Fain v. State

439 S.E.2d 64, 211 Ga. App. 399, 93 Fulton County D. Rep. 4407, 1993 Ga. App. LEXIS 1527
CourtCourt of Appeals of Georgia
DecidedNovember 29, 1993
DocketA93A1372
StatusPublished
Cited by13 cases

This text of 439 S.E.2d 64 (Fain 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
Fain v. State, 439 S.E.2d 64, 211 Ga. App. 399, 93 Fulton County D. Rep. 4407, 1993 Ga. App. LEXIS 1527 (Ga. Ct. App. 1993).

Opinion

Smith, Judge.

Larry Fain was indicted with Michelle Hamilton for the offenses of possession of methamphetamine with intent to distribute, OCGA § 16-13-30 (b), and possession of marijuana, OCGA § 16-13-30 (j) (1)-Immediately prior to trial, Hamilton pled guilty to possession of methamphetamine with intent to distribute. The jury found Fain guilty of both charges.

In the course of investigating information they received regarding drugs at Fain’s home, Snellville police officers verified that Fain was the owner or lessor of the premises; they then posed as trash collectors, riding a garbage truck in order to pick up Fain’s trash on four different occasions. After the trash was collected from Fain’s house it was kept separate from other trash. At the end of Fain’s street, it was transferred to another vehicle and transported to another location for examination. Several suspicious items found in Fain’s trash led the officers to obtain a search warrant for his home. See California v. Greenwood, 486 U. S. 35 (108 SC 1625, 100 LE2d 30) (1988).

Fain and Hamilton were in the house on the morning the warrant was executed. The officers found three plastic baggies containing white powder in Hamilton’s purse, which was on the coffee table in the den. A forensic chemist from the state crime laboratory testified at trial that these baggies contained 5.5 grams of methamphetamine. The officers also found a .357 revolver, a beeper, hypodermic needles, and a mirror on which there was white powder residue, a razor blade, and a straw in the master bedroom; triple beam scales and a white crystal powder commonly used as a cutting agent on a shelf in the master bedroom closet; a fast food tray with a green leafy substance, a spoon containing balls of cotton, a white powdery residue, and a hypodermic needle cap in the master bathroom; numerous baggies with cut-out corners and corners cut from plastic baggies in an unused shower in the master bath; and a plastic baggie containing seeds, *400 identified at trial as marijuana, in the kitchen.

At trial, Hamilton testified that although she previously had used it, Fain “turned her on” to methamphetamine, supplying her with the drug basically in return for her “companionship.” She began spending more and more time at his home and had her own room there. She denied ever actually witnessing Fain selling methamphetamine, but she related conversations she had with Fain regarding his distribution of the drug to others. She testified that the two baggies of methamphetamine found in her purse had been given to her by Fain; she found the third in the laundry room and took it.

Detective Harold Thomas testified that after arresting Fain, he had advised him of his rights, told him traces of drugs had been found in the bedroom, and asked him where the rest of the drugs were. Fain at first denied there were more drugs in the house but then stated “[t]here’s a gram back there,” directing attention to the bathroom. However, no more drugs were found in the bathroom. Notes extracted from Fain’s garbage, as well as notes found in the living room, were introduced into evidence. Among other things, the notes contained lists of names followed by monetary amounts. Testimony of police officers established that such notes were commonly used as normal bookkeeping practices in the drug trade.

1. In three enumerations of error, Fain raises the general grounds. He makes several arguments in support of his contention that the evidence was insufficient to authorize the jury to convict him, first arguing that no evidence existed that the white powdery substance found on various items in his bedroom was methamphetamine. However, the methamphetamine charge against Fain was based on his constructive possession of the drugs found in Hamilton’s purse and not on the white powder on the items found in his bedroom. The items found in his bedroom, commonly used drug paraphernalia, were relevant to show Fain’s involvement with drugs.

Fain also maintains that only Hamilton’s testimony connected him with the drugs found in her purse and, since she was an accomplice, it was necessary for her testimony to be corroborated in order to support his conviction. OCGA § 24-4-8; see Claybrooks v. State, 189 Ga. App. 431, 432 (375 SE2d 880) (1988). The principle Fain cites is correct. In Georgia, a defendant may not be convicted on an accomplice’s uncorroborated testimony. The required corroboration must be “independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty.” (Citations and punctuation omitted.) Id. However, OCGA § 24-4-8 provides that “corroborating circumstances may dispense with the necessity for the testimony of a second witness.” Slight corroborative evidence from an extraneous source is all that is required to support the verdict, and it may be by circumstantial evidence. Bennett v. *401 State, 202 Ga. App. 699 (415 SE2d 310) (1992). It is for the jury to decide whether the evidence offered as corroboration is sufficient to support a conviction, and “[i]f the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said as a matter of law, that the verdict is contrary to the evidence.” (Citations and punctuation omitted.) Cody v. State, 195 Ga. App. 318 (1) (393 SE2d 692) (1990).

In this case, there was no corroborating testimony. Unlike Claybrooks, though, the physical evidence found in Fain’s home, particularly that found in the bedroom occupied by him and the bath used by him, was circumstantial evidence corroborating Hamilton’s testimony that connected Fain with the drugs.

Fain argues as well that four people were living at the house, including his brother and his daughter, all of whom had equal access to the places where drugs were found. However, it was undisputed that Fain was the owner or lessor of the premises, raising a rebuttable presumption that the drugs were his. Mobley v. State, 190 Ga. App. 771, 773 (1) (380 SE2d 290) (1989). No evidence was introduced to show that any of the other occupants of the house had access to Fain’s bedroom or bathroom, where numerous items of drug paraphernalia were found. “The equal access rule which appellant invokes [cits.] applies for the most part to areas which are open, notorious and easily accessible to other persons. The [items of drug paraphernalia were] found in a bedroom in areas where accessibility was that of the occupants of the bedroom and not others. [Cits.]” Cantrell v. State, 204 Ga. App. 330, 331 (419 SE2d 141) (1992). Although it is arguable that Hamilton, who spent some time in Fain’s bedroom with him, had equal access to the items, the equal access doctrine does not apply to those charged with being in joint constructive possession of contraband. Jackson v. State, 188 Ga. App.

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Cite This Page — Counsel Stack

Bluebook (online)
439 S.E.2d 64, 211 Ga. App. 399, 93 Fulton County D. Rep. 4407, 1993 Ga. App. LEXIS 1527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fain-v-state-gactapp-1993.