Barnes v. State

334 S.E.2d 205, 175 Ga. App. 621, 1985 Ga. App. LEXIS 2811
Court of Appeals of Georgia·Decided July 16, 1985·No. 69969·Published·Cited by 12 cases

Opinions

Beasley, Judge.

Appellants Sherman Anthony (Tony) Barnes and Jimmy Lou Barnes were indicted for seven violations of the Georgia Controlled Substances Act. A verdict was directed by the trial court as to Counts 2 and 7, conspiracy to distribute marijuana and possession of dextropropoxyphene (Darvon). The jury acquitted them on Counts 3, 5, and 6 for possession of cocaine, hydroxyzine and phendimetrazine (Preludin). They were found guilty of Count 1 for maintaining a dwelling house where controlled substances are stored (OCGA § 16-13-42 (a) (5)), and Count 4 for possession of less than one ounce of marijuana (OCGA § 16-30-2 (b)), from which verdicts they appeal..

1. Appellants contend that their convictions must be reversed because the evidence was insufficient as a matter of law under the equal access doctrine.

The jury in this case heard a great deal of evidence over three days’ time. Its twelve members were able to observe the witnesses, their mannerisms, their attitudes, their reactions to questions and answers and incidents occurring during the trial. They were able to hear the testimony as it was given, in the myriad of nuances in tone, inflec[622] tion, gesture, and hesitation. They were able to take into account all of this and the other particulars surrounding the presentation of a live case.

We are unable to do that, to share the same sensory perceptions when reviewing a written transcript of only the words that were said. The subtleties detectible by alert jurors whose sole attention is focused on the unfolding of the case as it occurs is lost to us. “This court has always recognized that the greatest weight and consideration should be paid to the verdicts of juries, and in many cases has held that while the verdict was different from what the judges would have rendered as men, the court would not interfere. So, too, where the evidence was conflicting, it would not disturb the finding, although it might think that the preponderance was in favor of the losing party. In testing the sufficiency of evidence this court can not consider the credibility of witnesses, that being a matter exclusively for the jury, who note their manner of testifying, and consider the thousand and one things transpiring during a trial, which can not be photographed or transcribed and transmitted to this court as a part of the record. But while it can not consider the credibility of a witness, it must consider the nature and character of his testimony, whether it is in accord with natural laws, or is improbable, incredible, or seeks to establish facts which are impossible, or which, if not impossible, must in their very nature be uncertain, vague, indefinite, and insufficient to remove reasonable doubts . . . and often find verdicts contrary to the direct testimony of a witness, because their experience demonstrates that what the witness said could not have been true.” Patton v. State, 117 Ga. 230, 234 (43 SE 533) (1902). “We will not speculate as to what evidence the jury chose to believe or disbelieve. On appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict. [Cit.]” Rhodes v. State, 168 Ga. App. 10, 11 (308 SE2d 33) (1983). “ ‘Weighing the evidence and finding the truth in an obscure or doubtful case is work that can usually be well done, best done, by a jury of the vicinage’ and ‘what they promulgate by their verdict as the value of the whole, and as the ultimate truth of the matter in controversy, ought to be accepted.’ Smith v. State, 63 Ga. 90.” Booker v. State, 50 Ga. App. 66, 68 (176 SE 917) (1934). “It is basic that after a verdict of guilty the appellate courts must draw every inference and presumption in favor of the verdict. [Cits.]” Sanford v. State, 129 Ga. App. 337, 338 (3) (199 SE2d 560) (1973).

Thus, the jury’s function is to weigh the evidence and ascertain the credibility of the witnesses and of their testimony. Barton v. State, 40 Ga. App. 504 (150 SE 449) (1929); Burse v. State, 41 Ga. App. 364 (153 SE 91) (1930). They may accept or reject all or any part of the testimony of any witness. Burke v. State, 196 Ga. 702, 707 [623] (27 SE2d 313) (1943); Davis v. State, 205 Ga. 248, 254 (5) (53 SE2d 545) (1949); Johnson v. State, 69 Ga. App. 663 (1) (26 SE2d 482) (1943). That is not our function. Williams v. State, 150 Ga. App. 852, 854 (258 SE2d 659) (1979); Clary v. State, 151 Ga. App. 301 (1) (259 SE2d 697) (1979). In our society we have delegated the task of determining the truth to lay citizens of the community in which crime occurs; they are not mere advisors to judges.

For these and perhaps other reasons, on appeal “[w]e are bound to take the evidence most strongly in favor of the jury’s verdict. [Cit.]” Webb v. State, 170 Ga. App. 115 (316 SE2d 561) (1984). We may not substitute our opinion of the evidence for the combined wisdom of those twelve persons.

The trial judge is often regarded as the thirteenth juror, in the context of his authority to grant a motion for new trial. Ricketts v. Williams, 242 Ga. 303, 304 (284 SE2d 673) (1978). “[W]here no error of law is shown and there is some evidence to support the finding of the jury, we have no power under the law to invade the province of the jury or overrule the trial judge, who, fresh from the atmosphere of the trial, sends to us a record in which he endorses the finding of the jury which tried the case in his presence. This is true even in cases where the evidence might be described as weak, unsatisfactory, and doubtful.” Pittman v. State, 44 Ga. App. 204, 205 (161 SE 155) (1931). Rhodes v. State, supra. In this case, having sat and observed and heard the same, as the court did, it affirmed the jury’s verdict and found the evidence sufficient to warrant it.

Taking all of this into account, on appeal as to the general grounds we must affirm if “any rational trier of fact could have found [defendants] guilty as charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Webb v. State, supra at (3).

In that legal context, then, we affirm the convictions.

The Barneses operate a used car business in Ranger, on the site of which are located the office, the Barneses’ personal residence (a double-wide trailer) and trailers where Mrs. Barnes’ father and employees live. In the middle of the afternoon of May 18, 1984, a number of law enforcement officers and a dog trained to sniff out drugs arrived in five vehicles to execute a search warrant for the home and office.1

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Barnes v. State, 334 S.E.2d 205, 175 Ga. App. 621, 1985 Ga. App. LEXIS 2811 (Ga. Ct. App. 1985).

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