Williams v. The State

• Decision Date: 29 March 2010
• Docket Number: No. A09A1854.,A09A1854.
• Citation: 303 Ga.App. 222,692 S.E.2d 820
• Parties: WILLIAMSv.The STATE.
• Court: Georgia Court of Appeals

303 Ga.App. 222

692 S.E.2d 820

WILLIAMSv.The STATE.

No. A09A1854.

Court of Appeals of Georgia.

March 29, 2010.

COPYRIGHT MATERIAL OMITTED

Rachel D. Caputo, Macon, Leonard M. Geldon, for appellant.

Louie C. Fraser, Dist. Atty., Robert B. Faircloth, Asst. Dist. Atty., for appellee.

BERNES, Judge.

A jury found Tara Williams guilty of possession of marijuana with intent to distribute and drug trafficking within 1,000 feet of public housing. Williams filed a motion for new trial, which the trial court denied. On appeal, Williams challenges the sufficiency of the evidence to sustain her convictions. She further contends that the trial court erred (1) in denying her motion to suppress the drug evidence; (2) in denying her the right to impeach an officer with evidence of his alleged racial bias in prior unrelated cases; (3) in denying a new trial based upon the state's alleged failure to produce exculpatory fingerprint evidence during discovery; (4) in denying her motion for a mistrial based upon the state's violation of the trial court's ruling excluding the contents of a letter used to refresh a witness's recollection; (5) in denying a new trial based upon the prosecutor's misstatement of the evidence during closing argument; and (6) in improperly commenting upon the evidence at trial. Because the evidence was insufficient to establish that Williams's residence was located in a publicly owned or operated housing project, we must reverse the drug trafficking conviction. As to the possession of marijuana with intent to distribute conviction and the remaining claims of error, however, we affirm. Accordingly, the judgment of conviction is affirmed in part and reversed in part.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” (Citation omitted.) Clyde v. State, 298 Ga.App. 283, 680 S.E.2d 146 (2009). See also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence presented at trial established that on December 6, 2005, officers with the Dublin Police Department obtained and executed a search warrant for Williams's residence. When the officers arrived at the residence, Williams was wearing a tan jacket and sitting outside on the porch. When the officers approached, Williams fled crawling “very rapidly” inside the residence. The officers pursued Williams through the front door. After the officers entered the residence, Williams came out of the closet area located directly behind the front door. The officers performed a pat-down search of Williams for weapons, conducted a safety search to ensure that no other adults were present, and then searched the residence.

During a search of the closet behind the front door, the officers discovered a box covered by the jacket that Williams had been wearing. The officers discovered and seized 18 individual baggies of marijuana from inside the box. In Williams's kitchen and between the mattresses in her bedroom, the officers also discovered several small baggies, commonly used to package marijuana and of the same type discovered in the box. The officers testified that the manner in which the drugs were packaged was indicative of drug sales and distribution.

Williams was subsequently arrested, charged, and convicted of possession of marijuana with intent to distribute, in violation of OCGA § 16-13-30(j)(1), and drug trafficking within 1,000 feet of public housing, in violation of OCGA § 16-13-32.5(b).

1. Williams challenges the sufficiency of the evidence as to the drug trafficking offense. She contends that the trial evidence failed to establish that her residence, where the offense occurred, was within 1,000 feet of a publicly owned and operated housing project, as alleged in the indictment. We agree.

OCGA § 16-13-32.5(b) makes it unlawful for any person to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on, or within 1,000 feet of any real property of any publicly owned or publicly operated housing project. For the purposes of this Code section, the term “housing project” means any facilities under the jurisdiction of a housing authority which constitute single or multifamily dwelling units occupied by low and moderate-income families pursuant to Chapter 3 of Title 8.

(Punctuation and footnote omitted.) Mahone v. State, 296 Ga.App. 373, 374-375(3), 674 S.E.2d 411 (2009). While the indictment pertinently charged that Williams had committed the drug offense within 1,000 feet of a “publicly owned and operated housing project, to wit: the Housing Authority of the City of Dublin, Georgia,” the state failed to produce any evidence establishing the same. The state's witnesses testified that Williams's residence was located in a housing project, commonly known as Jones Village, and made reference that there were multiple apartments at the location. Significantly, however, there was no evidence establishing that the housing project was publicly owned or operated. Nor was there testimony that the housing project was occupied by low and moderate-income families. Accordingly, the state failed to establish that Williams's residence fell within the purview of the statute proscribing this offense. As a result, the drug trafficking conviction premised upon OCGA § 16-13-32.5(b) must be reversed. See Mahone, 296 Ga.App. at 374-376(3), 674 S.E.2d 411; Collins v. State, 278 Ga.App. 103, 105-106(1)(b), 628 S.E.2d 148 (2006); Johnson v. State, 214 Ga.App. 77, 79-81(2), 447 S.E.2d 74 (1994). Compare Barnett v. State, 276 Ga.App. 238, 240(1), 623 S.E.2d 136 (2005) (offense established by testimony that the housing authority owned the apartments where the drug transaction occurred and that families of lower income lived there); Haywood v. State, 248 Ga.App. 210, 212(2), 546 S.E.2d 325 (2001) (offense established by testimony that the drug crime occurred at a publicly operated low to moderate-income housing project run by the housing authority).

2. Williams also contends that the evidence was insufficient to establish her commission of the possession of marijuana with intent to distribute offense. This contention is without merit.

“It is unlawful for any person to possess, have under his control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.” OCGA § 16-13-30(j)(1). There is no bright line rule regarding the amount or type of evidence sufficient to support a conviction for possession with intent to distribute. See Cotton v. State, 300 Ga.App. 874, 876, 686 S.E.2d 805 (2009). We have previously held that an intent to distribute may be demonstrated by the manner in which the drugs were packaged. Id.; Bowers v. State, 195 Ga.App. 522(1), 394 S.E.2d 141 (1990). Here, the evidence established that during the execution of the search warrant at Williams's residence, the officers seized 18 baggies of marijuana individually packaged in a manner that was indicative of possession with intent to distribute. This evidence was sufficient to support Williams's conviction. See id.

Williams nevertheless argues that she did not have actual possession of the contraband, that she was merely present at the scene, and that others had equal access to her residence where the contraband was found. In support of her argument, Williams points to evidence that her ex-boyfriend had a key to her residence and lived with her occasionally, that others visited her residence, and that her fingerprints were not discovered on the drugs. Williams's contentions in this regard, however, merely presented a question of equal access and control, which the jury was required to resolve:

[A] person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. To prove constructive possession, the [s]tate must establish a link between the defendant and the contraband that goes beyond mere spatial proximity. Such connection can be made where the evidence shows that the contraband was discovered on premises occupied and controlled by the defendant with no right of equal access and control in others. Control may be inferred if the defendant owns or resides in the premises, but not if he is merely an occupant.... To rebut the inference of possession, ... a defendant must present evidence that a person other than the defendant had equal access to the premises where the contraband was found. And whether the defendant's evidence of equal access sufficiently rebuts the inference is a question for the jury.

(Punctuation and footnotes omitted.) Bussey v. State, 263 Ga.App. 56, 57-58(1)(a), 587 S.E.2d 134 (2003).

Here, the evidence reflected that the residence belonged to Williams, thus permitting an inference that she controlled the premises and was in constructive possession of the drug contraband. See Bussey, 263 Ga.App. at 58(1)(a), 587 S.E.2d 134. Although Williams's ex-boyfriend testified that he occasionally lived at the residence with Williams, he was not present when the search warrant was executed. And significantly, he denied knowing anything about the drugs, denied that the drugs belonged to him, and stated that he never saw anyone store drugs in Williams's closet. None of Williams's other visitors had a key to the residence. While test results indicated that Williams's fingerprints were not located on the drug evidence, the evidence further reflected that some of the fingerprints could not be processed. Regardless, the absence of Williams's fingerprints did not require an acquittal. “The fact that there is a fingerprint at a crime scene which does not belong to the accused is neither...