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Summerville v. State

Court of Appeals of Georgia

June 26, 2015

SUMMERVILLE
v.
THE STATE

Drug violation. Douglas Superior Court. Before Judge Emerson.

Mark R. Jeffrey, for appellant.

Brian K. Fortner, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

MILLER, Judge. Andrews, P. J., and Branch, J., concur.

OPINION

Page 191

Miller, Judge.

Following a jury trial, Kent Summerville was convicted of marijuana trafficking (OCGA § 16-13-31 (c) (2010)) and driving with a suspended license (OCGA § 40-5-121 (a)). Summerville appeals from the denial of his motion for new trial, contending that the evidence was insufficient to sustain his marijuana trafficking conviction because the statute existing at the time of his offense required the State to prove that he had knowledge the marijuana weighed more than ten pounds and the State failed to prove this element of the offense. Summerville also contends that the State withheld material evidence in violation of Brady v. Maryland, 373 U.S. 83 (83 S.Ct. 1194, 10 L.Ed.2d 215) (1963), and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury's verdict; the defendant no longer enjoys the presumption of innocence; and we do not weigh the evidence or determine witness credibility. The standard of review is whether, based on the evidence of record, a rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt.

(Citations omitted.) Smith v. State, 289 Ga.App. 236, 237 (656 S.E.2d 574) (2008).

So viewed, the evidence shows that on the afternoon of June 30, 2010, Summerville asked two friends, Ashley Brown and Mario Allen, to drive him from Birmingham, Alabama to Atlanta. Brown and Allen agreed, and they picked up Summerville at his apartment at about 7:30 p.m. Summerville drove Brown's vehicle and would not tell her where they were headed.

On the way to Atlanta, the trio smoked marijuana that Summerville provided. Brown also took some Xanax, which caused her to " zone out" and fall asleep for most of the trip.

Page 192

[332 Ga.App. 618] Brown testified that she woke up when Summerville stopped at a gas station. At the gas station, Summerville met an unidentified bald man driving a Chrysler 300. After briefly talking to the bald man, Summerville drove away from the gas station and followed the man to a house. Summerville entered the house with the man, and he returned to the car a few minutes later to grab a bag. Sometime later, Summerville and the bald man exited the house. Summerville then returned to the vehicle and opened and closed the trunk, causing Brown to wake up. Allen was sitting in the back seat at the time playing on his phone. Allen testified that he could smell marijuana after Summerville closed the trunk, but thought little of it because they had previously smoked marijuana in the vehicle. Summerville then began driving back to Birmingham.

At about 1:30 a.m., a police officer stationed along Interstate 20 observed that Summerville was driving slowly and causing several tractor-trailers and a recreational vehicle to back up behind him. Summerville did not yield to allow the larger vehicles to pass, and at one point, he abruptly decelerated, causing a dangerous situation for the vehicles behind him. Summerville then crossed the striped line and moved into the right-hand lane, which was occupied by another vehicle. Observing this behavior, the police officer turned on his patrol lights to initiate a traffic stop. Summerville asked Brown if he should stop or keep driving. ...


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