Reid v. State

442 S.E.2d 852, 212 Ga. App. 787, 94 Fulton County D. Rep. 1273, 1994 Ga. App. LEXIS 397

• Court: Court of Appeals of Georgia
• Decided: March 16, 1994
• Docket: A93A2297
• Status: Published

Opinions

Smith, Judge.

Charles Reginald Reid was convicted by a jury of possession of cocaine with intent to distribute. OCGA § 16-13-30 (b). His motion for new trial was denied. On appeal, he contends that the evidence was insufficient to support his conviction. We agree and reverse.

The evidence presented at trial showed that Investigator Keith Corley of the Monroe County Sheriffs Department was told by a reliable confidential informant that a young black male from Atlanta, who was a passenger in a car, was selling crack cocaine. The informant described the car, identified the driver, described the passenger’s clothing, and told Corley where the car was headed. Corley immediately located the car and followed it into the apartment complex the informant had named as its destination, pulling in behind it as the car was parked. He then had the two occupants exit the car and searched them, finding no drugs. The passenger was identified as Reid, and the driver as Jerry Buckner. Although the dissent only makes bare mention of it in a footnote, the evidence was in conflict as to whether Buckner, as well as Reid, exited the car on the passenger side. Reid testified that the driver’s side door had jammed and that Buckner had to cross over and exit on the passenger side. Corley testified to the contrary, that he did not recall that the driver’s door had jammed and that he remembered that Buckner got out on the driver’s side. Corley then searched the car with Reid’s consent and found a plastic ziplock bag containing what appeared to him to be crack cocaine.. He found the bag on the floorboard on the passenger side of the car between the place where the bench seat was bolted to the car’s frame and the passenger door, approximately six inches from the door. Chain of custody was established by the State, and a forensic chemist from the State Crime Laboratory who had analyzed the bag’s contents testified the bag contained 1.7 grams of crack cocaine. The State then rested.

Reid testified in his own behalf, denying possession or knowledge of the drugs in the car. He testified that he lived in Atlanta and arrived in Monroe County that morning. He and a friend walked to a local park, where they met Buckner. Buckner gave him a ride to a fast-food restaurant and bought him lunch, and it was Buckner’s idea to drive then to the apartment complex “to see a girl.” He testified that Corley asked him if he could search the car “like it was my car. So I said go right ahead.” He testified he told Corley the bag with cocaine was not his and asked Corley to fingerprint the bag to show he had not touched it, but it was not fingerprinted in his presence. Corley testified he asked the crime lab to fingerprint the bag, but the lab informed him that is no longer done in drug cases. The forensic chemist confirmed this testimony.

In prosecuting Reid, the State relied on circumstantial evidence to show constructive rather than actual possession, since no evidence showed Reid in actual possession of any drugs.¹ This is, of course, permissible, but “ ‘[a] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.’ [Cit.]” Whipple v. State, 207 Ga. App. 131, 132 (1) (427 SE2d 101) (1993). Nothing more was shown here. The informant did not testify. Notwithstanding Reid’s failure to object, Corley’s testimony regarding the substance of the information he received from the informant was inadmissible hearsay without probative value, and it will not be considered in reviewing the issue of the sufficiency of the evidence. Wood v. State, 204 Ga. App. 467, 468-469 (1) (419 SE2d 534) (1992). Unlike Whipple, no presumption of possession arose here, because it is undisputed that Reid did not own or control the car.

Here, as in Whipple, supra, “[w]e recognize that the factfinder is usually in the best position to determine questions of reasonableness when evidence of guilt is circumstantial. [Cits.]” Id. Nevertheless, since no presumption of possession arose here, we find no evidentiary basis upon which the jury could have concluded beyond a reasonable doubt that Reid was in knowing possession of the cocaine. See Llaguno v. State, 197 Ga. App. 789, 791 (1) (399 SE2d 564) (1990). The evidence showed only that a certain amount of crack cocaine was found on the floorboard between the seat and the door on the passenger side of the car near where Reid had been sitting and that Reid denied he had seen Buckner with any drugs that day. Of course, contrary to the dissent’s assertion, the fact that Reid never saw Buckner with drugs does not exclude the hypothesis that the drugs belonged to Buckner; it is inconsistent only with a theory that relies upon Reid having seen Buckner with drugs, and it therefore excludes only such a theory. Moreover, a defendant does “not have the obligation to offer a theory consistent with innocence. Rather, the [S]tate had the burden of proving guilt. In a case such as this one, involving wholly circumstantial evidence, the law demands that ‘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.’ [Cit.]” Howard v. State, 148 Ga. App. 598, 600 (5) (251 SE2d 829) (1979). The circumstantial evidence presented here was insufficient to exclude every other reasonable hypothesis save that of Reid’s guilt, and his conviction must be reversed. See Whipple, supra; Byers v. State, 204 Ga. App. 552, 556 (4) (420 SE2d 23) (1992).

Judgment reverséd.

Pope, C. J., Birdsong, P. J., Cooper and Blackburn, JJ., concur. McMurray, P. J., Beasley, P. J., Andrews and Johnson, JJ., dissent.

1 The dissent relies on Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989); Shropshire v. State, 201 Ga. App. 421 (411 SE2d 339) (1991); and Chitwood v. State, 166 Ga. App. 62 (1) (303 SE2d 307) (1983), to show that passengers in automobiles were found to be in possession of drugs in circumstances where the contraband was less accessible to them. However, in those cases the drivers were charged as well, and the passengers were found to be in joint possession of the drugs, along with the drivers. That is not the case here, where the driver was not charged. Here, the State had the burden of showing that Reid was in sole constructive possession of the drugs.