Lopez-Jimenez v. State

733 S.E.2d 42, 317 Ga. App. 868, 2012 Fulton County D. Rep. 3238, 2012 WL 4785410, 2012 Ga. App. LEXIS 829
CourtCourt of Appeals of Georgia
DecidedOctober 9, 2012
DocketA12A1473
StatusPublished
Cited by7 cases

This text of 733 S.E.2d 42 (Lopez-Jimenez 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
Lopez-Jimenez v. State, 733 S.E.2d 42, 317 Ga. App. 868, 2012 Fulton County D. Rep. 3238, 2012 WL 4785410, 2012 Ga. App. LEXIS 829 (Ga. Ct. App. 2012).

Opinion

Boggs, Judge.

After a jury trial, Jose Rafael Lopez-Jimenez (“Lopez”) was convicted of the offense of trafficking in methamphetamine. His amended motion for new trial was denied, and he appeals, asserting the general grounds and ineffective assistance of counsel. Finding no error, we affirm.

1. Construed to support the jury’s verdict, the evidence shows that a police officer with the Atlanta DEA task force had a house in Duluth, Georgia under surveillance after receiving reports that it was an “active stash house[ ].” While he was observing and photographing the house, Lopez “came out the front door and approached” him, and wanted to know what he was doing. There was a “for sale” sign in the yard,1 and the officer asked Lopez “if the home was in fact for sale.” Lopez responded that it was, but when the officer asked to see the inside Lopez refused, saying that he needed to contact the real estate agent or the homeowner.

Three days later, the officer obtained a “knock and announce” search warrant on the house, and a drug task force team executed the warrant. After knocking at the front door and announcing in both English and Spanish that they were police and had a search warrant, the team received no response and forced open the front door. Lopez and another individual, Urena,2 were sitting on a sofa in the living [869]*869room immediately inside the front door. Several officers testified that they noticed a strong smell of methamphetamine in the room.

A large plastic tub was on the coffee table in front of the sofa, along with several large plastic trash bags containing what the officer testified were wrapping or outer packaging for narcotics. An officer testified that methamphetamine is generally repackaged once it arrives at its destination, in this case into gallon-sized plastic bags. Field testing of the packaging materials was positive for methamphetamine. Two pairs of latex gloves were lying on the coffee table. An officer testified that handling methamphetamine without gloves produces a characteristic peeling of the skin and calluses, and that he observed such skin damage on Lopez’s hands.

The police recovered approximately 62 kilograms (136 pounds) of methamphetamine from the house. In the closet of the master bedroom, which was occupied by Urena, officers found a laundry basket and two cardboard boxes containing a digital scale and numerous gallon-sized plastic bags of methamphetamine. In a closet in one of the two other bedrooms, officers found a shoe box containing one-gallon plastic bags, each containing about a pound of methamphetamine. Clothing was also found in the second bedroom, which Urena testified was occupied by Lopez. The third bedroom was completely empty, without any clothing or items.

Officers found two wire transfer receipts on the kitchen counter, showing that money was wired from Mexico to Lopez at a nonexistent address in Lawrenceville. An officer testified that Lopez stated he was visiting from California and had arrived in Georgia about five days earlier.

Urena testified on behalf of the defense that Lopez moved into the house three to five days before the arrest, and that only the two of them were in the house. He testified that Lopez did not deliver the drugs, did not buy or sell them, and did not touch them while they were at the house. But on cross-examination, Urena acknowledged that Lopez was present when the drugs were brought to the house, that Urena told Lopez to help him dispose of the packaging, and that “[Lopez] was there with me doing it.” He also testified, however, that they had not yet begun and “were going to do it together,” and that “I was the one throwing it out.”

This evidence, though circumstantial, was sufficient to authorize the jury’s verdict.

Under OCGA § 24-4-6, upon which the jury was instructed, to warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis [870]*870save that of the guilt of the accused. Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, although circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed on appeal unless the verdict of guilty is insupportable as a matter of law.

(Citations, punctuation and footnote omitted.) Simmons v. State, 299 Ga. App. 21, 23 (1) (a) (681 SE2d 712) (2009).

Lopez argues that the evidence shows only spatial proximity to the contraband. We disagree. It is true that constructive possession must be shown by “some connection between the defendant and the contraband other than mere spatial proximity.” (Citations and punctuation omitted.) Brown v. State, 314 Ga. App. 212, 213 (2) (723 SE2d 504) (2012).8 Here, the State produced evidence that Lopez was residing at the house, that he approached an individual in the front yard and asked what he was doing, that he refused to show him the home even though it was for sale, that he occupied a bedroom in which methamphetamine was found, and that he was present when the drugs were brought to the house. The evidence further showed that the occupants did not respond to the police “knock and announce.” When police entered, Lopez was sitting with Urena on a nearby sofa amid a strong odor of methamphetamine, surrounded with plastic garbage bags full of narcotics packing material, which Urena testified Lopez was helping him remove. This circumstantial evidence was sufficient to exclude every reasonable hypothesis save that of guilt and was sufficient for the jury to find Lopez guilty beyond a reasonable doubt of trafficking in methamphetamine. OCGA § 16-13-31 (e); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Taylor v. State, 285 Ga. App. 697, 698-699 (1) (647 SE2d 381) (2007).

2. Lopez also asserts ineffective assistance of counsel in failing to object to the prosecutor’s closing argument and in failing to file a motion to suppress. In ruling on a claim of ineffective assistance,

[ujnder the two-part test established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), [Lopez] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that [871]*871the trial result would have been different if not for the deficient performance. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.

(Citations and punctuation omitted.) Harrison v. State, 313 Ga. App. 861, 865 (3) (722 SE2d 774) (2012).

Making that showing requires that [Lopez] rebut the strong presumption that his lawyer’s conduct falls within the wide range of reasonable professional assistance.

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733 S.E.2d 42, 317 Ga. App. 868, 2012 Fulton County D. Rep. 3238, 2012 WL 4785410, 2012 Ga. App. LEXIS 829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-jimenez-v-state-gactapp-2012.