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Childs v. State

Court of Appeals of Georgia

February 18, 2015

CHILDS
v.
THE STATE

Drug violation. Monroe Superior Court. Before Judge Fears.

Judgment reversed.

S. Cindy Wang, for appellant.

Richard G. Milam, District Attorney, Paul E. Hemmann, Assistant District Attorney, for appellee.

McMILLIAN, Judge. Phipps, C. J., and Ellington, P. J., concur.

OPINION

McMillian, Judge.

Herbert Lee Childs, Jr., was tried before a jury and convicted of trafficking in cocaine in violation of OCGA § 16-13-31 (a) (1) and several motor vehicle-related offenses. On appeal, Childs contends tat the evidence was insufficient to support the trafficking conviction because the State failed to prove that he had knowledge of the weight of the cocaine. We agree and reverse Childs' conviction as to trafficking in cocaine.

[330 Ga.App. 728] Viewed in the light most favorable to the jury's verdict,[1] the record shows that on January 5, 2012, Corporal Robert Duncan of the Monroe County Sheriff's Office was monitoring southbound traffic on I-75 in Monroe County, Georgia. At approximately 3:00 p.m., Duncan observed a vehicle with extremely dark tinted windows and a tinted tag cover. He stopped the vehicle, which was driven by Childs. Duncan approached the passenger side of the vehicle and smelled the odor of raw marijuana coming from within the vehicle as soon as the passenger, Tamika Freeman,[2] rolled down the window. Childs told Duncan that he was driving his uncle's vehicle and eventually admitted that there was marijuana in the car but said there was just enough for a joint. While Duncan waited for backup,[3] he learned from dispatch that

Page 148

Childs' driver's license was suspended and placed Childs under arrest. Duncan asked Freeman to get out of the car and noticed that she was chewing what he believed to be marijuana. Childs told Duncan that Freeman had the marijuana on her and told Freeman to " give him the weed." Duncan then placed Freeman in custody and began a probable cause search of the vehicle.

At trial, Duncan testified that, within seconds, he located a brown paper bag inside the center console of the car between the driver seat and the front passenger seat. Inside the brown paper bag were two clear plastic bags. One appeared to contain powdered cocaine and the other held what appeared to be crack cocaine. Duncan testified that, based on his experience, the bags contained a large amount of cocaine that was consistent with distribution rather than personal use. GBI forensic chemist James Wadsworth testified that one bag contained a white chunky substance that appeared to be crack cocaine and weighed 27.32 grams. The other bag contained 35.13 grams of powdered cocaine that he tested and found to be 45.2 percent pure. Wadsworth also testified that although he performs 90 to 100 tests on suspected cocaine each month, he only sees cocaine that falls within the statutory trafficking weight approximately once per month.

[330 Ga.App. 729] Freeman, who was tried along with Childs,[4] testified that she was just riding with Childs that day to visit her mother-in-law near Greenbrier Mall and that she did not know there was any cocaine in the car. She and Childs left Macon around noon, and when they arrived at the mall, she immediately left to spend time with her mother-in-law at a nearby nail salon and restaurant. She did not know what Childs did during this time, but only 30 to 40 minutes later, she called Childs, who then returned to pick her up. Duncan pulled their vehicle over on their way back to Macon when it was almost time for her to pick her kids up from school. According to Freeman, Duncan located the bag of cocaine inside a gray hat that belonged to Childs. Freeman testified that Childs was unemployed at that time but always had money.

1. Childs asserts that the evidence was insufficient to support his conviction for trafficking in cocaine because the State failed to prove that he knowingly possessed a trafficking amount of cocaine. In addressing the sufficiency of the evidence, this Court does not weigh the evidence or determine witness credibility but only considers whether " a rational trier of fact could have found the defendant guilty of the charged offense[ ] beyond a reasonable doubt." (Citation and punctuation omitted.) Freeman v. State, 329 Ga.App. 429, 431 (1) (765 S.E.2d 631) (2014). We will uphold a jury's verdict so long as there is " some ...


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