Dodd v. State

752 S.E.2d 29, 324 Ga. App. 827, 2013 Fulton County D. Rep. 3893, 2013 WL 6068481, 2013 Ga. App. LEXIS 943
CourtCourt of Appeals of Georgia
DecidedNovember 19, 2013
DocketA13A1254
StatusPublished
Cited by6 cases

This text of 752 S.E.2d 29 (Dodd 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
Dodd v. State, 752 S.E.2d 29, 324 Ga. App. 827, 2013 Fulton County D. Rep. 3893, 2013 WL 6068481, 2013 Ga. App. LEXIS 943 (Ga. Ct. App. 2013).

Opinion

ANDREWS, Presiding Judge.

Following a jury trial, William Dodd appeals his conviction for possession of methamphetamine with the intent to distribute. He contends the evidence was insufficient to sustain his conviction and the State failed to prove venue beyond a reasonable doubt. He further contends the trial court’s charge on similar transactions was too broad and misstated the law and the trial court erred by admitting evidence of a similar transaction. Finally, Dodd contends his trial defense counsel was ineffective for failing to object to the court’s instruction on similar transactions. Because we find that the charge on similar transactions substantially expands the limited purposes for which similar transaction evidence can be used, we must reverse Dodd’s conviction.

[828]*8281. Dodd alleges the evidence was insufficient to convict him of possession of methamphetamine with the intent to distribute because no direct evidence showed that Dodd intended to sell the methamphetamine found in the Gatorade cap seized in his car. Dodd contends the State had the burden of showing that the circumstantial evidence excluded every reasonable hypothesis except that of Dodd’s guilt of intending to distribute the methamphetamine, and it failed to carry this burden. See Driscoll v. State, 295 Ga. App. 5, 7 (1) (a) (670 SE2d 824) (2008).

When this Court reviews the sufficiency of evidence, “the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Dean v. State, 273 Ga. 806, 806-807 (1) (546 SE2d 499) (2001). We review the evidence in the light most favorable to the verdict, giving deference to the jury’s determination as to the proper weight and credibility to be given. Id. at 807 (1). It is the function of the jury, not an appellate court, to assess the credibility of the witnesses, to resolve any conflicting evidence, and to determine the facts. Butler v. State, 273 Ga. 380, 382 (1) (541 SE2d 653) (2001). If competent evidence exists, though contradicted, to support the facts necessary to prove the State’s case, we will not reverse the jury’s verdict. Childress v. State, 251 Ga. App. 873, 876 (2) (554 SE2d 818) (2001).

Viewed in the light most favorable to the verdict, the evidence showed that Dodd was stopped by a deputy sheriff because the passenger in Dodd’s car was not wearing a seat belt. After he returned to his car to check Dodd’s and his passenger’s names, the deputy saw the passenger throw something out of his window that was like a “puff of cloudy smoke . . . like a white, powdery looking substance just went into the air and just disappeared.” The deputy removed the passenger from the car and, after learning he had an outstanding warrant, placed the passenger under arrest.

Based upon Dodd’s consent to search his car, the deputy searched the car and found a Gatorade bottle cap containing a substance later determined to be methamphetamine. The deputy also found a plastic baggy containing residue of a crystal substance. The deputy testified that the baggy was a “corner baggy” of the type typically used to package drugs. After the deputy also found digital scales with a crystal substance on its face, Dodd said that he would beat the charge and that he deals jewelry on the side. Neither the crystal substance in the bag nor the crystal substance on the scales was tested for the presence of methamphetamine.

[829]*829The State also presented evidence of two similar transactions. One involved Dodd’s guilty plea to possession of a bag of methamphetamine that was found in his car after a traffic stop in Fannin County, and the other, from Gilmer County, arose from drugs seized during the search of Dodd’s home. An officer testified that during the search, he found several corner cut baggies containing methamphetamine, different prescription pills, scales, and a ledger containing numbers and quantities, which in accordance with the officer’s expertise in drug-related crime, related to the drug dealing business.

The Fannin County similar transaction resulted from an incident in which Dodd’s car was stopped for a suspected window tint violation. During the search of the car, a bag of methamphetamine was found in the driver’s side door. Dodd pled guilty to possession of methamphetamine.

“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.” (Citations omitted.) Haney v. State, 261 Ga. App. 136, 138 (1) (581 SE2d 626) (2003).

[(Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law. It is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient.

(Citations and punctuation omitted.) Brooks v. State, 281 Ga. 514, 515-516 (1) (640 SE2d 280) (2007).

We conclude that the jury rationally could have found from the evidence discussed above, both direct and circumstantial, that every reasonable hypothesis was excluded except that Dodd possessed the methamphetamine with the intent to distribute it, and the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Dodd was guilty of the offense of which he was convicted. Jackson v. Virginia, supra.

2. Dodd contends the trial court’s initial charge on similar transactions misstated the law and was overly broad. We agree. Although objecting to the charge on other grounds, Dodd’s trial defense counsel did not object on the ground that the charge was a [830]*830misstatement of the law which Dodd now asserts on appeal.

When a party fails to object to a jury charge or the omission of a charge during trial but raises the issue on appeal, this Court reviews the charge for plain error. The proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.

(Citations and punctuation omitted.) Simmons v. State, 291 Ga. 705, 712 (9) (b) (733 SE2d 280) (2012). Therefore, even in the absence of a proper objection below, we would ordinarily consider the issue which Dodd raises on appeal for plain error. Because, however, Dodd also has challenged the performance of his defense counsel for failing to object to the charge, we must consider whether counsel’s failure to object to the charge constituted ineffectiveness of counsel.

Under our law,

[t]o prevail on a claim of ineffective assistance, a defendant must show that counsel rendered deficient performance and that actual prejudice resulted. Counsel are strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, and counsel’s performance is evaluated without reference to hindsight.

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Bluebook (online)
752 S.E.2d 29, 324 Ga. App. 827, 2013 Fulton County D. Rep. 3893, 2013 WL 6068481, 2013 Ga. App. LEXIS 943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dodd-v-state-gactapp-2013.