Paul McCrory v. State

• Court: Court of Appeals of Georgia
• Decided: March 16, 2017
• Docket: A16A1525
• Status: Published

Opinion

THIRD DIVISION MILLER, P. J., MCFADDEN, P. J., and MCMILLIAN, J.

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 16, 2017

In the Court of Appeals of Georgia A16A1525. McCRORY v. THE STATE.

MILLER, Presiding Judge.

Following a jury trial, Paul McCrory was convicted of possession of cocaine

(OCGA § 16-13-30 (a)) as a lesser included offense to the charge of possession of

cocaine with intent to distribute, and acquitted of the charge of driving without a

license (OCGA § 40-5-20 (a)).1 McCrory appeals from the denial of his motion for

new trial, contending that his trial counsel was constitutionally deficient for failing

to properly preserve McCrory’s challenge to the admissibility of similar transaction

evidence. McCrory also contends that the evidence was insufficient to sustain his

conviction for cocaine possession. After review, we conclude that the trial court’s

1 The trial court entered a directed verdict as to the charge of possession of less than an ounce of marijuana (OCGA § 16-13-2 (b)). order denying McCrory’s motion to suppress was legally insufficient to permit

admission of the similar transaction evidence. We therefore vacate the trial court’s

judgment and remand the case for proceedings consistent with this opinion.

“On appeal from a criminal conviction, a defendant no longer enjoys the

presumption of innocence, and the evidence is viewed in the light most favorable to

the guilty verdict.” (Citation omitted.) Scarborough v. State, 317 Ga. App. 523 (731

SE2d 396) (2012). The procedural history of this case is somewhat complex. The

appeal before us arises from McCrory’s arrest on May 25, 2009. At trial, the State

introduced similar transaction evidence of a search ten days earlier, on May 15, that

resulted in McCrory’s arrest on separate drug charges. McCrory was convicted and

sentenced in the instant case, and he subsequently pled guilty to the charges stemming

from the May 15 search and arrest.

(a) The Instant Case

On May 25, 2009, two officers were dispatched to the intersection of Donald

Lee Hollowell and Harwell Road in Fulton County in response to a 911 call. When

the officers arrived, they witnessed a white Buick (“the Vehicle”) parked diagonally

in the middle of Harwell Road with the driver’s door open. McCrory was standing

approximately five feet from the Vehicle with a baseball bat in his hand. The other

2 man involved in the fight, later identified as Bubba, was standing further down the

road, about 100 feet away from the Vehicle. The responding officers never witnessed

anyone inside the Vehicle.

McCrory was handcuffed and placed in the back seat of the officers’ patrol car.

The officers then approached the Vehicle, where they saw a marijuana joint in the

ashtray, and some plastic bags often used to package drugs in the passenger-side

visor. After searching the center console of the Vehicle, the officers recovered 65

individual bags of crack-cocaine and arrested McCrory. No drugs or drug

paraphernalia were found on McCrory’s person.

McCrory told the officers that the Vehicle belonged to his girlfriend, and a

check of the Vehicle’s license plate showed that it was registered to V. S. The officers

impounded the Vehicle because it was obstructing traffic, and they arrested McCrory.

(b) The Similar Transaction

Ten days prior to his arrest for the charges in this case, McCrory had a separate

encounter with police which also resulted in his arrest for possession of cocaine (the

“Similar Transaction”). On that occasion, an Atlanta police officer observed a group

of men, including McCrory and Bubba, standing outside of a convenience store

located on Donald Lee Hollowell Parkway in Fulton County. An unidentified man

3 approached the officer and informed him that McCrory was selling drugs from the

Vehicle, which was parked in the convenience store parking lot.

The officer approached McCrory while he was standing next to the Vehicle,

and subsequently arrested him for providing a fake name and date of birth. The

officer handcuffed McCrory and placed him in the back seat of the patrol car. The

officer then ran a tag search on the Vehicle and learned that it was registered to V. S..

While McCrory was handcuffed and under arrest in the backseat of the patrol

car, and without reading McCrory his Miranda2 rights, the officer asked McCrory for

consent to search the Vehicle. McCrory consented, but said that anything found in the

Vehicle did not belong to him. Upon searching the Vehicle, the officer found large

quantities of crack-cocaine in the center console. The officer then read McCrory his

Miranda rights and had the Vehicle impounded.

(c) Similar Transaction Hearing

Prior to McCrory’s trial in this case, the State properly filed notice of its intent

to present evidence of the Similar Transaction which outlined the purposes for which

the State intended to use that evidence. McCrory moved to suppress the Similar

Transaction evidence on the basis that it resulted from an unconstitutional search.

2 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

4 Following a hearing,3 the trial court denied McCrory’s motion, finding that the drugs

would have been inevitably discovered through the inventory search performed after

the Vehicle was impounded.4

(d) McCrory’s Motion for New Trial

Following his conviction in the instant case for the lesser included offense of

possession of cocaine, McCrory filed a motion for new trial, arguing that the trial

court erred in admitting evidence of the Similar Transaction, that the evidence was

insufficient to sustain his conviction, and that his trial counsel was deficient for

failing to properly preserve his objection to the Similar Transaction Evidence. The

trial court denied McCrory’s motion for new trial, and he appeals from that denial.

On appeal, as they did in the trial court, the parties focus their arguments on the

constitutionality of the search in the Similar Transaction without framing their

arguments in the context of the mandatory test which the trial court was required to

3 The Similar Transaction hearing was actually docketed in the criminal prosecution resulting from the Similar Transaction arrest. At McCrory’s request, the appellate record was supplemented to include the hearing transcript, and the State agrees that this hearing is properly considered as part of this appeal. 4 At trial, defense counsel failed to renew McCrory’s objection to the introduction of the Similar Transaction evidence as was required at that time. Dixon v. State, 285 Ga. 312, 317 (4) (677 SE2d 76) (2009), overruled by Whitehead v. State, 287 Ga. 242 (695 SE2d 255) (2010).

5 perform prior to admission of the Similar Transaction into evidence. Nonetheless, we

reach McCrory’s argument on appeal because we find that his argument in the trial

court, though inartful, sufficiently challenged the State’s ability to legally establish

evidence that McCrory committed the Similar Transaction.

At the time of McCrory’s trial in 2009,

Uniform Superior Court Rule 31.3 (B) prohibit[ed] the State from introducing evidence of similar transactions or occurrences unless specifically approved by the judge. [Rule 31.3 (B) required the State to] provide the defense with written notice and specified information and documents, and the judge [to] hold a hearing . . . out of the presence of the jury.

(Punctuation and footnote omitted.) Moore v. State, 290 Ga. 805, 807 (2) (725 SE2d

290) (2012). (Citation and punctuation omitted.) The State and the trial court bear the

burden of ensuring compliance with Rule 31.3 (B) and a defendant’s failure to object

to non-compliance with the rule will not waive the issue on appeal. Id.; Sheppard v.

State, 294 Ga. App. 270 (669 SE2d 152) (2008).

Specifically, under the old Evidence Code,5 the State had to show that it sought

5 We note that this case was tried under Georgia’s old Evidence Code as it was tried prior to January 1, 2013. Humphrey v. Williams, 295 Ga. 536, 540 (1) (b) (n.2) (761 SE2d 297) (2014). Under our new Evidence Code, the admissibility of similar

6 to introduce the evidence for an appropriate purpose, deemed to be an exception to the general rule of inadmissibility; that there was sufficient evidence to establish that the accused committed the independent transaction; and that there was a sufficient connection or similarity between such transaction and the charged crime so that proof of the former tended to prove the latter.

(Citation omitted.) Williams v. State, 300 Ga. 218, *9-10 (794 SE2d 157) (2016).

Moreover, the trial court was required to make each of these three findings on the

record prior to admitting the similar transaction evidence. Id. Here, the trial court

failed to make any of these findings.

The trial court did not enter a written order concerning admission of the Similar

Transaction, and its oral order admitting the Similar Transaction did not include any

of the requisite factual findings. Indeed, the parties never argued about whether the

State possessed a proper purpose for admission of the evidence, or whether the two

offenses were sufficiently connected or similar. Moreover, the State provided no

testimony at this hearing concerning the facts of this case. Because the record is

devoid of the mandated factual findings, the trial court erred.

transactions is governed by OCGA § 24-4-404 (b). Id.

7 The failure to comply with Rule 31.3 (B) is subject to harmless error review,

meaning that admission of the Similar Transaction did not measurably contribute to

the jury’s guilty verdict. Moore, supra, 290 Ga. at 809 (2); Sheppard, supra, 294 Ga.

App. at 270. In a case such as this, in which the evidence against the defendant is

wholly circumstantial, we cannot say that the trial court’s failure to make these

mandatory findings was harmless.

McCrory was convicted by a jury for possession of cocaine for the May 25,

2009 incident.

Possession of contraband may be joint or exclusive, and actual or constructive . . . 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.

(Citation, punctuation, and footnote omitted.) Herberman v. State, 287 Ga. App. 635,

637 (1) (653 SE2d 74) (2007).

When determining whether the defendant knowingly had both the power and intention at a given time to exercise dominion over drugs, the jury may infer the defendant’s power from his or her access to the drugs, while [the jury] may look to the surrounding circumstances to determine whether the defendant had the requisite intention.

8 (Citation and punctuation omitted.) Price v. State, 303 Ga. App. 859, 866 (4) (b) (694

SE2d 712) (2010).

Here, the State could not establish that McCrory had actual possession of the

cocaine found in the Vehicle on May 25. McCrory had no drugs on his person at the

time of arrest, was not the owner of the Vehicle, and was not in possession of the

vehicle.6 See Blankenship v. State, 301 Ga. App. 602, 603 (1) (b) (688 SE2d 395)

(2009). Further, the State did not establish McCrory’s actual possession of the drugs

as a result of being the driver. The State presented no direct evidence that McCrory

was the driver because he was not found inside the Vehicle. The circumstantial

evidence showed only that McCrory was in the proximity of the Vehicle and the

Vehicle belonged to his girlfriend. However, “[t]o warrant a conviction [for actual

possession of cocaine] on circumstantial evidence, the proved facts shall not only be

consistent with the hypothesis of guilt, but shall exclude every other reasonable

hypothesis save that of the guilt of the accused.” Drammeh v. State, 285 Ga. App.

545, 547 (646 SE2d 742) (2007). The evidence presented by the State could not

6 The State argued at trial and on appeal that V. S.’s testimony was equivocal about who she left the Vehicle with, however, a review of her testimony makes clear that she testified she left the Vehicle in Bubba’s possession while she was out of town.

9 exclude every other reasonable hypothesis about the identity of the driver of the

Vehicle because there was also evidence that Bubba - the man given control of the

Vehicle by its owner - was also at the scene. Consequently, to sustain McCrory’s

conviction, the State had to establish McCrory’s constructive possession of the

cocaine.

“A finding of constructive possession of contraband cannot rest upon mere

spatial proximity to the contraband, especially where, as here, the contraband is

hidden.” (Citations omitted.) Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204)

(1997). To sustain a conviction against him, there must be something which linked

McCrory to the drugs other than his mere presence at the scene of a crime. Young v.

State, 242 Ga. App. 681, 683 (1) (530 SE2d 758) (2000) (finding gun and drugs

together established necessary link); Noble v. State, 225 Ga. App. 470, 471 (484 SE2d

78) (1997) (drugs found inside of the pillowcase of a pillow lying on top of

defendant’s gun established link); Jackson v. State, 216 Ga. App. 842, 844 (1) (456

SE2d 229) (1995) (drugs found on floorboard next to beer can connected to defendant

established link).

Here, the only evidence offered by the State which linked McCrory to the

drugs, other than his proximity to them, was the Similar Transaction evidence. As a

10 result, the introduction of this evidence, without following the mandatory procedure

of Rule 31.3 (B), was not harmless error because this evidence “measurably

contributed to the jury’s verdict.” See Sheppard, supra, 294 Ga. App. at 273 (3).

We therefore vacate the trial court’s judgment of conviction and remand this

case for further proceedings. On remand, the trial court can determine if the State

established all three necessary elements for introduction of the Similar Transaction

evidence under the old Evidence Code based on the record as it stands, or the trial

court can hold a similar transaction hearing if one is necessary to make this

determination. Moore, supra, 290 Ga. at 809-810 (2); see also Sheppard, supra, 294

Ga. App. at 273-274 (3). If the trial court determines that the evidence meets the

standard to admit the Similar Transaction and enters these findings on the record, a

new trial is not required and the trial court may re-enter its judgment of conviction

against McCrory. Moore, supra, 290 Ga. at 809-810 (2); see also Sheppard, supra,

294 Ga. App. at 273-274 (3). Should this happen, McCrory may take an appeal from

that judgment in accordance with OCGA §§ 5-6-37 and 5-6-38. Moore, supra, 290

Ga. at 810. If, however, the trial court determines that the evidence did not meet the

standard prescribed by the old Evidence Code, a new trial will be required and the

trial court will need to determine whether the Similar Transaction is admissible in that

11 trial pursuant to the new Evidence Code – OCGA § 24-4-404 (b). See Humphrey,

supra, 295 Ga. at 540 (1) (b) (n.2); Moore, supra, 290 Ga. at 809-810 (2). We further

conclude that the admitted evidence, including the Similar Transaction evidence, is

sufficient to support McCrory’s conviction and therefore, the State may retry him

should that be necessary on remand. Green v. State, 291 Ga. 287, 289 (1) (728 SE2d

668) (2012). (“[I]n determining the sufficiency of the evidence, we consider all of the

evidence admitted by the trial court, regardless of whether it was erroneously

admitted.”).

Judgment vacated and case remanded with direction. McFadden, P.J., concurs

fully and specially. McMillian, J., concurs specially.

12 A16A1525. McCRORY v. THE STATE.

MCFADDEN, Presiding Judge, concurring fully and specially.

I write separately to explain that the majority’s holding that “the State could not

establish that McCrory had actual possession of the cocaine found in the Vehicle on

May 25,” when properly read in context, means only that the prosecution did not

establish actual possession as a matter of law. So I agree with Judge McMillian that

the law of the case as established by this opinion does not decide the issue of actual

possession. A16A1525. McCRORY v. THE STATE.

MCMILLIAN, Judge, concurring specially.

I agree that the judgment should be vacated and the case remanded for further

proceedings as set out in the majority opinion. However, I disagree with the

majority’s analysis of why admission of the Similar Transaction without the

appropriate findings by the trial judge was potentially harmful error.1

Although the majority ultimately and properly concludes that this evidence

taken together was sufficient to authorize McCrory’s conviction, thus permitting

retrial should that be necessary on remand, the majority errs by unequivocally stating

1 Because I do not agree with all that is said in the majority opinion, that opinion is nonbinding physical precedent. See Court of Appeals Rule 33 (a). that “the State could not establish that McCrory had actual possession of the cocaine

found in the Vehicle on May 25.” Because this statement is inconsistent with the

majority’s conclusion on sufficiency and is unnecessary to the analysis, I write

separately to clarify that should a retrial be required, the issue of whether McCrory

had actual or constructive possession of the cocaine has not been decided by this

Court and should not be considered law of the case. See OCGA § 9-11-60 (h) (“any

ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all

subsequent proceedings in that case in the lower court and in the Supreme Court or

the Court of Appeals as the case may be”).

Construed to support the jury’s verdict, the evidence shows that when police

arrived on the scene of the altercation, they observed McCrory standing in the street

with a baseball bat shouting at another man who was “quite a distance” farther away.

When the officers dispatched to the scene first observed McCrory, he was located

approximately five feet from the driver’s side of a white car, which was also sitting

in the middle of the street. The car door was “wide open,” the keys were in the

ignition, and a partially rolled marijuana joint was sitting in plain view in the ashtray.

After the officer saw the marijuana joint, he looked up and observed bags used to

package drugs in the sun visor, and a search revealed 65 plastic bags containing 130

2 hits of crack cocaine in the console arm rest between the front seats. And the vehicle

in question belonged to McCrory’s girlfriend. This circumstantial evidence, as well

as other evidence presented at trial, including the similar transaction evidence, was

sufficient to authorize McCrory’s conviction of possession of cocaine. See, e.g.,

Williams v. State, 298 Ga. 208, 213 (2) (a) (779 SE2d 304) (2015) (circumstantial

evidence coupled with other evidence sufficient); Taylor v. State, 305 Ga. App. 748,

751-52 (1) (700 SE2d 841) (2010) (circumstantial evidence along with other evidence

such as similar transaction evidence sufficient). However, in light of the

circumstantial nature of the State’s case, I cannot say that the trial court’s error in

failing to make the necessary findings was harmless. See Moore v. State, 290 Ga. 805,

809 (2) (725 SE2d 290) (2012).