SECOND DIVISION MERCIER, C. J., MCFADDEN, P. J. and RICKMAN, P. J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
May 16, 2025
In the Court of Appeals of Georgia A25A0567. BROWN v. THE STATE.
RICKMAN, Presiding Judge.
Following a jury trial, Drevoisier Brown was convicted on one count of armed
robbery, one count of aggravated assault, one count of violation of the Street Gang
Terrorism and Prevention Act, and one count of trafficking methamphetamine in
violation of the Georgia Controlled Substances Act.1 Brown argues that the evidence
was insufficient to sustain his convictions. He further argues that the trial court
1 In addition to the charges listed above, Brown was also charged with and found guilty of an additional count of armed robbery, an additional count of aggravated assault, and one count each of possession of methamphetamine with intent to distribute and possession of methamphetamine, but those counts merged with his other convictions for sentencing purposes. See OCGA § 16-1-7 (a); see Drinkard v. Walker, 281 Ga. 211, 212-213 (636 SE2d 530) (2006). He was also charged with burglary in the second degree, but the trial court entered an order of nolle prosequi as to that count. committed plain error by admitting evidence related to a tracking dog without a proper
foundation and abused its discretion by removing a juror. We affirm Brown’s
convictions on armed robbery, aggravated assault, and violation of the Street Gang
Terrorism and Prevention Act, but agree with him that the evidence was insufficient
to establish that he violated the Georgia Controlled Substances Act. Accordingly, we
reverse his conviction on trafficking methamphetamine, as well as the lesser charges
that merged into that conviction for sentencing purposes, and remand this case for
resentencing in accordance with this opinion.
On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LEd2d 560) (1979).
(Citation and punctuation omitted.) Johnson v. State, 340 Ga. App. 429, 430 (797
SE2d 666) (2017).
So construed, the evidence adduced at trial showed that on the evening in
question, the victim was working as a clerk in a convenience store when two masked
2 men entered the store. One of the men pointed a gun at the victim and demanded that
she not look at him, while the other came around the counter, took the victim’s purse,
and began filling it with the cash from the store’s registers. The men fled the store
with the victim’s purse containing both the money from the store’s registers and the
victim’s wallet and other personal items. The victim called 911 after the men left.
Upon arriving to the scene, an investigator viewed the store’s surveillance video
and determined the direction the perpetrators fled upon leaving the store. A K-9 unit
then tracked the perpetrators’ scent from the convenience store to a ski mask
abandoned in the grass a short distance away. Meanwhile, the investigator viewing the
surveillance footage noticed that one of the perpetrators pushed the store’s glass door
open with an ungloved hand. He thereafter lifted and developed a latent fingerprint
from that area of the glass and ran it through a law enforcement database. The
fingerprint was determined to match that of Brown’s accomplice, Lend Jefferson.
The investigator, who was familiar with Brown’s accomplice, subsequently
went onto the accomplice’s social media account and viewed a video that had been
posted less than 15 minutes after the robbery. The video showed Brown singing and
flashing large sums of cash. The investigator also viewed other pictures from the same
3 social media account in which Brown’s accomplice wore clothing and shoes that
appeared to match the clothing worn by the gunman as seen in the store’s surveillance
footage.
Law enforcement officers thereafter obtained an arrest warrant for Brown’s
accomplice and went to his last known address, a home located near the convenience
store, to execute the warrant. There, they located Brown, his accomplice, and his
accomplice’s girlfriend. In the process of clearing the home, the officers observed a
clear corner bag containing what appeared to be a small amount of narcotics and a box
of ammunition in plain view inside. Consequently, a warrant to search the house was
obtained.
The ensuing search of the disheveled home resulted in the discovery of the
victim’s purse, wallet, and other personal items strewn amongst the trash, laundry,
and other items littering the floor. Included in the disarray was clothing and shoes
resembling those worn by both perpetrators as seen in the store’s surveillance footage.
The officers also seized a bag containing various pills that were later determined to
consist of more than 28 grams of methamphetamine and a scale, both of which were
recovered in the bedroom from which Brown and his accomplice emerged upon the
4 officers’ arrival. Brown’s wallet containing his identification card,2 as well as
paperwork containing his name, were located inside a small safe containing over $350
in cash that was found in “a makeshift living area” in the common area of the house.
Finally, a handgun similar to that used in the armed robbery was discovered in the
accomplice’s girlfriend’s car parked in front of the house, and the ammunition in the
gun matched that which was found inside the home.
Brown, his accomplice, and his accomplice’s girlfriend were all subsequently
arrested and charged with various crimes, although they were each tried separately.
During Brown’s trial, the State presented expert testimony that certain of Brown’s
tattoos and other exhibited behaviors indicated his involvement in a street gang, and
admitted text messages extracted from Brown’s cellular phone that included
references to drugs. In addition, evidence was presented that the ski mask found
abandoned near the scene of the robbery contained Brown’s DNA.
2 We note that one of the officers testified that “to the best of [his] recollection,” all three of the perpetrators’ identification cards were found in the bedroom in which the drugs were found. There was definitive testimony and photographic evidence presented, however, that Brown’s identification card was located in the safe found in the common area of the house. Regardless, even if a second form of Brown’s identification was found interspersed amongst the other items in the bedroom, it would not affect the outcome of this opinion. 5 The jury convicted Brown, who then filed a motion for new trial. The trial court
denied the motion, and this appeal followed.
1. Brown contends that the evidence was insufficient to support his convictions.
Arguing that the State’s case was based solely on circumstantial evidence, he asserts
with respect to the crimes of armed robbery and aggravated assault that the State
failed to prove his identity; as to the crime of trafficking in methamphetamine, he
asserts that the State failed to prove possession.3
When a conviction is based on circumstantial evidence, OCGA § 24-14-6 requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Whether any alternative hypotheses are reasonable and whether the circumstantial evidence excludes any such hypotheses are questions for the jury, and we will not disturb the jury’s findings on those questions unless they are insupportable as a matter of law.
(Citation and punctuation omitted; emphasis in original.) Wilson v. State, 319 Ga. 550,
553 (1) (905 SE2d 557) (2024). We will address each of Brown’s arguments in turn.
3 Brown does not challenge the sufficiency of the evidence underlying his conviction on violation of the Street Gang Terrorism and Prevention Act. 6 (a) Brown maintains that the circumstantial evidence presented at trial was
insufficient to establish his identify as a perpetrator of the armed robbery and
aggravated assault. Even assuming that the identity evidence against him was solely
circumstantial, it was nevertheless substantial and legally sufficient.
Specifically, within 15 minutes of the store being robbed, Brown was seen in a
social media post displaying large sums of cash. He was located in a home containing
the victim’s belongings, clothing and shoes matching that worn by the perpetrators as
seen in the surveillance video, and ammunition for a handgun similar to that used in
the robbery located in a car in front of the home. Brown’s DNA was present in a mask
that was used in and found near the scene of the robbery. Although Brown points out
that a female’s DNA was also present in the mask and argues that the accomplice’s
girlfriend could have been the second assailant, the victim testified definitively that
both perpetrators were male. The jury was free to reject Brown’s alternative
hypothesis that the girlfriend committed the crimes. See Minor v. State, 328 Ga. App.
128, 131 (1) (761 SE2d 538) (2014) (“[I]t is not sufficient that the circumstantial
evidence show that the act might by bare possibility have been done by somebody
7 else”) (citation and punctuation omitted); see also Roberts v. State, 322 Ga. App. 659,
662-663 (2) (a) ( 745 SE2d 850) (2013).
(b) Brown also contends there was insufficient evidence to support a finding
that he possessed the trafficking amount of methamphetamine found in the home. On
this point, we agree.
To establish the crime of trafficking in methamphetamine, the State was
required to prove that Brown was at least in joint possession of 28 grams or more of
the drug. See OCGA § 16-13-31 (e) (“[A]ny person who . . . has possession of 28
grams or more of methamphetamine . . . commits the felony offense of trafficking in
methamphetamine[.]”); see Ashley v. State, 374 Ga. App. 153, 156 (1) (911 SE2d 701)
(2025). Possession may be actual or constructive and joint or exclusive, but “mere
spatial proximity to the contraband” is not sufficient to prove joint constructive
possession. Holland v. State, 334 Ga. App. 600, 602 (1) (780 SE2d 40) (2015). This
is particularly true when the contraband is not in plain view. See Mitchell v. State, 268
Ga. 592, 593 (492 SE2d 204) (1997). Instead, the State must demonstrate that
appellant had “the power and the intention at a given time to exercise dominion or
control over” the drugs. (Citations and punctuation omitted.) Lebis v. State, 302 Ga.
8 750, 753 (II) (808 SE2d 724) (2017). To do this, there must be evidence of a
connection linking the defendant to the contraband other than his mere spacial
proximity. See Holland, 334 Ga. App. at 602 (1). Significantly,
[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 may be 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.
(Citation and punctuation omitted.)Cobarrubias-Garcia v. State, 316 Ga. App. 787, 790
(730 SE2d 455) (2012) (physical precedent only). “Circumstances showing an intent
to exercise control over the drugs include a defendant’s attempts to flee or elude
police; inconsistent explanations by the defendant for [his] behavior; the presence of
significant amounts of contraband and drug paraphernalia in plain view; the
defendant’s possession of large amounts of cash, other indicia of the sale of drugs, or
drug-related paraphernalia; evidence that the defendant was under the influence of
9 drugs; or drug residue found on the defendant.” Kier v. State, 292 Ga. App. 208, 210
(1) (663 SE2d 832) (2008).
Here, it is undisputed that the home at issue belonged to the accomplice’s
girlfriend, and the drugs were found inside of a bag that was inside of a cubby in the
bedroom occupied by her and the accomplice. The evidence against Brown consisted
of evidence suggesting he stayed in “a makeshift living area” in the common area of
the house; he emerged from the bedroom in which the drugs were hidden along with
the two other occupants of the house upon the officers’ arrival; he kept his
identification card and $350 cash in a small safe in the common area of the house; and
his text messages contained a couple of cryptic references to “ice,” which an expert
witness testified was a commonly-used word for methamphetamine.
We cannot conclude that this evidence was legally sufficient to connect Brown
to the hidden contraband and to exclude the reasonable hypothesis that the drugs
belonged to one or both of the individuals who occupied the bedroom in which they
were found. “[W]hen the circumstantial evidence supports more than one theory, one
consistent with guilt and another with innocence, it does not exclude every other
reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt
10 beyond a reasonable doubt.” (Citation and punctuation omitted.) Hill v. State, 360 Ga.
App. 143, 148 (860 SE2d 893) (2021); see Brooks v. State, 206 Ga. App. 485, 486-487
(1) (425 SE2d 911) (1992) (“While the determination of whether the circumstances
are sufficient to exclude every reasonable hypothesis except that of defendant’s guilt
is usually made by the jury and while we must review the evidence in the light most
favorable to the jury verdict, we must not be blinded by that verdict when a reasonable
hypothesis of innocence appears from the evidence or lack thereof, and may declare
such as a matter of law.”) Accordingly, we reverse Brown’s conviction on trafficking
in methamphetamine. See Hill, 360 Ga. App. at 151 (reversing appellant’s trafficking
convictions because, in the absence of evidence that he owned or lived in the home in
which he was found, his failing to come to the door and hiding when police entered,
his driver’s license on the kitchen sink, the presence of digital scales in plain view, and
the high street value of the hidden drugs rendering it unlikely they would be left
unattended was insufficient to link him to the contraband found in the home);
Cobarrubias-Garcia, 316 Ga. App. at 791 (holding evidence was insufficient to support
trafficking and possession convictions because appellant was found inside a home that
he did not own or lease, no drugs were found on his person, and he was not seen in
11 proximity to the well-hidden drugs); see also O’Neill v. State, 285 Ga. 125, 128-129
(674 SE2d 302) (2009).
Because we are reversing Brown’s trafficking conviction, his convictions on
possession of methamphetamine with intent to distribute and possession of
methamphetamine are no longer merged. The evidence supporting those convictions
was legally insufficient also, however, and they too must be reversed.
Just as with the trafficking conviction, the State failed to establish that Brown
possessed the methamphetamine found hidden in the bedroom so as to support his
conviction on possession of methamphetamine with intent to distribute. See OCGA
§ 16-13-30 (b). Further, because the record contains no testimonial or other evidence
identifying the contents of what appeared to be a small amount of narcotics seen in
plain view by the officers upon their entry into the home, Brown’s conviction on
possession of methamphetamine also must be reversed. See generally DeLong v. State,
310 Ga. App. 518, 522 (2) (714 SE2d 98) (2011) (reversing appellant’s conviction
under the Georgia Controlled Substances Act because the State failed to carry its
burden of proving by competent evidence that the substance at issue was regulated by
law).
12 2. Brown argues that, although no objection was made by the defense, the trial
court committed plain error when it failed to exclude testimony about the K-9 tracking
dog without first requiring that the State lay a proper foundation as to the dog’s
training and experience in tracking.4
There is a four-factor test for plain error:
First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
(Citation and punctuation omitted.) Johnson v. State, 348 Ga. App. 831, 836 (3) (823
SE2d 351) (2019).
4 Brown also argues that the trial court committed plain error when it instructed the jury on the law of conspiracy without limiting that instruction to the charges related to the armed robbery and excluding its application to the drug charges. We need not consider this enumeration of error in light of our reversal of Brown’s drug convictions. 13 Under Georgia law, when testimony regarding a tracking dog’s behavior is used
as a evidence tending to prove a crime was committed and/or to connect an accused
to the crime with which he or she is charged, foundational evidence as to the training
and experience of the dog is a prerequisite to its admission:
[E]vidence as to the conduct of dogs in following tracks should not be admitted until after a preliminary investigation in which it is established that one or more of the dogs in question were of a stock characterized by acuteness of scent and power of discrimination, and had been trained or tested in the exercise of these qualities in the [use of] tracking . . ., and were in the charge of one accustomed to use them. It must also appear that the dogs so trained and tested were laid on a trail, whether visible or not, concerning which testimony has been admitted, and upon a track which the circumstances indicate to have been made by the accused. When these preliminary tests have been made, the fact of tracking by a bloodhound may be permitted to go to the jury as one of the circumstances which may tend to connect the defendant with the crime with which he is charged.
(Citation and punctuation omitted.) Johnson v. State, 293 Ga. App. 32, 36 (3) (666
SE2d 452) (2008). Nevertheless, such foundational evidence is not necessary if the
conduct of the tracking dog is not relevant to the question of whether the accused
committed the crimes charged. See Al-Amin v. State, 278 Ga. 74, 81 (10) (597 SE2d
14 332) (2004), overruled in part on other grounds, State v. Lane, 308 Ga. 10 (838 SE2d
808) (2020) (holding the trial court did not err by admitting evidence that a tracking
dog was used to “flush [appellant] out of a wooded area” without foundational
evidence because “it was not germane to the question of whether defendant
committed the crimes charged but was relevant only to prove the manner in which law
enforcement officers apprehended the suspect”) (citation and punctuation omitted);
see also Ingram v. State, 211 Ga. App. 821, 821 (1) (441 SE2d 74) (1994).
Here, evidence that the tracking dog located the ski mask in an area near the
location of the armed robbery was not used to prove that Brown committed the
crimes, but rather to explain the circumstances regarding law enforcement’s discovery
of that mask. Brown’s guilt was subsequently established, not only by his DNA that
was extracted from the mask, but also by the physical evidence discovered in the house
and the video evidence posted on a social media account. Under these circumstances,
the trial court did not err, much less commit plain error, by failing to exclude
testimony regarding the tracking dog due to the lack of foundational testimony. See
Smith v. State, 261 Ga. App. 871, 878 (5) (c) (583 SE2d 914) (2003) (holding that any
foundational objection to testimony regarding a tracking dog’s discovery of
15 appellant’s gun would have been futile because “the testimony was not being offered
as to the substance or identification of the gun and . . . the dog’s identification did not
associate the gun with [appellant]”) (punctuation omitted). Compare Carr v. State,
267 Ga. 701, 712 (1) (482 SE2d 314) (1997), overruled on other grounds, Clark v.
State, 271 Ga. 6, 10 (5) (515 SE2d 155) (1999) (requiring foundational evidence when
the testimony concerning the dog alert was offered as substantive evidence of the
presence of accelerants, and thus bore directly on the guilt of the accused on arson and
murder charges).
3. Brown contends that the trial court abused its discretion by excusing a juror
over his objection. He argues specifically that the trial court should have first
admonished the juror before her dismissal.
On the second day of trial testimony, an alarm sounded from one of the juror’s
watches. The juror apologized and turned off the alarm, and the trial resumed. Shortly
thereafter, the judge sua sponte interrupted the witness’s testimony and requested
that counsel for both parties approach the bench. The trial court informed counsel
that the juror in question had not been paying attention and had been communicating
16 on her watch, and asked if there was any objection to her being dismissed. Brown’s
counsel requested that he be allowed to question the juror.
Upon counsel’s questioning of the juror outside the presence of the remaining
jurors, she denied having been communicating on her watch, but both the judge and
the bailiff stated that they had seen her throughout the two days of testimony reading
or communicating on her watch. The trial court excused the juror over Brown’s
objection.
The decision of whether to remove a juror is within the trial court’s discretion,
although there must be “some sound basis” upon which the trial court exercises that
discretion. See Jones v. State, 314 Ga. 214, 222 (2) (b) (875 SE2d 737) (2022); see
OCGA § 15-12-172. “A sound basis may be one which serves the legally relevant
purpose of preserving public respect for the integrity of the judicial process.”
(Citation and punctuation omitted.) Jones, 314 Ga. at 222-223 (2) (b).
Here, the trial judge personally observed what the court determined to be a
concerning amount of inattentiveness by the juror. In so doing, the judge explained:
[S]he was about 15 or 20 minutes late on [the first day of trial]. Technically, she was late today. And I have been concerned. I’ve been watching her. And at first, I thought she was taking notes. I -- I’ve seen
17 her head down, not looking at the witness, for minutes and minutes on end, thinking that, well, she’s taking notes. But after what I saw today, I’m convinced that it -- both yesterday and today, she has spent minutes on top of minutes scrolling and tapping on her smartwatch, which is key to her cell phone. I have no idea how much testimony she’s missed in this case, and I think it would be unfair to both sides. . . . I don’t think she’s heard all the evidence and I think it would be a travesty of justice to leave her on there[.]
After the jurors were excused for the day, the judge confirmed with the bailiff that the
juror had not taken any notes on the notepad provided.
Brown has failed to show the trial court abused its discretion by dismissing the
juror in question. See generally Rivera v. State, 282 Ga. 355, 361-362 (7) (647 SE2d 70)
(2007) (holding trial court did not abuse its discretion by dismissing a juror who
returned half hour late from lunch and had ongoing childcare issues); Freeman v. State,
291 Ga. App. 651, 654 (3) (662 SE2d 750) (2008) (affirming trial court’s removal of
juror amid concern about the juror’s inability to stay awake and fear the juror would
conduct independent research into the case). Cf. Buwee v. State, 359 Ga. App. 321, 326
(2) (857 SE2d 498) (2021) (affirming trial court’s striking of juror for cause fearing the
juror would ignore evidence in an effort to avoid feeling stressed so as to protect his
18 own health). Although the juror at issue denied having been communicating on her
watch, “[w]e defer to the trial court’s ability . . . to observe [the juror] in person and
take account of [her] demeanor and countenance, not just the words that [she]
spoke.” Buwee, 359 Ga. App. at 326 (2). To the extent Brown argues that he should
have been permitted to question the bailiff under oath about the bailiff’s own
observations, he failed to make any such request to the trial court and has thus waived
that argument on appeal. See Keaton v. State, 311 Ga. App. 14, 20 (4) (714 SE2d 693)
(2011) (“A party may not complain on appeal of a ruling that he contributed to or
acquiesced in by his own action, trial strategy, or conduct.”) (citation and punctuation
omitted).
Judgment affirmed in part; reversed in part and case remanded. Mercier, C. J. and
McFadden, P. J., concur.