Winn v. State, A17A1550

• Decision Date: 21 February 2018
• Docket Number: A17A1550
• Citation: 813 S.E.2d 400
• Parties: WINN v. The STATE.
• Court: Georgia Court of Appeals

345 Ga.App. 359

813 S.E.2d 400

WINN

v.The STATE.

A17A1550

Court of Appeals of Georgia.

February 21, 2018

Reconsideration Denied March 20, 2018

Michael Andrew Clark, for Appellant.

Amelia Greeson Pray, D. Victor Reynolds, Marietta, for Appellee.

Barnes, Presiding Judge.

Following the denial of his motion for new trial, Nikita Tayaneka Winn appeals from his convictions for possession of cocaine with intent to distribute, trafficking in illegal drugs (heroin), and possession of a firearm by a convicted felon. On appeal, Winn contends that the evidence was insufficient to sustain his convictions, the trial court erred in denying his motion to suppress because the affidavit for the search warrant was not supported by probable cause, consent to search was given by an unauthorized person, and his trial counsel was ineffective. Winn also contends that the trial court violated OCGA § 17–8–57 by informing jurors that "What the DA says is true." Following our review and consideration of the alleged errors, we affirm.

1. Winn first contends that the evidence was insufficient to sustain his convictions. He asserts that the evidence did not establish that he had possession of the drugs or firearm. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

(Citations omitted.) Rankin v. State , 278 Ga. 704, 705, 606 S.E.2d 269 (2004).

So viewed, the evidence demonstrates that upon receiving a complaint from the complex manager of the Crestmont Apartments about the presence of drug paraphernalia in the parking lot near Apartment 413, the Crime Interdiction Narcotics Unit of the City of Marietta Police Department ("CIU") assigned an undercover agent to surveil the building. They had been given a description of the resident of Apartment 413, and as the agent observed the building, he saw a female matching the description leave the apartment, get into the driver’s seat of a parked car for a few minutes, and then return to the apartment. The supervising officer of CIU and the agent met with the complex leasing manager who identified the leaseholder as Courtney Tench, and who said that she had received numerous complaints from other apartment residents in building 400 that Tench had people coming and going at all hours and that "cars [were] pulling up, staying for just a few minutes and leaving." A maintenance worker showed the officers needles in a bucket that he had picked up from around building 400; some of the needles contained brown liquid or bloody residue.

As they walked back to the leasing office, the officers saw a former confidential informant ("CI") walk from the breeze way of Building 400 to a nearby dumpster while talking on his cell-phone. The CI was a known heroin user and did not live at the apartment complex. The agent spoke with the CI, who admitted that he had gone to Apartment 413 to purchase drugs from "Kino." During this time, a man came out of Apartment 413 and walked toward the dumpster. When he saw the officers, he threw a plastic bag that he was carrying into the dumpster and walked away. The officer stopped the man, who said that his name was "Kino Smith." "Kino," who was later identified as Winn, consented to a search of his person, and the officer discovered a soft-ball size roll of money, most of it in smaller denominations. The officer took the former CI’s cell-phone and hit send, and Winn’s cell-phone rang. The former CI said that when he had gone to the apartment to purchase drugs, a man inside the apartment instructed him to wait by the dumpster. An officer attempted to locate the plastic bag that was tossed in the dumpster, but stopped for safety reasons.

Winn was placed in the patrol vehicle while officers conducted a "knock-and-talk" at Apartment 413. Trench answered the door and permitted the officers to enter. A male and two other females were present in the apartment. Trench told officer that she lived there with "Kino" (Winn), and that he paid her $400 a month to stay in the second bedroom. She consented to a search of her master bedroom and the common areas. The door to the second bedroom, where Winn stayed, was opened and police saw a black handgun and green leafy substance on the floor, and other drug paraphernalia. Based on their observations and the earlier interaction with Winn, officers obtained a search warrant for Winn’s bedroom and recovered, in addition to the drug evidence they saw earlier, a black chest containing heroin, marijuana, cocaine and a black digital scale.¹ They also discovered a bag containing close to 200 hypodermic needles. The room also contained a cell-phone contract in the name of "Kino Smith," a driver’s license in the name of "Jeffrey Brookings," and men’s clothing in Winn’s size. Winn had initially told police that his name was "Kino Smith," then "Jeffrey Brookings," but when he was arrested and booked, it was discovered that his legal name was Nikita Winn.

On appeal, Winn contends that there was insufficient evidence of his possession of the drugs and firearm. We do not agree.

Where the [S]tate provides no direct evidence of actual possession, a conviction may be sustained with proof of constructive possession. A finding of constructive possession must be based upon some connection between the defendant and the contraband other than mere spatial proximity. Constructive possession exists where a person 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. If the [S]tate presents evidence that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband. Although this presumption may be rebutted by showing that others had access to the premises, the equal access doctrine applies to rebut the presumption of possession only where the sole evidence of possession of contraband found on the premises is the defendant’s ownership or possession of the premises. ... [A]lthough mere presence at the scene is not sufficient to convict one of being a party to a crime criminal intent may be inferred from conduct before, during, and after the commission of a crime.

(Footnotes and punctuation omitted.) Johnson v. State , 338 Ga. App. 500, 502, 790 S.E.2d 291 (2016). "As long as there is slight evidence of access, power, and intention to exercise control or dominion over the contraband, the question of fact regarding constructive possession remains within the domain of the trier of fact." (Footnote and punctuation omitted.) Ferrell v. State , 312 Ga. App. 122, 124 (1), 717 S.E.2d 705 (2011).

Here, contrary to Winn’s contention, there was evidence of his constructive possession of the drugs and firearm beyond his mere presence in the bedroom from which the jury could find beyond a reasonable doubt that he had access, power, and intention to exercise dominion or control over the drugs and firearm found in his room. See Howard v. State , 291 Ga. App. 386, 388, 662 S.E.2d 203 (2008) (for a conviction based on circumstantial evidence, "the proved facts shall not only be consistent with the hypothesis of guilt but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury.") (citation, punctuation, and emphasis omitted).

2. Winn contends that the trial court erred in denying his motion to suppress because the warrant affidavit contained false statements without which the warrant was unsupported by probable cause. He asserts that the search warrant contained several false statements, including, the admittedly false statement that Winn "was found on the property, in which he claims he does not live, attempting to make a drug transaction with several young white females." He also contends that the statement in the warrant that the items in the second bedroom were visible "through the open door...in plain view from the living room" directly conflicted with the officer’s testimony at a probable cause hearing that he had pushed open the door. Winn asserts that without these false statements there was no probable cause shown in the affidavit to support the issuance of the search warrant and, thus the trial court should have granted his motion to suppress. We do not agree.

A magistrate may issue a search warrant only when the circumstances set forth in the affidavit establish probable cause that contraband or evidence of a crime will be found in a particular place. State v. Palmer , 285 Ga. 75, 77–78, 673 S.E.2d 237 (2009). On appeal, we must determine whether the magistrate had a "substantial basis" for concluding that probable cause existed to issue the search warrant. Amica v. State , 307 Ga. App. 276, 278 (1), 704 S.E.2d 831 (2010). "[D]oubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper." (Citation and punctuation omitted.) Sullivan v. State , 284 Ga. 358, 361 (2), 667 S.E.2d 32 (2008).

In reviewing the trial court’s grant or denial of a motion to suppress, we apply the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review,

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