Michael Scott v. State

• Court: Court of Appeals of Georgia
• Decided: March 12, 2014
• Docket: A13A1658
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

March 12, 2014

In the Court of Appeals of Georgia A13A1658. SCOTT v. THE STATE.

MILLER, Judge.

Following a jury trial, Michael Scott was convicted of trafficking cocaine

(OCGA § 16-13-31 (a) (1)) (Count 1); possession of cocaine with intent to distribute

(OCGA § 16-13-30 (b)) (Count 2); possession of marijuana with intent to distribute

(OCGA § 16-13-30 (j)) (Count 3); maintaining a dwelling or structure for the

distribution of controlled substances (OCGA § 16-13-42 (5)) (Count 4); and three

counts of possession of a firearm during the commission of a crime (OCGA § 16-11-

106 (b) (4)) (Counts 5, 6, and 7).1 Scott appeals from the denial of his motion for new

1 Scott was tried with co-defendants Kenneth Scott, Anthony Christopher Anderson, and Michael Lane. This Court affirmed the convictions of Kenneth Scott and Anderson in Case Nos. A12A1961 and A12A2293, respectively, and the Court’s opinion in the consolidated appeals was unpublished. Michael Scott’s appeal was remanded to the trial court for completion of the record, was subsequently redocketed in this Court, and is presently before us. trial, contending that the evidence was insufficient to sustain his convictions on any

of the charges, the trial court erred by not granting a directed verdict, the trial court

erred in allowing a witness to testify as an expert, and he received ineffective

assistance of counsel. For the reasons that follow, we reverse.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.

(Citations and punctuation omitted.) Castillo v. State, 288 Ga. App. 828 (655 SE2d

695) (2007).

So viewed, the trial evidence shows that Anthony Holloway had known

Michael Scott and his brother, Kenneth Scott, for at least 16 years through the

neighborhood surrounding 307 East Jenkins Street in Vidalia, Georgia. Michael Scott

lived at 307 Martin Luther King Jr. Boulevard, in a house behind his brother. Kenneth

Scott also rented the property at 307 East Jenkins from an individual who testified

that he was unaware of the drug activity at the house. Co-defendant Lane lived next

door, and an electrical cord was run from Lane’s residence to 307 East Jenkins to

provide power.

2 Holloway had been going to 307 East Jenkins for a couple of years and had

been inside the house. While there, Holloway observed the sale of drugs. When

people would drive up to the house to buy drugs, they would blow the horn, and

Kenneth Scott would tell someone to “hit a block.” On some occasions, Holloway

heard Kenneth Scott tell people that he did not have any drugs. A couple of days later,

Kenneth Scott would have more drugs, and he would tell people that he had “re’d

up.” According to Holloway, co-defendant Anderson would be at the house for a

couple of weeks, and, when he would leave, Kenneth Scott would run out of drugs.

When Anderson returned, people would return to the house to buy drugs. Holloway

witnessed over 100 drug transactions take place at 307 East Jenkins Street.

In 2009, the Vidalia Police Department began receiving tips about suspected

drug activity around 307 East Jenkins Street. Upon investigating those tips, an

undercover police officer made a hand-to-hand purchase of drugs at 307 East Jenkins

Street in June or July. Thereafter, police officers used a confidential informant to

make a controlled drug buy of three packages of crack cocaine. Police officers then

obtained a search warrant for 307 East Jenkins Street.

3 On September 25, 2009, several police officers executed the search warrant.

About 10 minutes prior to the execution of the warrant, one officer, who was on

patrol in the area, drove by 307 East Jenkins and observed Michael Scott and the

three other co-defendants standing outside in the front yard. The officer later returned

to 307 East Jenkins with the search team, and Michael Scott was walking along the

side of the house at that time. Officers detained Michael Scott during a search of the

house. Officers also detained Anderson, who had been sitting on the front porch, and

Holloway, who had been standing near Michael Scott. An officer subsequently

searched Michael Scott prior to placing him in a patrol car, and the officer found

approximately $254 in cash on Scott’s person. The cash was in small denominations,

with no bill larger than $20.

Upon entering 307 East Jenkins, officers saw several packages of crack

cocaine, packaged as if for resale, and slung in a straight line from the front door,

where Anderson had been seated, to a small table in the middle of the room. During

a search of the residence, officers found: 37 individually wrapped packages of

powder cocaine; another large chunk of cocaine of powdery substance in a Ziploc bag

inside a box in the corner of the front room; three cigar boxes containing individual

packages of marijuana and another individual package of cocaine; money scattered

4 on the floor; digital scales; and cutting tools. Officers also found a large slab of crack

cocaine weighing approximately 72 grams. Officers also found three loaded guns in

the front room of the house there were strategically placed such that if a person was

standing in the middle of the room, he could easily access any one of the three guns.

Officers also recovered personal items belonging to Kenneth Scott and Anderson

from inside the residence.

A detective testified that the slab of cocaine weighing 72 grams would be cut

down and packed for individual sale, and that it had an estimated value of $7,200.

The detective testified that the seized evidence was consistent with drug distribution,

and that 307 East Jenkins was a “trap house,” or a building used mainly for

distributing drugs.

1. On appeal, Scott contends the evidence was insufficient to support any of the

drug charges, because he was merely present at 307 East Jenkins when the search

warrant was executed, there was no evidence that he had actual or constructive

possession of the drugs, and there was no evidence that he was a party to these

crimes. We agree.

In order to prove the three drug charges, the State was required to prove that

Scott possessed the requisite drugs. For cocaine trafficking, the State was required to

5 prove that Scott knowingly possessed 28 grams or more of cocaine. OCGA § 16-13-

31 (a) (1); McGee v. State, 316 Ga. App. 661, 664 (1) (730 SE2d 131) (2012) (“[T]he

State must prove that the defendant knew that he possessed a substance and knew that

the substance contained some amount of cocaine.”) (citation and punctuation

omitted). Similarly, the State was required to prove that Scott possessed cocaine and

marijuana with the intent to distribute. OCGA § 16-13-30 (b) (possession with intent

to distribute cocaine); OCGA § 16-13-30 (j) (1) (possession with intent to distribute

marijuana).

In this case, it is undisputed that Scott did not actually possess the drugs.

Accordingly, “[t]he issue before us is whether [Scott] was in joint constructive

possession of the drug, and the question turns on whether he and the other defendants

knowingly shared the power and intention to exercise dominion or control over

them.” Vines v. State, 296 Ga. App. 543, 545 (1) (675 SE2d 260) (2009). Mere spatial

proximity to contraband is not sufficient to prove constructive possession. Brown v.

State, 285 Ga. App. 330, 331 (646 SE2d 273) (2007). Rather, the State must show

that the defendant had the power and intent to exercise control over the drugs, which

requires “evidence of some meaningful connection between the defendant and the

[drugs].” (Citation and punctuation omitted.) Id. Moreover,

6 one who intentionally aids or abets in the commission of a crime is a party to it. OCGA § 16-2-20 (b) (3). It is true mere presence at the scene of a crime, even coupled with knowledge and approval, is insufficient to convict one of being a party. However, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. A person will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. If the totality of circumstantial evidence is sufficient to connect the defendant with the possession of the drugs, the conviction will be sustained, even though there is evidence to authorize a contrary finding.

(Citations and punctuation omitted.) Martinez v. State, 303 Ga. App. 71, 73-74 (692

SE2d 737) (2010).

Here, when the police executed the search warrant on September 25, 2009, they

found Scott standing outside 307 East Jenkins. The undisputed evidence shows,

however, that he did not own or lease that residence. Consequently, there is no

presumption that Scott possessed the drugs. See Bailey v. State, 294 Ga. App. 437,

439-440 (1) (669 SE2d 453) (2008) (where evidence shows that a defendant owned

or controlled premises where contraband was found, it gives rise to a rebuttable

presumption that the defendant possessed the contraband). While Scott was seen

outside the house on prior occasions, including about 10 minutes prior to the police

officers’ arrival, there was no evidence that he was inside the house the day the search

7 was conducted. Additionally, police officers did not find anything “in the residence

that linked [Scott] to the residence such as clothing, bills, fingerprints, financial

statements, photographs, records, books, or other personal belongings.” Brown, supra,

285 Ga. App. at 332. The officers also did not find drugs on Scott or “anything on his

person linking him to the house or its contents.” Id. The fact that Scott had over $250

when arrested is also insufficient to connect him to the drugs found inside the

residence. See Paden v. State, 216 Ga. App. 188, 190 (1) (453 SE2d 788) (1995).

Further, Scott’s conviction cannot be upheld on the ground that he was a party

to the crimes, because the State failed to present evidence that he intentionally caused

another to commit the crimes, aided or abetted in the commission of the crimes, or

advised or encouraged another to commit the crimes. Notably, although Holloway

testified that he saw hundreds of drug transactions at the house, there is no evidence

that Scott was involved in any of these transactions. Rather, Holloway testified that

Scott’s brother, Kenneth, directed the drug transactions and that Anderson supplied

the drugs; however, he never specifically identified Scott as being involved.

Likewise, while the police purchased drugs at 307 East Jenkins, including a hand-to-

hand purchase by an undercover officer in June or July 2009, there was no evidence

that Scott was involved in these transactions either. In other words, while the

8 circumstantial evidence shows that Scott may have been aware of the drug trafficking

at the house, there was no evidence showing that Scott participated in any criminal

activity occurring on the property. See Crenshaw v. State, 183 Ga. App. 527, 529 (1)

(359 SE2d 419) (1987). Consequently, the State’s evidence did not show essential

links between Scott’s proven conduct and the drug trafficking and distribution

charges. See, e.g., Flores v. State, 308 Ga. App. 368, 373 (4) (707 SE2d 578) (2011)

(defendant’s mere presence in vehicle, which he did not own or control, was

insufficient to sustain conviction for trafficking methamphetamine where the State

failed to present evidence of some meaningful connection between the defendant and

the drugs); Brown, supra, 285 Ga. App. at 330, 332-333 (even though defendant

arranged to sell cocaine to a confidential informant, his presence outside the residence

was insufficient to sustain conviction for trafficking cocaine where no evidence

linked the defendant to the property or to the drugs found inside); Stringer v. State,

275 Ga. App. 519, 521-522 (621 SE2d 761) (2005) (reversing conviction for

possession of cocaine where no evidence linked defendant to cocaine found in hotel

room other than fact that the defendant was in the room and it was registered in his

name). Compare Lott v. State, 303 Ga. App. 775, 779 (1) (694 SE2d 698) (2010)

(evidence supported possession for trafficking conviction even though defendants did

9 not own house where drugs were found because the defendants had keys to the house,

they were found inside the house, another defendant ran towards the bedroom when

officers arrived to execute a search warrant, and they found the defendants’ personal

items inside the residence).

Accordingly, we reverse Scott’s convictions for trafficking cocaine (Count 1),

possession of cocaine with intent to distribute (Count 2), and possession of marijuana

with intent to distribute (Count 3). Since Scott’s convictions for possession of a

firearm during the commission of a felony (Counts 5, 6, and 7) hinge on these other

felony convictions, they must also be reversed. See Flores, supra, 308 Ga. App. at

373-374 (4).

2. Scott also contends that the evidence was insufficient to support his

conviction for knowingly keeping a dwelling for the purpose of using controlled

substances in violation of OCGA § 16-13-42 (a) (5). We agree.

[I]n order to support a conviction under OCGA § 16-13-42 (a) (5) for maintaining a residence or other structure or place used for keeping controlled substances, the evidence must show that one of the purposes for maintaining the structure was the keeping of the controlled substance; thus, the mere possession of limited quantities of a controlled substance within the residence or structure is insufficient to support a conviction under OCGA § 16-13-42 (a) (5). . . . [I]n order to support a conviction under this statute for maintaining a residence or other structure or place used for selling controlled substances, the evidence

10 must be sufficient to support a finding of something more than a single, isolated instance of the proscribed activity. . . . [I]n determining the sufficiency of the evidence in these regards, each case must be adjudged according to its own unique facts and circumstances, and there is no inflexible rule that evidence found only on a single occasion cannot be sufficient to show a crime of a continuing nature.

(Citation and punctuation omitted.) Chua v. State, 289 Ga. 220, 230 (1) (c) (710 SE2d

540) (2011).

Here, although the evidence described above shows that the house at 307 East

Jenkins was used mainly for the distribution of drugs, there is no evidence that Scott

knowingly kept or maintained the house. While Scott told officers that he did yard

work at the property, by its plain language, OCGA § 16-13-42 (a) (5) proscribes only

the keeping or maintaining of a structure, not grounds-keeping. Moreover, the trial

evidence does not show that Scott was inside the residence prior to the execution of

the search warrant or that he had ever been inside the house at all. Consequently, the

evidence was insufficient to sustain his conviction under OCGA § 16-13-42 (a) (5)

(Count 4).

3. In light of our holdings in Divisions 1 and 2, it is unnecessary to address

Scott’s remaining enumerations of error.

Judgment reversed. Barnes, P. J., and Ray, J., concur.