Drug violation. Spalding Superior Court. Before Judge Sams.
Miller & Key, J. Scott Key, for appellant.
Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.
PHIPPS, Presiding Judge. Doyle, C. J., and Boggs, J., concur.
Phipps, Presiding Judge.
Ricardo Morales was found guilty of trafficking methamphetamine, possession of methamphetamine with intent to distribute, possession of methamphetamine, possession of marijuana with intent to distribute, and possession of marijuana (more than one ounce), in connection with drugs found in a residence he had been visiting. Morales appeals following the denial of his motion for
new trial, contending that the evidence was insufficient to sustain his convictions, and that he received ineffective assistance of counsel. Because the evidence was not sufficient, we reverse the convictions.
1. Morales asserts that the evidence was insufficient because the state failed to prove that he possessed any of the drugs. We agree.
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.
So viewed, the trial evidence showed the following. Law enforcement officers testified that in January 2009, they were conducting a surveillance of two residences on a particular street. James Senft and Cynthia Smith lived in one of the residences (hereafter the Senft residence), and Morales lived in the other residence, which was across the street. After seeing a black truck for which they had been on the lookout arrive at and leave the Senft residence, officers initiated a stop of that vehicle, then searched the driver, M. T. The search revealed methamphetamine, and the driver was arrested.
[332 Ga.App. 795] On February 26, 2009, officers resumed their surveillance and conducted a controlled drug purchase at the Senft residence. One of the officers then applied for and obtained a " no-knock" warrant to search that residence.
Meanwhile, officers who had continued the surveillance saw two men arrive at the Senft residence in separate vehicles; one of the men, Morales, was in a silver or gold sport utility vehicle, and the other man, Senft, was in a white truck. Morales and Senft entered the residence and, from what the officers were able to observe from their vantage point down the street, walked down a hallway toward the rear of the Senft residence. " [A] little while" later, a third man, Jerry Craig Bradshaw, arrived, entered the residence and walked toward the rear of the residence. " [W]ithin a few minutes" -- without knocking or announcing " police" -- officers threw a " flashbang" device into the Senft residence as " a distraction," and entered the front room. The officers detained Senft and Smith, the only (non-law enforcement) individuals in the residence. Morales and Bradshaw had fled through a ...