Horne v. State

733 S.E.2d 487, 318 Ga. App. 484, 2012 Fulton County D. Rep. 3396, 2012 Ga. App. LEXIS 881
CourtCourt of Appeals of Georgia
DecidedOctober 25, 2012
DocketA12A1124
StatusPublished
Cited by20 cases

This text of 733 S.E.2d 487 (Horne 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
Horne v. State, 733 S.E.2d 487, 318 Ga. App. 484, 2012 Fulton County D. Rep. 3396, 2012 Ga. App. LEXIS 881 (Ga. Ct. App. 2012).

Opinion

MILLER, Presiding Judge.

Following a jury trial, Curtis Horne1 was convicted of possession of cocaine with intent to distribute (OCGA § 16-13-30 (b)), violation of the Georgia Safety Belt law (OCGA § 40-8-76.1 (b)), and driving without a license (OCGA § 40-5-20 (a)). Horne filed a motion for new trial, which the trial court denied. On appeal, Horne contends that (i) the evidence was insufficient to sustain his drug conviction; (ii) the evidence failed to establish a proper chain of custody; (iii) the trial court erred in denying his motion to suppress since his arrest and the warrantless search of his car were illegal; (iv) the trial court erred in allowing him to represent himself at trial; (v) the trial court failed to properly respond to a jury question; (vi) the trial court erred in imposing recidivist sentencing; (vii) the trial judge erred in failing to recuse himself; and (viii) his appellate counsel provided ineffective assistance. Discerning no error, we affirm.

On appeal, this Court must view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence; we determine the sufficiency of the evidence in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). “Conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict willbe upheld.” (Citation and punctuation omitted.) McCombs v. State, 306 Ga. App. 64, 65 (2) (701 SE2d 496) (2010).

So viewed, the trial evidence shows that on the evening of July 24, 2008, an officer with the Richmond County Sheriff’s Office was conducting routine patrol when he observed Horne driving his vehicle on the roadway. The officer testified that when Horne passed by, he could see that Horne was not wearing a seat belt, and that the seat belt was hanging in the driver’s side door. The officer initiated a traffic stop of Horne’s vehicle due to the seat belt violation.

[485]*485During the traffic stop, the officer requested Horne’s driver’s license. Horne informed the officer that he did not have a driver’s license with him, but provided the officer with his name and date of birth. The officer ran a computer check using Horne’s information, which revealed that Horne did not have a valid driver’s license, and that his license had been suspended since 1997. As a result of the violation, the officer placed Horne under arrest. The officer directed Horne to step out of his vehicle and to place his hands on the roof of the vehicle. As Horne exited the vehicle, the officer observed Horne reach his hand into his pants pocket, pull out a clear bag, and place the bag in the doorjamb of the vehicle. After the officer handcuffed Horne and secured him in the back of the patrol car, the officer returned to Horne’s vehicle and retrieved the bag from the doorjamb.

The officer observed that the bag contained substances that were divided into two separate individual baggies. The officer performed field tests and weighed the substances, which confirmed that the substance in one baggie was 13.1 grams of crack cocaine and the substance in the other baggie was 7.5 grams of powder cocaine. The officer testified that based upon his experience and training, the quantity and separate packaging of the cocaine indicated that it was not for personal use, but rather, was intended for distribution.

The officer sealed the baggies of cocaine in an evidence bag and deposited the evidence bag into a secured evidence safe for transport to the Georgia Bureau of Investigation (“GBI”) Crime Lab. The GBI Crime Lab testing revealed that the drug substances were positive for cocaine.

Horne was subsequently indicted, tried, and convicted of the drug and traffic offenses.

1. Horne contends that the evidence was insufficient to sustain his conviction for possession of cocaine with intent to distribute. He argues that others had equal access to the vehicle where the drugs were found, and that the evidence was insufficient to prove an intent to distribute the drugs. His arguments are without merit.

“Possession of cocaine may be joint or exclusive, actual or constructive. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” (Punctuation and footnotes omitted.) Thomas v. State, 291 Ga. App. 795, 797 (1) (662 SE2d 849) (2008). Here, the evidence was sufficient to show that Horne had actual possession of the cocaine. In this regard, the officer testified that he observed Horne handling the bag of cocaine as he removed it from his pants pocket and attempted to hide it in the vehicle’s doorjamb. Horne’s arguments challenging the officer’s credibility are unavailing. Determinations regarding the credibility of witnesses and the resolution of conflicts in the evidence are within [486]*486the sole province of the jury and afford no basis for reversal on appeal. See id. at 797-798 (1); Gaston v. State, 257 Ga.App. 480, 482 (1) (571 SE2d 477) (2002).

Moreover, Horne’s reliance upon the equal access rule is misplaced.

The equal access rule, as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. However, equal access is merely a defense available to the accused to whom a presumption of possession flows. Where the State did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense. ... Moreover, the equal access rule applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle.

(Citations and punctuation omitted.) Hight v. State, 293 Ga. App. 254, 258 (5) (666 SE2d 678) (2008). Here, the State did not rely upon a presumption that the cocaine was in Horne’s possession based upon his status as the driver of the vehicle. Rather, the State relied upon direct evidence that Horne had actual possession of the cocaine by handling and attempting to hide it. Under these circumstances, the equal access rule was inapplicable. See, e.g., Thomas, supra, 291 Ga. App. at 798 (2).

The evidence also was sufficient to support a finding that the cocaine was intended for distribution.

It is true that mere possession of cocaine, without more, will not support a conviction for possession with intent to distribute. But additional evidence may support proof of intent to distribute, including the packaging of the contraband ...

Free access — add to your briefcase to read the full text and ask questions with AI

Related

James Shockley v. State
Court of Appeals of Georgia, 2023
Martel Dejuandre Manor v. State
Court of Appeals of Georgia, 2022
The State v. Preston.
824 S.E.2d 582 (Court of Appeals of Georgia, 2019)
Tommy Barge v. State
824 S.E.2d 79 (Court of Appeals of Georgia, 2019)
The State v. Robusto.
824 S.E.2d 37 (Court of Appeals of Georgia, 2019)
Bailey v. the State
790 S.E.2d 98 (Court of Appeals of Georgia, 2016)
Smith v. the State
782 S.E.2d 824 (Court of Appeals of Georgia, 2016)
Tyner v. the State
780 S.E.2d 494 (Court of Appeals of Georgia, 2015)
Omega Henry Murray v. State
Court of Appeals of Georgia, 2014
Murray v. State
761 S.E.2d 590 (Court of Appeals of Georgia, 2014)
State of Iowa v. Jackie Dean Knight
853 N.W.2d 273 (Court of Appeals of Iowa, 2014)
Anthony James Pardon v. State
Court of Appeals of Georgia, 2013
Pardon v. State
745 S.E.2d 658 (Court of Appeals of Georgia, 2013)
Milton Myers v. State
Court of Appeals of Georgia, 2013
Myers v. State
742 S.E.2d 494 (Court of Appeals of Georgia, 2013)
Joe Thomas v. State
Court of Appeals of Georgia, 2013
Thomas v. State
741 S.E.2d 298 (Court of Appeals of Georgia, 2013)
Salomon Hernandez-Lopez v. State
Court of Appeals of Georgia, 2013
Hernandez-Lopez v. State
738 S.E.2d 116 (Court of Appeals of Georgia, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
733 S.E.2d 487, 318 Ga. App. 484, 2012 Fulton County D. Rep. 3396, 2012 Ga. App. LEXIS 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horne-v-state-gactapp-2012.