Washington v. State

560 S.E.2d 80, 253 Ga. App. 611, 2002 Fulton County D. Rep. 544, 2002 Ga. App. LEXIS 164
CourtCourt of Appeals of Georgia
DecidedFebruary 7, 2002
DocketA01A2331
StatusPublished
Cited by9 cases

This text of 560 S.E.2d 80 (Washington 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
Washington v. State, 560 S.E.2d 80, 253 Ga. App. 611, 2002 Fulton County D. Rep. 544, 2002 Ga. App. LEXIS 164 (Ga. Ct. App. 2002).

Opinion

560 S.E.2d 80 (2002)
253 Ga. App. 611

WASHINGTON
v.
The STATE.

No. A01A2331.

Court of Appeals of Georgia.

February 7, 2002.

*81 Diane M. McLeod, for appellant.

Spencer Lawton, Jr., Dist. Atty., Patricia P. Stone, Asst. Dist. Atty., for appellee.

SMITH, Presiding Judge.

Kevin Derrick Washington was convicted by a jury of possession of a controlled substance with intent to distribute and was sentenced as a recidivist. His motion for new trial was denied. Washington appeals, raising issues concerning sufficiency of the evidence, admission into evidence of similar transactions and the trial court's accompanying instructions, effectiveness of counsel, and other evidentiary matters. We find no reversible error with respect to these contentions, and we affirm.

When construed in favor of the verdict, the evidence presented at trial shows that while on patrol at approximately 4:30 a.m. on November 26, 1997, Officer Robert Gavin of the Savannah Police Department observed two vehicles parked on either side of the street. Neither car was running, and the cars' lights were not on. He observed a woman, later identified as Debra Smith, walking back and forth between them, and he saw her get into the rear of the car in which Washington was a front seat passenger. Smith stayed inside the vehicle "for a little bit of time" and then *82 exited it while carrying two bottles of beer, at least one of which was open. Gavin approached her in his car at that time. According to Gavin, he asked her "what was going on tonight," and she told him that she was getting a ride with her brother, the driver of the car in which Washington was a passenger. Gavin referred to this driver as "John Doe" because he was unable to determine his true identity. But both Washington and John Doe told Gavin that they were not related to Smith and that they "knew her from being around."

Backup law enforcement arrived, and another officer patted Smith down and discovered a knife and a rock of crack cocaine inside her sock, as well as two crack pipes on her person. Meanwhile, Gavin obtained John Doe's driver's license. He observed that John Doe did not fit the descriptive information or the photograph on the license. On questioning by Gavin, John Doe could not remember the information contained on the license. Officers "tried for several minutes" to learn his identity, and he gave them "several different names." He was arrested for giving false information and obstruction.

Before Gavin "went through the process with Mr. Doe, asking him who he was," he walked to the passenger side of the vehicle. Although he wanted Washington to roll down his window, Washington opened the door and began to step out. As Washington did so, Gavin looked down and checked "the whole area around the feet, around his hands." He saw nothing on the seat near Washington or along the door, the doorjamb, or along the well "where your feet would be." Gavin told him to stay inside the vehicle, and Washington complied.

Gavin then became involved with John Doe's arrest. After John Doe was placed in custody, Gavin returned to the passenger side of the vehicle. As he was walking toward the vehicle, he saw Washington "moving around inside the car," and Washington seemed to be "digging his hands" into his pockets. "He was doing a lot of moving inside the car when he was in there by himself." Gavin testified that he could see Washington's arms and elbows "moving out, his jacket moving, his hands going.... [H]is hands were moving inside of his jacket, because his jacket was also moving.... He was looking down. He was moving his hands around." He also stated that Washington's hands were "down in front of him." Gavin became "a little worried about what he was digging for or what he was looking for" and asked Washington to exit the car and place his hands on top.

As soon as Washington opened the door, Gavin saw a plastic baggie on the center of the doorjamb that was not there the first time he spoke with Washington, when Washington attempted to step out of the car. The baggie contained approximately ten rocks of a substance that appeared to be crack cocaine. Gavin testified that from his experience, the number of rocks seized showed that the substance, identified as cocaine at trial by a forensic chemist, was intended for distribution rather than personal use.

Smith was arrested and pled guilty to possession of a controlled substance and carrying a concealed weapon. She testified against Washington, stating that she purchased a "dime" or $10 rock of crack cocaine from him. Smith unequivocally identified Washington as the seller, stating that he was the person from whom she usually bought her drugs and that she usually located him in the area of the arrest. Washington denied possession of the cocaine, testifying that the driver of the car, whom he identified only as "Terry," was inside the car when Gavin first talked with Washington. According to Washington, as Gavin walked from the passenger side of the car toward the driver's side, "Terry" threw something, which hit his window and fell to the floor.

1. Washington argues that the circumstantial evidence in this case was not sufficient to convict him, contending that Gavin did not testify that he found any money on his person. But lack of evidence presented concerning money that may or may not have been discovered does not refute Smith's testimony that she purchased cocaine from Washington. This was direct evidence of Washington's guilt. See generally Moody v. State, 232 Ga.App. 499, 502(1), 502 S.E.2d 323 (1998) (direct evidence of defendant's guilt through co-defendant's testimony that *83 she saw defendant throw cocaine on floor). And this evidence was corroborated by Gavin's testimony concerning Washington's behavior and his discovery of the cocaine only inches away from Washington. Washington also states that he was not the owner of the vehicle in which the cocaine was found. Pointing out that the owner of a vehicle is presumed to have contraband inside the vehicle under his or her control, see Fears v. State, 169 Ga.App. 172, 173, 312 S.E.2d 174 (1983), and arguing that Smith and the driver had equal access to the contraband, Washington maintains that the State proved only his mere presence at the crime scene.

We first note that Washington's reliance on the equal access doctrine is misplaced. We cannot determine who owned the vehicle from the transcript; the record does not show whether the driver, Smith, or Washington owned the vehicle or had exclusive control over it. It follows that we cannot determine the party to whom the presumption discussed in Fears, supra, applies.

The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had recently been used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant's ownership or possession of the vehicle. It is simply a defense available to the accused to whom a presumption of possession flows. Because ... the State did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense.

(Citations and punctuation omitted; emphasis supplied.) Jackson v.

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Bluebook (online)
560 S.E.2d 80, 253 Ga. App. 611, 2002 Fulton County D. Rep. 544, 2002 Ga. App. LEXIS 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-state-gactapp-2002.