James v. State

449 S.E.2d 126, 214 Ga. App. 763

• Court: Court of Appeals of Georgia
• Decided: October 5, 1994
• Docket: A94A1687
• Status: Published

Opinions

Johnson, Judge.

Ronald James appeals his conviction of possession with intent to distribute cocaine for which he was sentenced to life in prison. In response to a telephone tip from an undisclosed source, four police officers traveled to a rural area and found James standing in front of a :ar which matched the description given by the informant. When po-ice drove up and asked James to come over and talk to them, he fled, flopping a clear plastic bag containing 1.2 grams of cocaine. A subsequent search of the car revealed an amber pill bottle containing resi-lue identified as cocaine.

1. Giving deference to James’ status as a pro se appellant, we lonstrue his first enumeration of error as an assertion that there was nsufficient evidence of his intent to distribute the cocaine to support he conviction. A review of the transcript reveals only two references vhich suggest distribution. The state, in its brief, asserts that the dis-jatcher received a telephone call informing him that James was in the vlcCrayville area selling drugs. In fact, the dispatcher’s testimony reading the telephone call does not mention any sale of drugs. A sub-equent witness, the arresting officer, testified that the dispatcher had old a third police officer “about somebody selling drugs in the Mc-flayville area.” Even if this comment is construed as admissible iouble hearsay, in that it explained the conduct of the police in going o McCrayville, it is not probative and cannot be considered for the ruth of the statement. The jury was so instructed by the trial court. See State v. Speir, 189 Ga. App. 254, 255 (2) (375 SE2d 298) (1988). The second reference to distribution is found in the testimony of the arresting officer who was asked whether, in his opinion, the 1.2 grams of cocaine found in a bag dropped by James would be an amount normally held by a user. He responded that it would not, raising an inference that it would be an amount held by someone engaged in selling drugs.

“[M]ere possession of contraband without more will not serve as the basis for a conviction for possessing contraband for purposes of sale. [Cit.]” Wright v. State, 154 Ga. App. 400, 401-402 (1) (268 SE2d 378) (1980). OCGA § 16-13-31 sets forth specific quantity and purity requirements of cocaine necessary to authorize a conviction of trafficking in cocaine. OCGA § 16-13-30, however, has no such quantitative or qualitative guidelines for differentiating between mere possession and possession with intent to distribute cocaine. We have reviewed several previous decisions of this court which have addressed the issue of the sufficiency of the evidence of the intent to distribute element of the offense, in an effort to ascertain what has been deemed to be sufficient evidence to support a conviction of possession with intent to distribute cocaine. In Wright, supra, a scale, plastic bags, coin envelopes and cash found on the appellant’s dresser were held to be sufficient indicia of intent to sell marijuana. In Williams v. State, 199 Ga. App. 544 (405 SE2d 539) (1991), cocaine was divided between more than 30 small glassine or clear plastic packages, this court held that the manner of packaging authorized an inference that appellant intended to distribute the contraband. In Sams v. State, 197 Ga. App. 201 (397 SE2d 751) (1990), evidence was presented regarding previous sales of cocaine made by appellant on the day of his arrest. Scales, drug paraphernalia, baking soda for cutting the cocaine, and a large amount of cash primarily in $20 bills were also found in appellant’s possession. Finally, in Davis v. State, 200 Ga. App. 44, 45 (2) (406 SE2d 555) (1991), evidence of a prior conviction of possession of cocaine with intent to distribute was introducec as a similar transaction. Additionally, the arresting officer in Davis was qualified as an expert witness on the “uses and activities of drugs on the street and how they are dealt.” As an expert he was allowed t( give his opinion that possession of six pieces of crack cocaine woulc generally be for distribution, as opposed to personal use. In all o: these cases, competent evidence was offered which linked the posses sion of the cocaine to the enterprise of sale.

“On appeal the evidence must be viewed in the light mos favorable to support the verdict, and appellant no longer enjoys a pre sumption of innocence.” (Punctuation omitted.) Curtis v. State, 208 Ga. App. 720, 721 (431 SE2d 719) (1993). Even viewing the evidence in this light, here the only evidence presented purporting to establisl that James intended to distribute cocaine was the reference to a hearsay tip from an unidentified source that James was selling drugs and the opinion testimony of the arresting police officer, not qualified as an expert, that 1.2 grams of cocaine would not normally be an amount held by a user. This comment was not linked to James or to the events leading to James’ arrest. While the evidence would clearly support a conviction on a charge of possession of cocaine, it is not sufficient to support the conviction of possession with intent to distribute. There being no other evidence in this record which would support a conviction of possession of cocaine with intent to distribute, James’ conviction must be reversed.

2. In light of our holding in Division 1, we need not reach James’ other asserted errors.

Judgment reversed.

Pope, C. J., Birdsong, P. J., Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., Beasley, P. J., and Andrews, J., dissent.