MCFADDEN, P. J., BRANCH and BETHEL, JJ.
Sanchez-Villa appeals from his conviction of one count of
trafficking in cocaine pursuant to OCGA §
16-13-31(a)(1)(C), for which he was sentenced to twenty-five
years imprisonment and ordered to pay a one million dollar
fine. On appeal, he contends that the trial court erred by
permitting the State to introduce evidence from a United
States Drug Enforcement Administration (DEA) investigation of
Sanchez-Villa. The evidence included testimony from a DEA
agent regarding the agency's surveillance of
Sanchez-Villa for over a year prior to his arrest and a
recording of a conversation involving Sanchez-Villa that
occurred almost a month prior to his arrest on the cocaine
trafficking charge. Sanchez-Villa also contends that the
trial court erred by not instructing the jury on an
"equal access" defense and that it erred in
instructing the jury as to conspiracy. While we affirm the
trial court's rulings in regard to jury instructions for
equal access and conspiracy, we find that the trial court
abused its discretion in admitting the evidence of the DEA
investigation as "intrinsic" evidence of the
charged trafficking offense. Because we further find this
error was harmful, we vacate Sanchez-Villa's conviction
and remand this matter for a new trial consistent with this
appeal, the defendant "is no longer presumed innocent
and all of the evidence is to be viewed in the light most
favorable to the jury verdict." Batten v.
State, 295 Ga. 442, 443 (1) (761 S.E.2d 70) (2014)
viewed, on April 8, 2014, the DeKalb County High Intensity
Drug Trafficking Area Task Force (the "Task Force")
received a tip from a confidential informant (CI) indicating
that a drug transaction would take place that evening at a
particular gas station around 10:00 pm. The CI indicated that
a suspect (who he identified as "Cuarenta") would
arrive in a gray Honda Accord and that he would meet someone
driving a black Lincoln.
matching that description arrived after Task Force officers
began monitoring the area, and it was joined minutes later by
a black Lincoln. The driver of the Lincoln then exited the
vehicle, approached the Honda, and began speaking through its
driver's side window.
returned soon after to the Lincoln, and the Lincoln drove
off. The Honda followed the Lincoln, and Task Force officers
followed both vehicles until they parked in front of a
restaurant close by. An officer observed the driver of the
Lincoln remove a "weighted down" duffel bag from
the Lincoln's trunk and place it in the back seat of the
Honda. The man then returned to the Lincoln and drove off.
minutes later, the Honda drove away. The Task Force officers
began following the Honda. They then instructed an officer
from the DeKalb County Police Department (who was not part of
the Task Force) to look for the Honda, giving a description.
Soon after, the DeKalb police officer encountered the Honda
speeding and pulled it over.
backup arrived, the officer approached the driver, later
identified as Sanchez-Villa. He saw that the Honda was
equipped with special hand controls and noted that
Sanchez-Villa appeared to be disabled.
the stop, the officers noted that Sanchez-Villa had nothing
in his hands, but when one of the officers looked into the
backseat, he saw a large duct-taped block on the floor
between the passenger's feet. The officer instructed the
passenger and Sanchez-Villa to exit the vehicle. The officer
picked up the block and asked Sanchez-Villa and the passenger
whether it belonged to them. The passenger shook his head
"no, " and Sanchez-Villa stated, "No, I
don't know what that is." The officer opened the
block, and its contents field-tested positive for cocaine.
Sanchez-Villa and the passenger were then arrested.
to the arrest, Task Force officers searched the vehicle and
located hidden compartments adjacent to the back seats. They
located roughly eight additional kilograms of cocaine in that
space; no cocaine was located in the front seat area of the
vehicle. Officers also recovered an empty black duffel bag
from the back seat, as well as two wallets containing cash.
They later determined that the Honda was not registered to
was indicted for trafficking in cocaine, and the indictment
alleged that Sanchez-Villa and the passenger, individually
and as parties concerned in the commission of a crime, were
guilty of possessing the requisite amounts of cocaine.
Sanchez-Villa entered a not-guilty plea.
to trial, the State indicated to Sanchez-Villa, through
supplemental discovery, that it had evidence of a DEA
investigation of Sanchez-Villa that had been ongoing for over
a year preceding his arrest. That evidence included a secret
DEA recording from March 11, 2014, in which an individual the
State claimed to be Sanchez-Villa discussed the sale of
significant quantities of cocaine and marijuana with a CI who
was cooperating with the DEA.
State also brought forth testimony through a DEA
agent detailing the agency's investigation
of Sanchez-Villa, including the agent's knowledge that
Sanchez-Villa was a cocaine supplier and his characterization
of Sanchez-Villa as a "heavy distributor" of drugs
in the metro Atlanta area. The DEA agent also discussed
various forms of lingo for cocaine used by Sanchez-Villa in
the recorded conversation, which the agent indicated were in
common use in conversations regarding cocaine trafficking.
The DEA agent stated that, at various times, Sanchez-Villa
had been observed driving the same Honda that he was driving
at the time of the arrest. The DEA agent also testified that
he was aware the Honda had secret compartments. According to
his testimony, the agent knew from his investigation that
Sanchez-Villa was disabled and that he went by the alias
Task Force did not know Sanchez-Villa was under DEA
investigation at the time of arrest. Likewise, the DEA was
not aware of the Task Force's investigation of
Sanchez-Villa until after he was arrested and charged.
trial, Sanchez-Villa conceded that cocaine was found in the
vehicle, but he argued that he had no knowledge of the
cocaine or the hidden compartments in the vehicle and was
merely present as a driver. In light of this defense, the
State initially argued in pre-trial proceedings that evidence
from the DEA investigation was admissible to establish
Sanchez-Villa's knowledge of drugs and drug trafficking.
The State later clarified that it sought to admit the
recording and the agent's testimony because such evidence
was "intrinsic" to the events surrounding the
trafficking charge. As discussed more fully in Division 1,
infra, the trial court admitted the testimony and
the recordings on this basis over various objections by
Sanchez-Villa, noting that the cocaine discussed in the
secret recording "could very well be the same
cocaine" seized from the Honda.
the State's request, the jury was instructed regarding
the principles of joint, actual, and constructive possession
of narcotics, but the State did not request an instruction as
to the presumption of possession. However, because the State
presented evidence and emphasized in its opening and closing
statements that Sanchez-Villa was, as the driver of the
Honda, in control of the cocaine, Sanchez-Villa argued that
the jury should be instructed as to the "equal
access" defense even though the jury had not been
instructed as to the presumption of possession that such
defense would rebut. The trial court denied this request. The
State also requested that the jury be instructed as to
conspiracy, arguing that the evidence presented at trial
supported this charge even though it was not part of the
indictment. This request was granted over Sanchez-Villa's
objection. Following his conviction, Sanchez-Villa brought
this direct appeal.
Sanchez-Villa first argues that the trial court's
decision to admit evidence from the DEA investigation,
including the recorded conversation, violated Rule 404(b), as