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McCrory v. State

Court of Appeals of Georgia, Third Division

March 16, 2017

McCRORY
v.
THE STATE.

          MILLER, P. J., MCFADDEN, P. J., and MCMILLIAN, J.

          Miller, Presiding Judge.

         Following a jury trial, Paul McCrory was convicted of possession of cocaine (OCGA § 16-13-30 (a)) as a lesser included offense to the charge of possession of cocaine with intent to distribute, and acquitted of the charge of driving without a license (OCGA § 40-5-20 (a)).[1] McCrory appeals from the denial of his motion for new trial, contending that his trial counsel was constitutionally deficient for failing to properly preserve McCrory's challenge to the admissibility of similar transaction evidence. McCrory also contends that the evidence was insufficient to sustain his conviction for cocaine possession. After review, we conclude that the trial court's order denying McCrory's motion to suppress was legally insufficient to permit admission of the similar transaction evidence. We therefore vacate the trial court's judgment and remand the case for proceedings consistent with this opinion.

         "On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict." (Citation omitted.) Scarborough v. State, 317 Ga.App. 523 (731 S.E.2d 396) (2012). The procedural history of this case is somewhat complex. The appeal before us arises from McCrory's arrest on May 25, 2009. At trial, the State introduced similar transaction evidence of a search ten days earlier, on May 15, that resulted in McCrory's arrest on separate drug charges. McCrory was convicted and sentenced in the instant case, and he subsequently pled guilty to the charges stemming from the May 15 search and arrest.

         (a) The Instant Case

         On May 25, 2009, two officers were dispatched to the intersection of Donald Lee Hollowell and Harwell Road in Fulton County in response to a 911 call. When the officers arrived, they witnessed a white Buick ("the Vehicle") parked diagonally in the middle of Harwell Road with the driver's door open. McCrory was standing approximately five feet from the Vehicle with a baseball bat in his hand. The other man involved in the fight, later identified as Bubba, was standing further down the road, about 100 feet away from the Vehicle. The responding officers never witnessed anyone inside the Vehicle.

         McCrory was handcuffed and placed in the back seat of the officers' patrol car. The officers then approached the Vehicle, where they saw a marijuana joint in the ashtray, and some plastic bags often used to package drugs in the passenger-side visor. After searching the center console of the Vehicle, the officers recovered 65 individual bags of crack-cocaine and arrested McCrory. No drugs or drug paraphernalia were found on McCrory's person.

         McCrory told the officers that the Vehicle belonged to his girlfriend, and a check of the Vehicle's license plate showed that it was registered to V. S. The officers impounded the Vehicle because it was obstructing traffic, and they arrested McCrory.

         (b) The Similar Transaction

         Ten days prior to his arrest for the charges in this case, McCrory had a separate encounter with police which also resulted in his arrest for possession of cocaine (the "Similar Transaction"). On that occasion, an Atlanta police officer observed a group of men, including McCrory and Bubba, standing outside of a convenience store located on Donald Lee Hollowell Parkway in Fulton County. An unidentified man approached the officer and informed him that McCrory was selling drugs from the Vehicle, which was parked in the convenience store parking lot.

         The officer approached McCrory while he was standing next to the Vehicle, and subsequently arrested him for providing a fake name and date of birth. The officer handcuffed McCrory and placed him in the back seat of the patrol car. The officer then ran a tag search on the Vehicle and learned that it was registered to V. S..

         While McCrory was handcuffed and under arrest in the backseat of the patrol car, and without reading McCrory his Miranda[2] rights, the officer asked McCrory for consent to search the Vehicle. McCrory consented, but said that anything found in the Vehicle did not belong to him. Upon searching the Vehicle, the officer found large quantities of crack-cocaine in the center console. The officer then read McCrory his Miranda rights and had the Vehicle impounded.

         (c) Similar Transaction Hearing

         Prior to McCrory's trial in this case, the State properly filed notice of its intent to present evidence of the Similar Transaction which outlined the purposes for which the State intended to use that evidence. McCrory moved to suppress the Similar Transaction evidence on the basis that it resulted from an unconstitutional search. Following a hearing, [3] the trial court denied McCrory's motion, finding that the ...


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