Ware v. the State.
| Decision Date | 31 May 2011 |
| Docket Number | No. A10A1998.,A10A1998. |
| Citation | 707 S.E.2d 111,308 Ga.App. 24 |
| Parties | WAREv.The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Travis A. Williams, H. Bradford Morris, Jr., Gainesville, for appellant.Lee Darragh, District Attorney, Wanda L. Vance, John D. West, Jr., Assistant District Attorneys, for appellee.ADAMS, Judge.
Clifford Lovett Ware was tried and convicted of the sale of cocaine and sentenced to ten years, four to serve. He appeals following the denial of his amended motion for new trial. He contends the evidence was insufficient in that it only shows that he possessed or delivered cocaine but not that he sold it. He also contends the trial court committed a related error when charging the jury on the definition of the crime and erred with regard to the admission of certain audio evidence.
Construed in favor of the verdict, the evidence at trial shows that on September 27, 2007, an undercover officer assigned to the Hall County Multi–Agency Narcotics Squad received a call regarding a possible prostitute and went to the specified location—a high crime area—in an unmarked truck. When the officer arrived, the suspected prostitute walked away, but Ware, who was also in the area, approached the officer's truck and asked him what he was looking for. The officer replied that he was looking “for some soft or hard, which would be either crack cocaine or powder cocaine,” and, at that point, Ware got into the officer's truck. Ware gave the officer directions to a local hotel, and, when they arrived, Ware “said that he could go over there and he had a hook up over there at the hotel.” Ware got out, told the officer to wait in the truck, and headed for the hotel. At that point, the officer drove out of the parking lot in order to have time to get a recorder ready, call for backup, and arrange an open communication line so that agent Andy Smith could hear what was happening. From that point forward the officer's conversations were recorded.
When the undercover officer returned, Ware was very upset about the officer driving off, and he said that they would now have to go somewhere else, which they did. But Ware was unsuccessful at the second location, and he recommended going back to the hotel. During their drive, Ware bragged about having the ability to get drugs and to avoid serving jail time because he had other people—“mules”—who “took all the heat, but tried to pin it on him.”
Back at the hotel, Ware gave instructions about where to park and how to drop him off, drive around, and meet him in another parking lot. Ware told the officer to give him the money, and the officer gave him a marked $20 bill. Ware went into a room at the hotel, returned minutes later, and gave the officer two rocks of what proved to be cocaine. Thereafter, agents who had been monitoring the events initiated a traffic stop and arrested Ware. Other agents went to the hotel room, placed a man named Warren Faulkner in custody, and recovered the marked $20 bill from the hotel room.
1. Ware was accused of the “sale of cocaine.” OCGA § 16–13–30(b). Ware argues that although he may have been in possession of cocaine, the evidence was insufficient to establish that he sold it. He argues that no evidence was presented to show that an agreement existed between him and the officer to deliver a particular quantity of cocaine for a particular price; that no evidence showed that he received or retained any consideration for the sale; that he only delivered the cocaine; and that Faulkner was the actual seller.
But “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16–2–20(a). And one may be a party if he or she “ [i]ntentionally aids or abets in the commission of the crime.” OCGA § 16–2–20(b)(3). It is easy to conclude that Ware aided and abetted the sale of cocaine to the undercover officer. “The theory that one may act as a conduit or procuring agent of the purchaser and thereby escape culpability as a seller has been considered and rejected by this Court.” (Citations and punctuation omitted.) Gay v. State, 221 Ga.App. 263, 265(1)(a), 471 S.E.2d 49 (1996) (). See, e.g., Little v. State, 230 Ga.App. 803, 805(1), 498 S.E.2d 284 (1998).
2. In a related enumeration, Ware contends the trial court erred by failing to answer a question the jury asked the court during its deliberations. In general, questions regarding a court's response to jury questions are reviewed for abuse of discretion. Cloyd v. State, 237 Ga.App. 608, 610(3), 516 S.E.2d 103 (1999). Id.
Initially, the court charged the jury on the crime as follows:
The offense charged in this accusation is sale of cocaine, which provides that it is unlawful for any person to sell any quantity of cocaine, which is a controlled substance.
Sale means to transfer property, actually or constructively, for consideration either in money or its equivalent.
The term sale is generally given a broader definition in the drug context than in other fields of law, so as to include not only the...
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