Bacon v. State

483 S.E.2d 894, 225 Ga. App. 326, 97 Fulton County D. Rep. 1405, 1997 Ga. App. LEXIS 370
CourtCourt of Appeals of Georgia
DecidedMarch 10, 1997
DocketA96A1761
StatusPublished
Cited by30 cases

This text of 483 S.E.2d 894 (Bacon v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bacon v. State, 483 S.E.2d 894, 225 Ga. App. 326, 97 Fulton County D. Rep. 1405, 1997 Ga. App. LEXIS 370 (Ga. Ct. App. 1997).

Opinions

Blackburn, Judge.

Nathan Jerome Bacon was convicted by a jury of possession of cocaine with intent to distribute and was sentenced to life in prison. He appeals and in his sole enumeration of error contends that the evidence adduced at trial was insufficient to support the conviction.

The facts show that on August 5,1994, Bacon was a passenger in a pickup truck being driven by Lucius Charles Walker. After observing allegedly illegal window tinting on the windshield of the pickup, Georgia State Patrolman Johnny Kennedy stopped Walker’s vehicle. Bacon exited the vehicle at the request of Officer Rick Rountree, and when he got out of the truck, he was holding a white styrofoam cup and a white paper bag. Bacon showed Rountree that the bag contained a piece of chicken and some napkins.

While the officers were speaking with Walker, Bacon began repeatedly circling the truck. Although the officers told him several times to stand still, he continued to circle and at some point placed the bag and cup in the back of the truck. Concerned for his safety because Bacon had continuously ignored his directions, Trooper Kennedy handcuffed Bacon and placed him in the back of the patrol car.

Immediately thereafter, a witness who had been watching these events informed Trooper Kennedy that he had seen Walker throw something white out of the truck and into the woods. The object was identified as a white styrofoam cup containing 6.5 grams of cocaine. Examination of the white paper bag revealed 3.3 grams of cocaine. All 9.8 grams of this cocaine was in large, chunky pieces. Walker testified against Bacon at trial, and confirmed that when Bacon signaled him from the back of the patrol car, Walker threw the styrofoam cup containing cocaine from the truck. Walker also testified that all of the cocaine belonged to Bacon.

At trial, Officer Rountree testified that 9.8 grams of cocaine, the amount of cocaine discovered, was consistent with distribution and was “extremely unusual for one person to have for his personal use.” Rountree was qualified by the trial court as an expert, but was not tendered as an expert. In addition to Rountree’s testimony, former drug task force special agent Brian Rogers testified as to what quantity of cocaine he would routinely purchase for “personal use” in an undercover buy. According to Rogers, a typical cocaine user would [327]*327buy only one or two rocks of crack cocaine at a time — no more than one-half gram of cocaine. The court did not charge the jury on expert testimony, and Bacon contends that his conviction must be reversed because the State presented no competent evidence at trial regarding his intent to distribute.

To prove possession with intent to distribute, a qualified expert may offer opinion testimony regarding his “knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution.” Davis v. State, 200 Ga. App. 44, 46 (2) (406 SE2d 555) (1991). Such expert testimony, coupled with evidence of the amount of cocaine found in the defendant’s possession, is admissible to prove the defendant’s intent to distribute the controlled substance. Where no additional evidence of intent to distribute is offered, such as scales, drug paraphernalia, large amounts of cash, division of cocaine into individual packages, or a prior conviction of possession with intent to distribute, the expert testimony is critical, and the conviction cannot be sustained without it. See generally James v. State, 214 Ga. App. 763, 764 (449 SE2d 126) (1994). This is so because “[m]ere possession of contraband without more will not serve as the basis for a conviction for possessing contraband for purposes of sale.” (Citations and punctuation omitted.) Id.

Relying on the expert testimony issue, Bacon cites Stephens v. State, 219 Ga. App. 881 (467 SE2d 201) (1996) (physical precedent only), as support for his argument that his conviction must be reversed.1 Bacon argues that Rountree was not qualified as an expert to give opinion testimony regarding the amount of cocaine discovered, and as no other evidence of intent to distribute was adduced, his conviction cannot stand.

Bacon’s contention that Officer Rountree was not qualified as an expert is not supported by the record. The trial court in this case found that Rountree was qualified to give his expert opinion. The State laid a foundation for his testimony, and Bacon’s objection thereto was overruled. Rountree then testified, “[t]his quantity of cocaine would be extremely unusual for one person to have for his personal use.” Bacon’s argument that Rountree’s testimony was the only evidence offered of his intent to distribute is also inaccurate. In addition to Rountree, the State offered the testimony of former drug task force agent Brian Rogers. Rogers testified that he had two years [328]*328experience as a drug task force agent, that he had made numerous undercover buys, and that he had participated in approximately 500 drug investigations. After so qualifying himself, Rogers testified that a cocaine user would purchase only approximately one-half gram of cocaine at a time. Bacon allowed this testimony to come in without objection, and the State therefore presented the opinion of two qualified experts regarding Bacon’s intent to distribute.

Bacon’s argument that Rountree’s testimony was the only evidence offered of his intent to distribute also fails to acknowledge the other competent evidence of Bacon’s guilt. Walker, Bacon’s companion at the time of the stop, testified that all 9.8 grams of cocaine belonged to Bacon. The large amount of cocaine involved, 9.8 grams, is itself evidence of intent to distribute. See Kinney v. State, 199 Ga. App. 354 (405 SE2d 98) (1991) (substantial quantity of contraband, seven rocks of cocaine, was evidence of intent to distribute); see also Hayes v. State, 203 Ga. App. 409, 410 (417 SE2d 45) (1992) (quantity of cocaine possessed, seven rocks, illustrates intent to distribute). The large chunks of cocaine found were also consistent with distribution. See Williams v. State, 208 Ga. App. 460 (1) (431 SE2d 130) (1993) (large chunk of cocaine weighing less than seven grams was, inter alia, evidence of intent to distribute).

Bacon also suspiciously circled the stopped truck, causing Trooper Kennedy to handcuff him and place him in the back of the patrol car. See Dyer v. State, 218 Ga. App. 879, 880 (463 SE2d 718) (1995) (reversal of a conviction for possession with intent to distribute which notes, inter alia, the absence of any testimony that the defendant acted suspiciously). Together with the testimony of Rountree and Rogers, all of this additional evidence was sufficient to prove Bacon’s possession with intent to distribute beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Bacon’s argument that his conviction must be reversed because the State did not formally tender either Rountree or Rogers as an expert is also without merit. The basis of the reversal in Stephens, the case Bacon relies upon for his tender argument, was the incompetent “unqualified testimony” of the officer, not the fact that the officer was qualified as an expert but never formally tendered as such. Stephens, supra at 883. See Henry v. State, 265 Ga.

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Bluebook (online)
483 S.E.2d 894, 225 Ga. App. 326, 97 Fulton County D. Rep. 1405, 1997 Ga. App. LEXIS 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bacon-v-state-gactapp-1997.