Ora Peppers v. State

• Court: Court of Appeals of Georgia
• Decided: May 3, 2012
• Docket: A12A0501
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

May 3, 2012

In the Court of Appeals of Georgia A12A0501. PEPPERS v. THE STATE. BO-020C

BOGGS, Judge.

A jury found Ora Peppers guilty on two counts of possession of a firearm by

a convicted felon, but acquitted him on charges of aggravated cruelty to animals and

discharge of a gun near a highway. Following the denial of his motion for new trial,

Peppers appeals, asserting only that the evidence is insufficient to sustain his

convictions. We find the evidence sufficient on one count of possession of a firearm

by a convicted felon, but insufficient on the second count. We therefore affirm in part

and reverse in part, and remand this case for resentencing.

On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict and the defendant no longer enjoys a presumption of

innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). An appellate court does not weigh the evidence or determine witness credibility but only

determines whether, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC

2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to

find beyond a reasonable doubt that the defendant was guilty of the charged offense.

Id.

So viewed, the evidence showed that police officers responded to a call that

someone shot a dog in front of a child. When officers investigated the matter, they

made contact with Peppers, who was standing on his front porch. An officer asked

Peppers if he “had any weapons in the house,” to which Peppers responded “yes,” and

allowed officers to enter his home. Once inside the home, Peppers picked up a .22-

caliber rifle “on his left-hand side in the corner of the hallway kind of living room

area . . . two to three feet within the residence as [officers] first made entry into the

house.” Peppers handed the rifle to one of the officers.

Officers then asked Peppers “if there were any other weapons in the house.”

Peppers first replied that “there wasn’t,” but shortly thereafter told officers that there

was a shotgun in the house. One of the officers testified that Peppers led them through

the house into a back bedroom on the left side of the home where he showed officers

“where the shotgun was, at which time [the officer] didn’t let him handle that weapon.

2 [The officer] took possession of it.” An officer testified that Peppers did not indicate

“whose bedroom it was[,]” that there was an older woman in the house, and that he

did not “recall ever discussing whose weapons they were.”

Peppers testified that he “didn’t have a gun but [his roommate] had one.” He

explained that to cooperate with police, he retrieved his roommate’s guns. Peppers

stated further that when officers asked about weapons, he asked his roommate if he

could show them to police and the roommate responded that it was “all right” to do

so. He explained that the weapons were on his roommate’s side of the home, and that

although he could access her side of the home, he did not do so. Peppers explained

further that he shared the living room with his roommate “and that’s all.”

Peppers’ roommate testified that the rifle and shotgun belonged to her and that

she kept them in her bedroom “between [her] bookcase and [her] bathroom.” She

explained that Peppers “never touched [her] guns.” The roommate stated further that

when she heard Peppers tell the officers that he did not have any weapons, she

retrieved two weapons she owned from her bedroom and put them by the front door,

and that Peppers asked her if he could hand the guns to the officers. She explained

that she and Peppers had separate bedrooms but that they “share the - - all the kitchen

and stuff and the bathroom . . . [w]e split our rent and we split our bills.”

3 A witness testified that on the day of the incident, she “heard a gun go off,”

and when she turned, she saw Peppers holding a gun that looked like the .22-caliber

rifle that officers retrieved from Peppers’ home.

Peppers was charged with two counts of possession of a firearm by a convicted

felon based upon his prior felony convictions and his possession of a rifle and a

shotgun. A jury found him guilty on both counts.

Peppers argues that he did not have the power and intention to exercise

dominion and control over his roommate’s firearms that were kept in her bedroom.

OCGA § 16-11-131 (b) provides that “[a]ny person . . who has been convicted of a

felony by a court of this state or any other state . . . receives, possesses, or transports

any firearm commits a felony.” Possession can be actual or constructive. Layne v.

State, ___ Ga. App. ___ slip op. at 10 (2) (Case No. A11A2049; decided January 18,

2012). It is undisputed that Peppers had been previously convicted of the felonies of

burglary and arson in the first degree. And a witness testified that immediately after

hearing a gunshot, she saw Peppers holding a gun similar to the .22-caliber rifle

Peppers handed to officers just inside the front door to his home. The evidence was

therefore sufficient to support Peppers’ conviction for possession of a rifle by a

convicted felon. See Deering v. State, 244 Ga. App. 30, 32 (2) (535 SE2d 4) (2000)

4 (person in direct physical control of thing at a given time is in actual possession of

it).

But we must reverse Peppers’ conviction for possession of a firearm by a

convicted felon based upon his alleged possession of the shotgun. While Peppers

knew the location of the shotgun, there was no evidence presented that he had actual

possession of it outside of possibly handing it to officers at their request, nor is there

evidence that Peppers was in constructive possession of the shotgun. “A person who,

though not in actual possession, knowingly has both the power and the intention at

a given time to exercise dominion or control over a thing is then in constructive

possession of it. Constructive possession is sufficient to prove possession of a firearm

by a convicted felon.” (Citations and punctuation omitted.) Id. The evidence here

showed two possible scenarios: (1) that Peppers asked his roommate for permission

to take officers to her room to retrieve the shotgun, and led officers to the roommate’s

bedroom where they retrieved it; or (2) Peppers handed the officers the shotgun that

his roommate had placed by the door after hearing officers ask if there were guns in

the home. Neither of these circumstances is sufficient to show that Peppers actually

possessed or exercised sufficient dominion and control over the shotgun to establish

constructive possession. See Peterson v. State, 252 Ga. App. 469, 471-472 (2) (556

5 SE2d 514) (2001) (evidence insufficient where firearms were found in shoe boxes in

bedroom closet, and although photographs and paperwork bearing defendant’s name

were found, there was no evidence that defendant leased or resided in apartment or

had personal items or clothing there); compare Layne, supra (evidence that two

firearms and ammunition for a third were found in defendant’s padlocked bedroom

sufficient to show constructive possession); Deering, supra, 244 Ga. App. at 33 (2)

(evidence of constructive possession where defendant was sole occupant of vehicle

and gun was cocked, loaded, and between front seats of car within his reach);

Crawford v. State, 233 Ga. App. 323, 324 (1) (b) (504 SE2d 19) (1998) (“A jury is

authorized to find constructive possession of a firearm by one occupant of a shared

bedroom when the firearm is found in a dresser drawer containing clothing

appropriate to that occupant’s sex.[Cit.]”).

Judgment affirmed in part, reversed in part, sentence vacated and case

remanded for resentencing. Doyle, P. J. and Andrews, J., concur.