MILLER, P. J., MCFADDEN, P. J., and MCMILLIAN, J.
Miller, Presiding Judge.
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)). 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.
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.
The Instant Case
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.
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.
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
The Similar Transaction
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.
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..
McCrory was handcuffed and under arrest in the backseat of
the patrol car, and without reading McCrory his
Miranda 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.
Similar Transaction Hearing
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,
trial court denied McCrory's motion, finding that the