Beville v. State

745 S.E.2d 858, 322 Ga. App. 673, 2013 Fulton County D. Rep. 2356, 2013 WL 3336635, 2013 Ga. App. LEXIS 583
CourtCourt of Appeals of Georgia
DecidedJuly 3, 2013
DocketA13A0796
StatusPublished
Cited by4 cases

This text of 745 S.E.2d 858 (Beville 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
Beville v. State, 745 S.E.2d 858, 322 Ga. App. 673, 2013 Fulton County D. Rep. 2356, 2013 WL 3336635, 2013 Ga. App. LEXIS 583 (Ga. Ct. App. 2013).

Opinion

DOYLE, Presiding Judge.

Phillip James Beville was tried in a bench trial and convicted of trafficking in cocaine1 and possession of less than one ounce of marijuana.2 Following the denial of his motion for a new trial, Beville appeals, contending: (1) the evidence was insufficient to support the verdict; (2) he did not effectively waive his right to a jury trial; (3) the trial court erred in failing to grant Beville’s motion to suppress; and (4) the State failed to prove the chain of custody of the alleged contraband. For the reasons set forth below, we affirm.

Construing the evidence in favor of the verdict,3 the record shows that late at night on April 30, 2010, an officer was on patrol watching westbound traffic on 1-20 for moving violations. The officer observed Beville driving a vehicle that the officer believed had an illegal window tint,4 so he activated his emergency lights and executed a traffic stop. The officer approached the vehicle, and he immediately smelled the odor of burnt marijuana as Beville rolled down his window.

Beville exited the vehicle and consented to a search of his person, warning the officer of three knives in his pocket. While retrieving the knives, the officer felt a plastic bag in Beville’s pocket. The officer sought and received permission to remove the bag, which contained what he suspected to be marijuana based on his training and experience. The officer placed Beville under arrest for possessing the [674]*674marijuana, and because Beville was alone and the vehicle was on the side of a highway late at night, the officer began an inventory search of Beville’s vehicle.

The search revealed a cigar tube containing burnt marijuana cigarettes, as well as a black grocery bag containing 498.78 grams of cocaine. Beville admitted to the officer that the bag contained cocaine.

Beville was indicted for trafficking in cocaine, possessing marijuana in violation of the Georgia Controlled Substances Act, and having an illegal window tint. After a bench trial, Beville was found guilty on the drug counts and acquitted of the window tint violation. Beville’s motion for new trial was denied, giving rise to this appeal.

1. Beville contends that the evidence was insufficient to support the verdict because the record fails to show that he knowingly possessed 28 grams or more of cocaine. We disagree.

When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime [s] charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all the evidence is to be considered in the light most favorable to the prosecution.5

“OCGA § 16-13-31 (a) (1) provides that ‘[a]ny person . . . who is knowingly in possession of 28 grams or more of cocaine or any mixture with a purity of 10 percent or more of cocaine . . . commits the felony offense of trafficking in cocaine.’ ”6 Regarding the sufficiency of the evidence, Beville’s only argument is that no evidence showed that he knew the weight of the cocaine, but that argument has been rejected by Cleveland v. State.7 In Cleveland, this Court [675]*675stated that

[t]he trafficking statute explicitly requires as the mens rea that defendant know he or she possesses the substance and know it is cocaine. The statute is not, however, reasonably subject to the construction urged, that defendant must know or should know the substance possessed weighs at least 28 grams.8

Here, the State proved that Beville knowingly possessed the cocaine in his vehicle.9 When asked about the brick of cocaine in his vehicle, Beville identified it as cocaine. Further, in a post-arrest interview, Beville admitted to a detective that he knew the brick was cocaine and that he was transporting it for payment. This evidence supports a finding that Beville knowingly possessed cocaine in violation of OCGA § 16-13-31 (a) (1) (C).10

2. Beville contends that the State did not carry its burden to show that he knowingly waived the right to a jury trial. We disagree.

A defendant’s right to trial by jury is one of those fundamental constitutional rights that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive. This Court will affirm a trial court’s decision that a defendant has validly waived his or her right to a jury trial unless that decision is clearly erroneous. When a defendant challenges the defendant’s purported waiver of the right to a jury trial, the State bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.11

[676]*676Here, the record contains a waiver form executed by Beville stating that he “freely and voluntarily waive[d] his right to a jury trial.” The record also contains a colloquy by the trial court confirming Beville’s waiver, as well as counsel’s thorough explanation of his discussions with Beville and his reasons for proceeding with a bench trial. Further, the trial judge’s own observations of Beville’s demeanor during the hearing support the finding that he intelligently, knowingly, freely, and voluntarily waived his right to a jury trial. In light of the record, we discern no clear error by the trial court in ruling that Beville’s waiver of a jury trial was knowing and voluntary.

3. Beville contends that the trial court erred by failing to suppress the evidence from the traffic stop because (a) the traffic stop was not based upon a reasonable articulable suspicion and (b) the narcotics were not found pursuant to a legitimate inventory search. We disagree.

(a) The search was based upon a reasonable articulable suspicion.

(i) It is well settled law

that before stopping a car, an officer must have specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. But a traffic offense provides the necessary facts for such reasonable suspicion and when an officer witnesses a traffic offense, a resulting traffic stop does not violate the Fourth Amendment, regardless of the officer’s motives for initiating the stop.12

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Bluebook (online)
745 S.E.2d 858, 322 Ga. App. 673, 2013 Fulton County D. Rep. 2356, 2013 WL 3336635, 2013 Ga. App. LEXIS 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beville-v-state-gactapp-2013.