Cobarrubias-Garcia v. State

730 S.E.2d 455, 316 Ga. App. 787, 2012 Fulton County D. Rep. 2421, 2012 Ga. App. LEXIS 653
CourtCourt of Appeals of Georgia
DecidedJuly 11, 2012
DocketA12A0662
StatusPublished
Cited by9 cases

This text of 730 S.E.2d 455 (Cobarrubias-Garcia 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
Cobarrubias-Garcia v. State, 730 S.E.2d 455, 316 Ga. App. 787, 2012 Fulton County D. Rep. 2421, 2012 Ga. App. LEXIS 653 (Ga. Ct. App. 2012).

Opinion

MlKELL, Presiding Judge.

Alfonso Cobarrubias-Gareia (appellant) was convicted by a jury of trafficking in cocaine,1 trafficking in methamphetamine,2 and possession of a firearm during the commission of a felony.3 He was acquitted of misdemeanor possession of marijuana. He appeals the denial of his amended motion for new trial, challenging the sufficiency of the evidence. Because the state failed to prove any connection between appellant and the contraband other than spatial proximity, we reverse.

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.4

The standard of review in evaluating the sufficiency of the evidence is “whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.”5

So viewed, the evidence shows that FBI narcotics agents, investigating a suspected shipment of cocaine from Mexico to Atlanta, were led to a house located at 3070 Dowry Drive in Gwinnett County. On April 30, 2008, at 10:30 p.m., the agents conducted a “knock and talk” at the house, hoping to gather information from the occupants and to obtain permission to conduct a search. The agents knocked on the door for about three minutes before Alejandro Navarette-Garcia opened the door and told the agents that he neither lived in nor owned [788]*788the residence. Appellant, Efrain Navarette-Garcia, Leticia Rodriguez-Fuentes, and Asuel Navarette-Vasquez were also found in the house.6 Both Efrain and Alejandro told the agents they had been living at the house for several days after arriving from Mexico. Asuel told the agents that he had been living in the house for two weeks, and he consented to the officers’ search of the house, despite the lack of a warrant.

Upon entering, the agents performed a protective sweep of the house, which revealed four weapons and a quantity of marijuana. Following this discovery, the agents placed under arrest all five of the people found in the home, including appellant.7 After his arrest, Asuel refused to sign a consent to search form, so the agents sought and obtained a search warrant.

Upon execution of the search warrant, officers found the following contraband in the house: hidden in the attic, two guns; hidden in the fireplace chimney, a plastic container of methamphetamine; on the fireplace mantle, a ledger containing drug transaction notes; hidden inside the clothes dryer, a money counter; in a corner of the living room, a “shrine” related to drug trafficking; hidden inside a wall behind a medicine cabinet in one bathroom, five plastic containers of methamphetamine; and in the other bathroom, hidden inside a wall behind a medicine cabinet, a large quantity of cocaine, over $46,000 in cash, and notes regarding drug transactions. Additionally, a search of one bedroom, believed to have been shared by Efrain and Alejandro, revealed three guns: one under a mattress, one inside a suitcase, and one under a bed. The search of another bedroom, identified as room “E,” revealed a gun under a pillow on a sleeping bag lying on the floor, two more guns in the bed, and a pair of plaid shorts and a dark colored t-shirt with a light colored logo across the chest.

FBI Special Agent Ronald Campbell testified that, during his surveillance of the house prior to executing the search warrant, he noticed a man exit the subject house and obtain a lawnmower from a neighboring house. The man, whom Campbell identified as appellant, then pushed the lawnmower back to 3070 Dowry Drive and proceeded to cut the grass. Campbell also identified the clothes located in bedroom “E” as the clothes appellant wore while cutting the grass.

[789]*789Leticia testified at trial that she knew appellant because she had served him and the co-defendants several times before at the restaurant where she worked. Leticia testified that she was Asuel’s girlfriend; that she saw appellant at the house when she was there cooking for the men about a week prior to the arrests; and that she had been in and out of the house on the night of the arrest in order to shop and cook for the men. Leticia stated that she saw appellant at the house earlier that day, and that she had seen him walk into bedroom “E” at least once.

Miguel Fulleda, the real estate agent who managed the house for its owner, stated that when he visited the house about a month earlier to collect the rent, he saw appellant there, playing cards with the co-defendants.

Appellant testified on his own behalf at trial, stating that he had been living in Roswell with a friend for the past three months. Appellant further testified that he had never visited 3070 Dowry Drive prior to the day of the arrest; and that he was at the house earlier that day because he was to be paid $50 to cut the grass. He borrowed clothes from another occupant in the house to wear while cutting the grass; afterward, he left the clothing in bedroom “E.” Appellant stated that he left the house because there was no one to pay him at that time. He was later told to arrive at the house around 10:00 p.m. to receive his payment. Once at the house, appellant testified that he stood hy the door because he did not know Alej andró or Efrain and did not feel comfortable sitting with them on the couch.

Appellant contends that the state failed to prove that he knowingly possessed the drugs because he was not the owner or lessee of the house; no contraband was found on his person; and the evidence did not link him with the drugs found hidden in the house. We agree.

An essential element of trafficking in cocaine and trafficking in methamphetamine is the knowing possession of 28 grams or more of the substances. Possession maybe actual or constructive and joint or exclusive, but mere spatial proximity to the contraband is not sufficient to prove joint constructive possession,8 “especially where, as here, the contraband is hidden.”9 Instead, the state must demonstrate that appellant had the power and intent to exercise dominion or control over the cocaine and methamphetamine.10

To do this, the state must provide “evidence of a connection linking the defendant to the contraband other than his mere spatial [790]*790proximity.”11

A connection can be made between a defendant and contraband found in his presence by evidence which shows that the contraband was discovered on premises occupied and controlled by the defendant with no right of equal access and control in others. Such occupation and control maybe inferred when the accused is the owner or tenant of the premises upon which the illicit drugs are discovered. However, a mere occupant, as distinguished from a resident, does not necessarily have the requisite control over the premises to authorize the inference that he possesses all property found thereon. If such were the case, a person’s mere presence at the scene of the discovery of illegal drugs would authorize his conviction, and that plainly is not the law.12

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Bluebook (online)
730 S.E.2d 455, 316 Ga. App. 787, 2012 Fulton County D. Rep. 2421, 2012 Ga. App. LEXIS 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobarrubias-garcia-v-state-gactapp-2012.