Williams v. State, A05A1805.

• Decision Date: 28 December 2005
• Docket Number: No. A05A1805.,A05A1805.
• Citation: 625 S.E.2d 509,277 Ga. App. 106
• Parties: WILLIAMS v. The STATE.
• Court: Georgia Court of Appeals

277 Ga. App. 106

625 S.E.2d 509

WILLIAMS v. The STATE.

No. A05A1805.

Court of Appeals of Georgia.

December 28, 2005.

COPYRIGHT MATERIAL OMITTED

David P. Smith, Smyrna, for appellant.

Patrick H. Head, District Attorney, Ann B. Harris, Amelia G. Pray, Assistant District Attorneys, for appellee.

JOHNSON, Presiding Judge.

Denard Williams was tried before a jury and found guilty of possessing marijuana with intent to distribute. The trial court sentenced Williams to serve four years in confinement and four years on probation. He appeals, challenging the sufficiency of the evidence, the state's failure to preserve potentially exculpatory evidence, the admission of similar transaction evidence, and the giving of a particular jury instruction. The challenges are without merit, and we therefore affirm Williams' conviction.

1. "On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility."¹

Viewed in favor of the verdict, the evidence in the instant case shows that on June 19, 2003, Tony Corley was driving his sister's car, with Williams sitting in the front passenger seat and his friend Freddie Brown sitting in the back seat. A police officer stopped Corley because one of the car's brake lights did not work. During the stop, the officer discovered that Corley did not have a valid driver's license. The officer arrested Corley for driving without a valid license and impounded the vehicle since it did not belong to him or either passenger.

Another officer, who had arrived to help with the stop, asked Williams to get out of the car so the officers could inventory the contents of the impounded vehicle. When Williams stepped out of the front passenger seat, the officer immediately saw a plastic bag containing suspected cocaine lying on the seat.² Williams then began talking quickly and voluntarily told the officers that there was marijuana in the car, inside two baby shoes under the front seat. The officers looked under the front passenger seat and indeed found a pair of baby shoes stuffed full of a total of 20 small plastic bags of marijuana. One of the shoes contained a white leather pouch with twelve small marijuana bags in it, and the other shoe held eight small bags of marijuana. According to one of the officers, such packaging of marijuana indicates an intent to sell it rather than keep it for personal use, and such small bags of marijuana are known as "dime bags" because they typically are sold for ten dollars apiece.

Corley testified that when he first encountered Williams on the night in question, Williams had approximately 20 small plastic bags of marijuana in a white leather pouch. Williams tried to sell the marijuana to him, but Corley did not have enough money to buy it. Shortly before the officer pulled him over, Corley saw Williams shoving the baby shoes, which belonged to Corley's niece, underneath the front passenger seat.

The state also introduced similar transaction evidence. According to that evidence, just a few months before the incident in Corley's car, Williams was found in possession of four small plastic bags of marijuana, and he was charged with possession of marijuana with intent to distribute.³

Williams claims that his conviction should be overturned because one of the other occupants of the car could have committed the crime. It is true that merely finding the contraband in the car occupied by Williams is not sufficient to support the conviction if it affirmatively appears from the evidence that persons other than he had equal opportunity to commit the crime.⁴ However, if there is evidence other than Williams' presence inside the vehicle showing that he possessed the contraband, then the jury was authorized to determine his guilt or innocence.⁵

In this case, there was significant evidence other than Williams' mere presence inside the car that shows he possessed the marijuana. Upon his removal from the car he voluntarily told the officers exactly where the marijuana was hidden, the marijuana was found directly underneath the seat which he had just occupied, Corley gave testimony establishing that the marijuana belonged to Williams, and Williams had previously been found in possession of similarly packaged marijuana. Such evidence authorized the jury to find him guilty beyond a reasonable doubt of possessing marijuana with intent to distribute.⁶

2. Williams contends that his constitutional rights were violated because the state did not preserve the white leather pouch or the baby shoes as possible fingerprint evidence. He reasons that if Corley's fingerprints had been found on the pouch or shoes, it would have been compelling evidence that the marijuana belonged to Corley.

Williams, however, did not preserve this constitutional issue for appellate review because he did not raise it in the trial court. We are a court for the correction of errors of law committed by the trial court where proper exception is taken, and we will not consider issues and grounds for objection, even of a constitutional magnitude, which were not raised and determined in the trial court.⁷ While the portion of the trial transcript cited by Williams in support of his appellate argument shows that he questioned the officer who had stopped the car about why he did not preserve the pouch or shoes as evidence, it does not show that he ever argued to the trial court that the failure to preserve the evidence violated some constitutional right.⁸ Since Williams did not raise this constitutional issue in, or obtain a ruling on it from, the trial court, there is nothing for us to review.

Even if the issue were properly before us, it is without merit. "In dealing with the failure of the state to preserve evidence which might have exonerated the defendant, a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence."⁹ Assuming, without deciding, that the leather pouch and shoes were material, Williams has made no showing that the police acted in bad faith in failing to preserve them as evidence. The officer who stopped the car testified that he did not preserve the pouch or shoes as evidence because it is not illegal to possess those items, and he preserved as evidence only the suspected contraband. At most, the officer's decision not to preserve the items in which the plastic bags of marijuana were found may have been careless police work, but it does not rise to the level of bad faith. ¹⁰

3. Williams argues that the trial court erred in admitting the similar transaction evidence. Before similar transaction...