Osorio v. State

748 S.E.2d 483, 323 Ga. App. 843, 2013 Fulton County D. Rep. 2897, 2013 WL 5227305, 2013 Ga. App. LEXIS 759
CourtCourt of Appeals of Georgia
DecidedSeptember 12, 2013
DocketA13A1015
StatusPublished
Cited by2 cases

This text of 748 S.E.2d 483 (Osorio 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
Osorio v. State, 748 S.E.2d 483, 323 Ga. App. 843, 2013 Fulton County D. Rep. 2897, 2013 WL 5227305, 2013 Ga. App. LEXIS 759 (Ga. Ct. App. 2013).

Opinion

Ray, Judge.

After a jury trial, Eduardo Osorio was convicted of trafficking in methamphetamine (OCGA § 16-13-31 (e)). He appeals his conviction and the denial of his motion for a new trial, contending that the trial court erred in denying his motion for directed verdict of acquittal. Osorio also contends that he had ineffective assistance of counsel. For the reasons that follow, we affirm.

1. Osorio contends that the trial court erred in denying his motion for a directed verdict because the State failed to prove Osorio’s involvement in the crime beyond his mere presence in the vehicle where the drugs were found.

The standard for reviewing a denial of a motion for a directed verdict of acquittal is the same test to be used when the sufficiency of the evidence is challenged, i.e.,... whether 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.

(Footnotes omitted.) Palencia-Barron v. State, 318 Ga. App. 301, 302 (1) (733 SE2d 824) (2012). Further,

[w]e view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Moreover, an appellate court does not weigh the evidence or determine the credibility of witnesses. As long as there is some competent evidence, even though contradicted, on each element necessary to prove the [SJtate’s case, the jury’s verdict will be upheld.

(Punctuation and footnotes omitted.) Id.

So viewed, the evidence shows that on May 12, 2010, Officer Adam Belcher, a Bartow County sheriff’s deputy assigned to the Bartow-Cartersville Drug Task Force, received information from a confidential informant about a drug supplier who could sell multiple ounces of methamphetamine. At Belcher’s direction, the informant made three phone calls to the supplier, a man later identified as Jason Smith, to negotiate the purchase of methamphetamine. The phone calls were all recorded. The informant arranged for the drug transaction to take place in the parking lot of a McDonald’s restaurant in Bartow County.

Approximately two hours after the informant’s initial phone call to Smith, an undercover officer drove the informant to the location [844]*844where the drug transaction was to occur. A digital recording device was placed on the informant to record and simultaneously relay to the take-down team all verbal communications between the participants during the drug transaction, and the informant was instructed to provide a specific take-down signal once he observed the drugs.

When Smith and Osorio pulled into the parking lot, the informant got out of the undercover officer’s car and got into the vehicle with Smith and Osorio. At that time, Smith was in the driver’s seat, Osorio was in the front passenger seat, and the informant was in the rear passenger seat behind Osorio. Smith then got out of the vehicle, retrieved a bag from the trunk, and got back into the driver’s seat. Approximately one minute later, the confidential informant gave the take-down signal, and law enforcement officers converged on the vehicle and placed Smith and Osorio under arrest. During the subsequent search of the vehicle, the police found plastic baggies containing approximately three ounces of methamphetamine behind the front passenger seat.1

To establish that Osorio committed the offense of trafficking in methamphetamine as charged in this case, the State was required to prove that Osorio was a party to possessing the methamphetamine that was found in the vehicle. See OCGA § 16-13-31 (e) (“Any person who ... has possession of 28 grams or more of methamphetamine ... commits the felony offense of trafficking in methamphetamine.”). It is not necessary that a defendant have actual and exclusive possession of the contraband; possession may be joint and constructive. Sherrer v. State, 289 Ga. App. 156, 159 (2) (656 SE2d 258) (2008).

Osorio argues that his mere presence in the vehicle and his spatial proximity to the drugs found therein were insufficient to support his conviction. However, the State’s case was not limited to Osorio’s presence and spatial proximity. At trial, an audio disc containing the recordings of the three phone calls setting up the drug transaction, as well as the recording of the actual transaction and subsequent takedown, was played for the jury. In the recording of one of the phone calls, a voice with a Hispanic accent (identified at trial as Osorio’s) was heard in the background stating “all I got is three [ounces of methamphetamine].”

Furthermore, Smith testified at Osorio’s trial.2 Although Smith testified that he had merely asked Osorio to ride along with him, that Osorio did not know anything about the methamphetamine, and that [845]*845Osorio was not the person who was heard on the phone call stating “all I got is three,” Smith acknowledged that he had told law enforcement (Belcher) immediately after the incident that he had gotten the drugs from Osorio and that Osorio was the one who had been heard on the phone call stating that he had three ounces of methamphetamine. A jury is not obligated to believe a witness’s trial testimony and may accept or reject any portion of it. Bryson v. State, 293 Ga. App. 392, 394 (1) (667 SE2d 170) (2008). Inasmuch as Smith’s trial testimony directly contradicted his previous statements to law enforcement, the jury was authorized to consider Smith’s prior inconsistent statements as substantive evidence of Osorio’s guilt. Gober v. State, 300 Ga. App. 202, 203 (1) (a) (684 SE2d 675) (2009). Accord Sherrer, supra at 160 (2) (Where a co-indictee who had previously pled guilty to trafficking in methamphetamine testified at defendant’s trial that defendant was not involved, the jury was entitled to believe the co-indictee’s prior inconsistent statements showing that defendant was jointly engaged in the crime.).

The evidence that Osorio had stated that he had three ounces of methamphetamine approximately two hours before the drug transaction, combined with the evidence that approximately three ounces of methamphetamine were found in the vehicle and that Osorio had provided the methamphetamine to Smith, shows that Osorio was more than merely present in the vehicle in close proximity to where the drugs were found. At a minimum, this evidence was sufficient to show that Osorio was a party to the offense of trafficking in methamphetamine. Accordingly, the trial court did not err in denying Osorio’s motion for a directed verdict.

2. Osorio also contends that he received ineffective assistance of counsel at trial. To prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984).

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Bluebook (online)
748 S.E.2d 483, 323 Ga. App. 843, 2013 Fulton County D. Rep. 2897, 2013 WL 5227305, 2013 Ga. App. LEXIS 759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osorio-v-state-gactapp-2013.