions, the state offered certified copies of their convictions into evidence with no objection from defense counsel. Thomas contends that the admission of the certified prior convictions violated OCGA § 24-9-84.1.
"OCGA § 24-9-84.1 ... was enacted in 2005 to establish...
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