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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 ...

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