Milton Tanksley v. State

• Court: Court of Appeals of Georgia
• Decided: May 6, 2014
• Docket: A14A0061
• Status: Published

Opinion

SECOND DIVISION ANDREWS, P. J., MCFADDEN 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/

May 6, 2014

In the Court of Appeals of Georgia A14A0061. TANKSLEY v. THE STATE.

MCFADDEN, Judge.

After a bench trial, the trial court found Milton Tanksley guilty of possession

of cocaine. OCGA § 16-13-30 (a). On appeal, Tanksley challenges the sufficiency of

the evidence and the effectiveness of his trial counsel. Because the evidence was

sufficient and Tanksley has not shown that his trial counsel was deficient, we affirm.

1. Sufficiency of evidence.

When a defendant challenges the sufficiency of the evidence supporting his

criminal 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.” Jackson v. Virginia,

443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). So viewed, the evidence showed that shortly after midnight on

August 7, 2011, Tanksley was a passenger in a vehicle that the police stopped for a

tag violation. During the stop, he consented to be searched for weapons. The officer

who performed the search noticed on the ground at Tanksley’s feet a pill bottle that

had not been there when Tanksley first got out of the vehicle. Tanksley tried to

conceal the pill bottle with his feet. The pill bottle contained crack cocaine. Similar

transaction evidence showed that, in 2006, Tanksley was found asleep in the driver’s

seat of a stopped vehicle, and in the course of investigating that vehicle officers found

a pill bottle containing crack cocaine in his pocket.

Tanksley argues that this evidence was insufficient to show that he possessed

the cocaine. “The law recognizes that possession can be actual or constructive[.]”

Richardson v. State, 305 Ga. App. 850, 852 (700 SE2d 738) (2010) (citation omitted).

“A person who knowingly has direct physical control over a thing at a given time is

in actual possession of it. A person who, though not in actual possession, knowingly

has both the power and intention at a given time to exercise dominion or control over

a thing is then in constructive possession of it.” Vines v. State, 296 Ga. App. 543, 545

(1) (675 SE2d 260) (2009) (citations omitted).

2 Tanksley argues that the only evidence of his possession of the crack cocaine

in the pill bottle was his spatial proximity to it. See Davenport v. State, 308 Ga. App.

140, 145 (1) (b) (706 SE2d 757) (2011) (“A finding of constructive possession . . .

must be based on a connection between the defendant and the object that is more than

spatial proximity.”) (citations omitted). But other evidence also linked Tanksley with

the cocaine, namely that the pill bottle containing the cocaine was not on the ground

when Tanksley got out of the car, that Tanksley attempted to hide the bottle with his

feet during the search, and that in the similar transaction Tanksley had carried on his

person a pill bottle containing crack cocaine. This evidence authorized the trier of fact

to find that Tanksley had the power and intention to exercise control over the cocaine

necessary for constructive possession. See Mallard v. State, 321 Ga. App. 650, 652

(742 SE2d 164) (2013) (evidence supporting finding that defendant had constructive

possession of canister containing methamphetamine that was found near her foot

included defendant’s attempt to conceal canister and canister’s appearance of having

been on the ground only a short time). See also Washington v. State, 251 Ga. App.

206, 209 (1) (553 SE2d 855) (2001) (whether the state has met its burden of showing

that circumstantial evidence excludes every other reasonable hypothesis is a question

3 for the finder of fact that will not be disturbed on appeal unless verdict is

unsupportable as matter of law).

2. Effectiveness of trial counsel.

Tanksley argues that he received ineffective assistance of trial counsel because

counsel did not make specific objections to the similar transaction evidence. To

prevail on this claim, he was required to show both deficient performance by trial

counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104

SCt 2052, 80 LE2d 674) (1984).

Tanksley has not shown that his trial counsel performed deficiently. When the

state sought to introduce the similar transaction evidence, trial counsel responded: “I

understand what [the state] has proffered to the [c]ourt, and law is law as far as the

similarity in the case before the [c]ourt and the one back in 2006. We just would

object on general grounds.” The trial court then admitted the evidence to show

motive, intent, and bent of mind. See former OCGA § 24-2-2.1 See generally Peoples

v. State, __ Ga. __, __ (4) (b) (__ SE2d __) (Case No. S13A1893, decided Apr. 10,

2014) (similar transaction evidence could be offered to prove such things as motive,

1 Georgia’s former Evidence Code was in effect at the time of Tanksley’s trial. Under the new Evidence Code, OCGA § 24-4-404 (b) governs the admission of similar transaction evidence.

4 intent, and bent of mind, among other things, under former Evidence Code). At the

motion for new trial hearing, trial counsel testified that she did not more specifically

object to the similar transaction evidence because she thought the evidence was

admissible, and that she had discussed that issue with Tanksley before trial.

We agree with trial counsel’s assessment of the admissibility of the similar

transaction evidence under the law then in effect. “In the consideration of the

admissibility of similar transaction evidence, the focus is properly on the similarities,

and not the differences, between the act in question and the incident on trial.” Hunt

v. State, 288 Ga. 794, 797 (3) (708 SE2d 357) (2011). There are obvious similarities

between this case – where Tanksley was accused of possessing crack cocaine in a pill

bottle – and the prior incident – where Tanksley was found in possession of crack

cocaine in a pill bottle. Trial counsel’s failure to raise a meritless objection was not

deficient performance. See Wesley v. State, 286 Ga. 355, 356 (3) (a) (689 SE2d 280)

(2010).

Judgment affirmed. Andrews, P. J., and Ray, J., concur.