Heath v. State

368 S.E.2d 346, 186 Ga. App. 655, 1988 Ga. App. LEXIS 426
CourtCourt of Appeals of Georgia
DecidedMarch 18, 1988
Docket75688, 75689
StatusPublished
Cited by13 cases

This text of 368 S.E.2d 346 (Heath 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
Heath v. State, 368 S.E.2d 346, 186 Ga. App. 655, 1988 Ga. App. LEXIS 426 (Ga. Ct. App. 1988).

Opinions

Beasley, Judge.

Appellants Martha Heath and her son Tommy Heath were tried jointly with Joel Rolle and David Louissaint for the offense of trafficking in cocaine, OCGA § 16-13-31 (a) (1). Rolle and Louissaint were acquitted.

1. Both appellants contend the trial court erred by denying their motions for directed verdict of acquittal, based on want of evidence. However, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that they were joint parties to the crime, and so we must uphold the jury verdict in favor of which the evidence must be viewed. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Harris v. State, 166 Ga. App. 689 (1) (305 SE2d 428) (1983).

The evidence disclosed that based on information from four different informants in a space of seven days, regarding drug trafficking at the premises of Martha Heath, a sheriff’s department lieutenant obtained a search warrant for those premises. When the warrant was executed the lieutenant and an investigator approached the duplex from the rear, while five other law enforcement officers approached from the front.

This was a three-bedroom apartment in a housing project. When the police arrived after 12:30 a.m., people who were standing around outside scattered. Co-defendant Rolle tried to escape the police by [656]*656running from the front to the backyard, but he fell while shaking out his pockets at the same time, exclaiming to police when caught that he was trying to rid himself of any cocaine residue which might be left from the night before.

Everyone in the apartment was brought into the living room. Martha Heath was brought from the bedroom area. Tommy was in the kitchen with his head on the table and his eyes closed and appeared intoxicated by something. A daughter who sometimes stayed in one of the bedrooms was also present. Rolle, the fellow who was caught outside, had come the day before from Florida with co-defendant Louissaint, who was in one of the bedrooms and displayed a knife when the deputy sheriff announced himself at the bedroom door. Moore was asleep in Martha Heath’s bedroom, and another of Martha Heath’s daughters may have been present in the apartment.

There was a single bed and a double bed in Martha Heath’s bedroom. Under a blanket in a corner of the single bed was a paper sack containing a quantity of rock cocaine, $970 in small bills, and government checks. Another bedroom contained just several boxes of curtains, in one of which there was a can with holes punched in a manner commonly used for smoking crack; it contained cocaine residue. Two more such cans, and a razor, were found in another bedroom. A marijuana plant was on a window sill. A copper tube commonly used to smoke cocaine was found behind the living room door; it contained residue of the same substance found elsewhere. Someone had tried to cram a medicine bottle containing four cocaine rocks in it between the armrest and the cushion on the living room sofa but partially failed.

What was particularly notable about all of the cocaine seized, including that from the envelope in Tommy’s front pocket when he was searched the next morning at the jail, was that it was all the same mixture, texture, shade of brown, and form. The laboratory chemist who tested it said it was “rare” to find cocaine cut with benzocaine, and she had seen only one other such case.

OCGA § 16-13-31 (a) (1) provides: “Any person . . . who is knowingly in actual possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine . . . commits the felony offense of trafficking in cocaine . . .” As stated, actual possession is required. Ramsay v. State, 175 Ga. App. 97, 100 (7) (332 SE2d 390) (1985).

The question is whether there was evidence of actual possession, which is the only type warranting a conviction. Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574) (1988). As repeated in Lockwood, actual possession consists in this: “ ‘A person who knowingly has direct physical control over a thing at a given time is in actual possession of it ... .’ [Cits.]” The difference between actual and construe[657]*657tive possession “is most assuredly one of degree.” Dalton v. State, 249 Ga. 720, 721 (2) (292 SE2d 834) (1982). In that opinion, the Supreme Court adopted this court’s statement from CJS that the words actual and constructive possession “ ‘often so shade into one another that it is difficult to say where one ends and the other begins.’ ” Neal v. State, 130 Ga. App. 708, 711 (2) (204 SE2d 451) (1974).

There is no requirement that the proof of actual possession be by direct and not circumstantial evidence. It is the latter which authorized the convictions here. Secondly, to be convicted, neither had to “directly commit the crime.” OCGA § 16-2-20 (b) (1). Each is a party to the crime not only if he directly commits it but also if he “(3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.” See Raines v. State, 186 Ga. App. 239 (366 SE2d 841) (1988).

There is no doubt whatsoever that the crime was committed by some one or more persons. A total of 40.6 grams of cocaine cut by benzocaine, or 29.07 grams of pure cocaine, was collected from Martha Heath’s apartment that night. Somebody had actual possession of it, in the legal sense. It would defy logic to say that it was lost or abandoned, or that at all times while it was in Martha Heath’s apartment it was only in constructive possession. Of the people present in the apartment when the police entered, four were indicted and the jury found that only two had actual possession themselves or were culpable parties. Appellants admit in this court that: “There is no doubt that State’s evidence established that someone was involved in Trafficking in cocaine in violation of O.C.G.A. § 16-3-31.”

Physical presence was not the only fact connecting appellants to actual possession. As in O’Neal v. State, 239 Ga. 532, 533 (238 SE2d 73) (1977), “there was evidence [in addition] here to support the jury’s finding of participation.” Also to be considered were what was found, where it was found, appellants’ reaction to the discovery, when it was found, and all other circumstances surrounding the event.

Insofar as “equal opportunity” or “equal access” is concerned, which the judge charged the jury on, that is a question of fact and therefore a jury question. Ramsay v. State, 175 Ga. App. 97, 99, supra. Just because several people were in Martha’s apartment when the various amounts of cocaine and connected paraphernalia were found in different locations does not conclusively establish that one or more of these people other than defendants had “equal access” to the contraband so as to block a finding of appellants’ possession. The circumstances here do not compel such a finding as a matter of law.

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Heath v. State
368 S.E.2d 346 (Court of Appeals of Georgia, 1988)

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Bluebook (online)
368 S.E.2d 346, 186 Ga. App. 655, 1988 Ga. App. LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heath-v-state-gactapp-1988.