Payne v. State

545 S.E.2d 336, 248 Ga. App. 158, 2001 Fulton County D. Rep. 668, 2001 Ga. App. LEXIS 117
CourtCourt of Appeals of Georgia
DecidedFebruary 1, 2001
DocketA00A2404
StatusPublished
Cited by14 cases

This text of 545 S.E.2d 336 (Payne 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
Payne v. State, 545 S.E.2d 336, 248 Ga. App. 158, 2001 Fulton County D. Rep. 668, 2001 Ga. App. LEXIS 117 (Ga. Ct. App. 2001).

Opinion

Barnes, Judge.

A jury found Ronald Edward Payne guilty of possession of cocaine with the intent to distribute. He appeals, contesting the sufficiency of the evidence, the admission of certain evidence, and several of the jury charges. Having determined that no reversible error occurred, we affirm.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that on July 14, 1998, at approximately 7:30 p.m., an officer of the Hall County Red Dog Unit pulled over a four-door Cadillac after seeing the driver litter. In addition to the driver, the vehicle also contained a female, who was in the front passenger seat, and Payne, who was in the rear seat behind the front passenger seat. The officer testified that because there were several occupants inside the vehicle and the area was a “high drug, high crime area,” he called for assistance and backup officers arrived.

The driver consented to a search of the vehicle, and officers asked Payne and the other passenger to exit the vehicle. One of the backup officers, Officer Grindle, who was positioned by the rear passenger door and responsible for getting Payne out of the vehicle safely, stated at trial that “[Payne] opened his door up, and he sort of j slid out the door, and when he did, a baggy fell on the ground at his feet.” The officer testified that “[the bag] came from his person. . . It sort of slid out the same time he slid out of the vehicle.”

Officers Lane and Payne, two other backup officers, were also standing on the passenger side of the vehicle. Officer Lane testified that he was positioned at the back right side of the car, and when | Payne’s “door was opened, and as the defendant stood up, as he was *159 placing his feet out and stood up, I observed a package fall from his person. I didn’t see as far as his hands. I just saw it at the waist area drop to the ground.”

Officer Payne testified that he was standing three feet from the side of the car and was watching the female passenger as she exited the car. He did not see anything fall out of the car beside her. As the defendant was exiting the vehicle, he heard something strike the ground, then turned to see a plastic bag on the ground “right outside the rear passenger door . . . maybe two and a half feet from the vehicle.” There was no other debris in that area.

The bag contained twenty-eight rocks of crack cocaine with a total net weight of five grams. Two officers testified that the quantity of cocaine indicated that it was not for personal use and would likely be sold. No smoking devices or other drug paraphernalia were found on Payne or in the car.

1. Payne challenges the sufficiency of the evidence, pointing out inconsistencies in the evidence, including the testimony of the female passenger, who stated that Payne did not have the cocaine, but that the driver had the drugs earlier that day. She testified that when the police flashed their blue lights, the driver tossed the bag containing the drugs to the front passenger side and it landed “beside the door, the passenger side.” After she and Payne exited the car, she “heard something hit.” Payne exclaimed, “That ain’t mine,” urging the police to preserve the bag properly for fingerprinting. She testified that Payne had known nothing about the drugs and could not have seen the driver toss them.

On appeal, we view the evidence in a light most favorable to the verdict, and an appellant no longer enjoys a presumption of innocence. Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997). This court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Patterson, supra, 225 Ga. App. at 515. Conflicts in the evidence are for the jury to resolve. Id.

Payne’s contention that his conviction was based solely on circumstantial evidence is contrary to the record before us. The State presented both circumstantial and direct evidence, and the trial court charged the jury regarding its consideration of such evidence. See also Division 3 (b), infra. The jury’s verdict is supported by the evidence in that a rational trier of fact could have found Payne guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Jackson, supra.

2. Payne contends that the trial court erred in admitting during cross-examination his prior conviction based on a nolo contendere plea to the offense of giving false information to an officer. He argues *160 that admitting this evidence violated OCGA § 24-9-20 (b), which provides that if a defendant in a criminal case testifies in his own behalf, he may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions is admissible unless and until the defendant first puts his character in issue. But even in situations where the defendant has not placed his character in issue within the meaning of OCGA § 24-9-20 (b), when a defendant testifies and falsely denies past criminal conduct or misdeeds, the State may introduce evidence that proves the falsity of his testimony, even when it reflects negatively on the defendant’s character. Jones v. State, 257 Ga. 753, 759 (1) (a) (363 SE2d 529) (1988).

Payne took the stand in his defense and, on direct examination, denied knowing about the drugs and described his previous employment as a corrections officer. He stated, “I have most respect for police officers. Used to be one, basically.” Payne’s prior conviction for giving false information to an officer was properly admitted as impeachment evidence to his testimony on direct examination that he respects police officers. See Lucas v. State, 234 Ga. App. 534, 538 (3) (507 SE2d 253) (1998) (defendant opened the door to evidence of prior DUI convictions by testifying that he “did not ‘care to break the law’ and did not want ‘to endanger’ anyone”); Butts v. State, 193 Ga. App. 824, 825 (2) (389 SE2d 395) (1989) (evidence of marijuana found in defendant’s car refitted and impeached his assertions that he was the type of person who obeyed the law). “Appellant, having chosen a certain trial strategy and having engaged in certain calculated trial tactics in support thereof during direct examination, cannot complain when the State exercises its statutory right to a thorough and sifting cross-examination.” Butts, supra, 193 Ga. App. at 826.

3. Payne challenges several jury charges by the trial court.

(a) First, Payne contends that the trial court erred by failing to give the jury charge that, “If a person is driving an automobile or has an automobile in his or her possession, all in that automobile is presumed to be the driver’s and in the driver’s possession.” Instead, the trial judge charged:

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Bluebook (online)
545 S.E.2d 336, 248 Ga. App. 158, 2001 Fulton County D. Rep. 668, 2001 Ga. App. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/payne-v-state-gactapp-2001.