Toro v. State, A12A1569.

• Decision Date: 29 November 2012
• Docket Number: No. A12A1569.,A12A1569.
• Citation: 735 S.E.2d 80,319 Ga.App. 39
• Parties: TORO v. The STATE.
• Court: Georgia Court of Appeals

319 Ga.App. 39

735 S.E.2d 80

TORO

v.The STATE.

No. A12A1569.

Court of Appeals of Georgia.

Nov. 29, 2012.

Charles H. Frier, for Appellant.

Paul L. Howard Jr., Arthur Conley Walton, for Appellee.

ADAMS, Judge.

On October 28, 2005, an indictment was returned charging, inter alia, Elierzer Toro and Brent Smith with trafficking in methamphetamine, possession of MDMA, misdemeanor possession of marijuana (less than one ounce), and possession of a firearm in the commission of a felony; Toro was also charged with theft by receiving stolen property (Indictment Number 05SC36729). A short time later, on November 4, 2005, an indictment was returned charging, inter alia, Toro and Jennifer Klein with trafficking in methamphetamine (Indictment Number 05SC36979). The trial court granted the State's motion to join the indictments for trial, and a jury subsequently convicted Toro of all charged offenses. Toro filed motions for new trial and to vacate his sentence, and the trial court denied both motions but modified Toro's sentence. Toro appeals, challenging the trial court's denial of both motions.

The evidence adduced at trial, construed to support the verdict as we must on appeal, shows the following: Toro was first arrested on October 14, 2005. Tim Brown, who at that time was working as an undercover officer with the Atlanta Police Department, testified that Officer Willie Robinson and he were conducting surveillance in an unmarked car in the Lenox Mall parking lot after being advised by a police investigator that two “suspects” were coming there to meet with a victim who had reported his car stolen. The victim was also parked in the Lenox lot, and Brown observed two men, subsequently identified as Toro and Brent Smith, arrive in a Honda Accord with a “drive out tag” on the back. Toro exited the car and exchanged words with the victim, and then Toro got back in the Honda and drove out of the parking lot. Brown and Robinson followed the Honda, which was stopped by a marked police car. Toro and Smith were taken into custody.

At the time of his arrest Toro had a gun holster on the right side of his belt, and Brown identified a gun holster introduced into evidence at trial as the same one Toro was wearing that day. Brown testified that a loaded Hi–Point 9mm semiautomatic pistol, which fit “perfectly” into the holster Toro was wearing, was found inside the vehicle. Additionally, an electronic scale and crystal methamphetamine were found inside a black bag located in the car's middle console, and MDMA, or ecstasy, a small amount of marijuana, a digital scale, small plastic baggies and a radio scanner were found either inside the black bag or scattered throughout the car. Various keys, which appeared to be either vehicle keys or house keys, were also found in the car.

Brent Smith, who was arrested and charged along with Toro, testified next. According to Smith, he had been “hanging out” with Toro and other methamphetamine (“meth”) users “off and on” for about two weeks. Smith testified that Toro had driven him back to his motel the night before the incident here, and at that time Toro was driving a Honda Accord which he assumed was stolen because it did not have an ignition. Toro came back to the motel to pick up Smith the next morning, in what appeared to Smith to be a different Honda because it did have an ignition. Smith also said that Toro brought him methamphetamine and ecstasy, which they used before they left the motel. They then went to see someone about a stolen Mercedes automobile, which he and Toro were planning to give back to the owner for a reward. Smith, who acknowledged that his memory of the day was incomplete because of his drug use, testified that he thought they stopped to let Toro speak to the owners of the Mercedes, and the next thing he knew they were surrounded by police. Smith also identified the gun police recovered from the Honda as being the same one that Toro “always had” with him and testified that the holster that was introduced at trial was the same one Toro was wearing when he was arrested. Smith also said that Toro had the gun in the holster earlier in the day and that Toro usually carried around the black case that was found in the car.

On cross-examination, Smith acknowledged that he had been indicted for the same crimes as Toro, except that he was not charged with theft by receiving; that those charges were still pending against him; and that he was facing considerable jail time because of those charges. However, he deniedthat his case would be dead docketed because of the testimony he gave against Toro; he said he had no idea what would happen to his case after Toro's trial.

Officer Willie Robinson testified concerning the surveillance he conducted with Brown that led to Toro and Smith's arrest. According to Robinson, the Honda that Toro was driving that day was “packed with ... stuff,” as if someone had been living in it, and that drugs and a gun were also found in the car. Robinson also testified that a tag search revealed that the car had been stolen.

The owner of the Honda testified that on October 12, 2005, she had driven her 1996 Honda Accord to choir practice and that she had parked her vehicle on the bottom level of the deck of her church parking garage because she was eight months pregnant. When she returned to the garage after practice, she discovered her car was gone. She reported the theft, and several days later, on October 14, she received a call from police that her car had been located. When she went to retrieve her car, she discovered that her key would open the door but would not start the car. However, a key found in the car when Toro was apprehended started the car, but that key would not open the door. She said that the metal tag she had on the car had been replaced with a paper tag, but the officers found her metal tag in the car and returned it to her. She also said that the car was full of someone else's personal belongings, that her stereo had been removed and replaced with one that did not exactly fit, and that the car had been damaged in various ways. And many of the items she had in the car, including equipment which she had received for the child she was expecting, were missing.

Toro was again arrested on October 28, 2005. Officer Robert Blauvelt testified that a little after 10:10 a.m. on that date, he was dispatched to a Ramada Inn on Piedmont Road in Atlanta, Georgia in response to a call concerning a suspicious person or persons sleeping in a car. Blauvelt, an officer-in-training, and another officer, Craig Faircloth, responded to the call. When they approached the car, they observed a female, subsequently identified as Jennifer Klein, and a male, subsequently identified as Toro, sleeping in the back seat of the car. Toro was wearing what appeared to be a bullet proof vest and a holster. During a search of the car, officers found a “fanny pack” containing what was subsequently identified as methamphetamine located in between Toro and Klein in the back seat. Both were subsequently charged with trafficking in methamphetamine. Toro also had $470 in cash in his left pants pocket. Toro denied knowing the money was in his pocket, and denied owning the fanny pack where the drugs were found and denied owning the drugs. Klein and the owner of the car, who was staying at the hotel, also denied they owned the drugs.

Klein testified that at the time she was arrested, she was enrolled in college in Alabama and that she had come to the Atlanta area to visit for the weekend, but she never went back to school. Klein had been staying at a fellow meth user's house, along with a number of other “squatters,” but the owner of the house had gotten tired of the squatters and had given her money to rent a hotel room. Klein and several others went to the Ramada on Piedmont Road, and she got a room in her name. She testified she got very high while she was there and thus could not remember all the details of what happened next. ¹ She thought Toro, whom Klein said she had met only about four times before that day, came to meet someone at the motel, and most of those in the room, including Toro, left early that morning to give someone a ride to work. Klein said she did not remember much about the ride, except that she and Toro were riding in the back seat and that at some point she fell asleep. She did not remember anything else until police woke her up.

Klein also testified that the trafficking charge was still pending against her, and she denied that she had been offered anything in connection with those charges in exchange for her testimony. She also testified that she had never sold meth and that the meth culture involved users sharing the drug more or less freely, and that someone would normally give her meth almost every day and that she “hardly ever” had to buy the drug. Klein testified again on cross-examination that she did not have an agreement with the State in exchange for her testimony, but she had spoken to her lawyer about trying to go to drug court or to have her charge dismissed.

Other evidence will be set forth below as necessary to address Toro's specific claims of error.

1. Toro first challenges the sufficiency of the evidence to support his conviction for theft by receiving a stolen automobile, arguing that the evidence was insufficient to show that he knew that the vehicle was stolen. See OCGA § 16–8–7(a). However, contrary to Toro's arguments on appeal, the evidence recited above, as well as other evidence presented at trial, was more than sufficient to show that Toro had the requisite knowledge. This enumeration thus provides no basis for reversal. Green v. State, 277 Ga.App. 867, 869(1), 627 S.E.2d 914 (2006).

2. Toro next contends that his conviction on the trafficking in methamphetamine charge in Case No. 05SC36979 was void and should have been vacated because of irregularities in the composition of the grand jury. ² However, the record...