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Smith v. State

Court of Appeals of Georgia

March 19, 2015

SMITH
v.
THE STATE

Drug violation. Hall Superior Court. Before Judge Deal.

Cynthia W. Harrison, for appellant.

Lee Darragh, District Attorney, Shiv Sachdeva, Assistant District Attorney, for appellee.

OPINION

Page 9

Doyle, Presiding Judge.

Following his conviction for possession of methamphetamine[1] and marijuana,[2] Richard Lamar Smith appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to support the verdict, and (2) the trial court erred by allowing the State to impeach him with evidence of a prior felony without the proper legal showing. Discerning no error, we affirm.

" On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence." [3] So viewed, the evidence shows that a team of police officers arrived at a mobile home complex to locate a woman who had given a false name in a drug investigation the prior evening. The officers arrived at the address and encountered Levy Lavengood standing in the driveway. The officers explained [331 Ga.App. 297] to Lavengood why they were there, and Lavengood gave them permission to search his residence for the woman and for illegal drugs.

The team entered the mobile home, and an officer entered the first bedroom where he encountered Smith sitting clothed on a corner of the bed and a young woman awake in the bed. The officer noticed that Smith's legs were spread apart, and the bed skirt had been pushed up and tucked in between the mattress and box spring directly underneath Smith. The officer ascertained that the woman was clothed and asked the two to leave the room, which they did. The officer then lifted up the mattress " to make sure

Page 10

there wasn't a loaded weapon in between there that might have been shoved by Mr. Smith." Upon doing so, the officer discovered a small clear plastic bag containing suspected marijuana and a breath mint tin containing suspected methamphetamine. Smith was placed under arrest and searched, revealing a set of digital scales in his pocket. The suspected contraband was later tested and confirmed to be marijuana and methamphetamine. There was " possible residue" of drugs on the scales, but that substance was not tested.

Smith was indicted for possession of methamphetamine (felony) and possession of marijuana (misdemeanor). Following a jury trial, he was convicted, and his motion for new trial was denied. Smith now appeals.

1. Smith contends that the evidence was insufficient to support the guilty verdict. Specifically, he argues that there is no evidence that he actually possessed the drugs, and the State failed to show that he constructively possessed the drugs. We disagree.

This Court determines the issue of evidentiary sufficiency under the standard of review set out in Jackson v. Virginia.[[4]] The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.
A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of [331 Ga.App. 298] it ... . A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where, as here, the contraband is hidden. And 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. [Finally, w]hen the State's constructive possession case is based wholly 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.[5]

Here, there is uncontroverted evidence that the contraband was found in Smith's immediate presence, stuffed under the mattress directly underneath where he sat, with the bed skirt messily pushed up as though it was done in a hurry. Upon being handcuffed, Smith spontaneously denied that he had any drugs on his person despite not yet being searched. Smith testified at trial that the woman in the bed was pregnant at the time, and she did not use drugs. Further, Smith possessed a pocket-sized set of digital scales with something that looked like drug residue on them at the time of his arrest. Although Smith testified that the digital scales were for the purpose of weighing scrap jewelry he occasionally sold to metal dealers, it was for the jury to decide whether this was a reasonable hypothesis of innocence.[6] " A jury could infer that [Smith] was lying and that his lies evidenced guilty knowledge. While the evidence here is circumstantial, it need not exclude every conceivable inference or hypothesis, but merely those that are reasonable." [7] Based on the record before us -- including Smith's statements,

Page 11

the location of the drugs and their apparently hurried concealment, and Smith's possession of the digital scales -- we conclude that the evidence sufficed to support the jury's finding that Smith possessed the drugs found under the mattress.[8]

[331 Ga.App. 299] 2. During trial, before Smith testified, the trial court held a hearing on the admissibility of a prior guilty plea to burglary in March 2004, which was fewer than ten years prior to the October 2013 trial.[9] The trial court admitted evidence of the guilty plea for general impeachment purposes, and Smith now argues that the trial court erred by failing to make the required findings.

OCGA § 24-6-609 (a) (1)[10] provides, in relevant part:

For the purpose of attacking the character for truthfulness of a witness ... evidence that an accused [person who testifies] has been convicted of [a felony] shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the accused[.]

As this Court has noted:

The introduction of evidence of a prior felony conviction is intended to afford the jury a basis to infer that the witness'[s] character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness.[11]

Smith relies on cases holding that " a trial court must make an on-the-record finding that the probative value of admitting a prior conviction ... outweighs its prejudicial effect." [12]

This analysis includes [but is not limited to] the following factors: (1) the nature, i.e., impeachment value of the crime; (2) the time of the conviction and the defendant's subsequent [331 Ga.App. 300] history; (3) the similarity between the past crime and the charged crime, so that admitting the prior conviction does not create an unacceptable risk that the jury will consider it as evidence that the defendant committed the crime for which he is on trial; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue.[13]

These factors were adopted under Georgia's old Evidence Code from federal cases applying Federal Rule 609 (b) which applies to convictions more than ten years old.[14] Pretermitting their applicability in this case, where Georgia's new rules of evidence apply and the conviction was not more than ten years old, we note that a trial court was not required to " list the specific factors it considered in ruling" in the context of a prior conviction that is fewer than ten years old.[15]

Page 12

Nevertheless, the trial court did list the factors it considered, notwithstanding Smith's argument to the contrary. The record shows that the court explicitly considered the fact that Smith's credibility would be a " substantial factor" in the case; the court considered the probative value of the conviction, concluding that " a prior felony conviction affects someone's credibility as a general matter" ; the court considered the nature of the crime (burglary) as making it less likely to serve as improper propensity evidence of a drug possession offense; and the trial court considered the age of the prior conviction as also mitigating an improper propensity inference.

In light of the trial court's transparent and reasoned analysis, Smith's argument that the court failed to engage in an appropriate balancing is without merit. We discern no abuse of discretion in the admission of Smith's prior felony conviction for the purpose of generally attacking Smith's credibility.[16]

Judgment affirmed.

Miller and Dillard, JJ., concur.


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