Kirchner v. State

744 S.E.2d 802, 322 Ga. App. 275, 2013 Fulton County D. Rep. 2006, 2013 WL 2935195, 2013 Ga. App. LEXIS 495
CourtCourt of Appeals of Georgia
DecidedJune 17, 2013
DocketA13A0103
StatusPublished
Cited by8 cases

This text of 744 S.E.2d 802 (Kirchner 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
Kirchner v. State, 744 S.E.2d 802, 322 Ga. App. 275, 2013 Fulton County D. Rep. 2006, 2013 WL 2935195, 2013 Ga. App. LEXIS 495 (Ga. Ct. App. 2013).

Opinion

Ellington, Chief Judge.

A Cherokee County jury convicted Debbie Kirchner of possession of more than one ounce of marijuana, OCGA § 16-13-30 (j) (1), (2) (a felony); possession of less than one ounce of marijuana, OCGA §§ 16-13-30 (j); 16-13-2 (b) (a misdemeanor); tampering with evidence, OCGA § 16-10-94 (a); and contributing to the delinquency of a minor, OCGA § 16-12-1 (b) (1). She appeals from the denial of her motion for new trial, contending that the evidence was insufficient to support her convictions. Because we find this contention to be without merit, we affirm.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). It is the function of the jury, not this Court, to determine the credibility of the witnesses, resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. “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 will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001). Viewed in this light, the record reveals the following facts.

On the evening of August 4, 2007, a Cherokee County sheriff’s deputy responded to a 911 call from Debbie Kirchner’s next door neighbor, who had complained that some of Kirchner’s visitors had illegally parked their cars in the cul-de-sac she and Kirchner lived on and that the cars were blocking her driveway. Upon arriving at the scene, the officer observed a Chevrolet Camaro parked in the middle of the cul-de-sac with its motor running and a passenger inside, as well as at least four other parked cars. Shortly thereafter, the officer saw two men walk out of Kirchner’s home. One of the men immediately turned around and re-entered Kirchner’s house after seeing the officer, but the other, 20-year-old Kevin Robins, walked toward the idling Camaro. The officer saw that Robins was holding a paper bag tightly in front of him, and, while talking briefly with him, the officer smelled an odor of “real strong marijuana” coming from Robins and convinced him to open the bag and show what was inside. The bag contained a plastic baggie holding about eight ounces of marijuana. The officer placed Robins under arrest and called for backup assistance.

[276]*276While the officer was waiting for assistance to arrive, Kirchner came outside and asked him what was going on. The officer told her that he was conducting an investigation about the drugs that he had discovered, and Kirchner said that Robins was her son’s friend. Several minutes later, an agent with the Cherokee County MultiAgency Narcotics Squad and another police officer arrived, and the agent interviewed Robins, who said that he had bought the marijuana from Kirchner’s 15-year-old son, D. K., who was still inside the house. The agent then asked Kirchner for her consent to search her house, but Kirchner refused, so the agent told the officers to get everyone out of the house while he obtained a search warrant.1 The officers called into the house and told everyone to come outside. Ultimately, the two officers detained nine individuals (including Kirchner, D. K., Robins, and Robins’ passenger) in the cul-de-sac to await the return of the agent and the execution of the search warrant.

While waiting, Kirchner repeatedly insisted that she needed to use the bathroom “real bad,” but the officers did not allow her to go back into the house initially because one of them would have to accompany her inside and there were only two officers on site with eight other people to watch. The officers explained that, out of concern for their safety, one of them could not be left alone to watch over that many detainees while the other accompanied Kirchner into the house. Kirchner persisted with her complaint, however, so the officers eventually relented and allowed her to go alone into the house solely to use the bathroom, telling her to come back outside as soon as she was finished. After Kirchner was alone in the house for ten to fifteen minutes, one of the officers went to the door and ordered her to come outside, at which time he saw Kirchner running from one side of the house to the other, toward the kitchen. He heard the sound of dishes being moved around, and then Kirchner came outside. She was panting and out of breath, and she asked the officer if she could sit down to rest.

About an hour after leaving, the agent returned with a search warrant, and he and the officers went inside to execute the warrant; they had the nine detained individuals wait in the living room in the upper portion of the split level house. Both the agent and one of the officers testified that, as soon as they entered the house, they smelled a strong odor that they immediately recognized as marijuana. While searching the upper level of the house, they discovered a plastic baggie containing less than an ounce of marijuana and a pipe containing marijuana residue in a drawer in Kirchner’s bedroom. In [277]*277the kitchen, the officers observed that the dishwasher had just stopped running and was still steaming. Inside the dishwasher, the officers discovered several baggies that had been washed. The agent testified that some of the baggies contained a substance that, based upon his extensive training and experience in narcotics law enforcement, appeared to be marijuana residue. According to the agent, he did not collect the baggies as evidence to be tested by the crime lab because he knew that, when marijuana gets wet, it develops a toxic mold that is very harmful to humans if inhaled.

In the lower level of the home, the officers found a family room area with an attached bedroom belonging to D. K. The bedroom door was locked, but the officers obtained the key from D. K. Inside the bedroom was a large, locked gun safe that was approximately five feet tall and two to three feet wide and that, according to the agent’s estimation, would have cost between $2,000 and $3,000. The officers brought Kirchner and her son downstairs and asked them for the combination to the lock. After D. K. hesitated, Kirchner told him to unlock the safe, and he complied. Inside the safe, the officers found a 12-gauge shotgun, several plastic baggies containing a total of about 13 ounces of marijuana, bongs and pipes typically used to smoke marijuana, several empty plastic baggies, two scales, two marijuana grinders that are used to remove seeds and stems, and a jar of marijuana seeds from which to grow marijuana plants. According to the agent, Kirchner had no visible reaction or change in her demeanor when she saw what was inside the safe. In addition to the evidence found in the safe, the officers found an issue of High Times

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Cite This Page — Counsel Stack

Bluebook (online)
744 S.E.2d 802, 322 Ga. App. 275, 2013 Fulton County D. Rep. 2006, 2013 WL 2935195, 2013 Ga. App. LEXIS 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirchner-v-state-gactapp-2013.