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Calcaterra v. State

Court of Appeals of Georgia, Second Division

June 7, 2017


          DOYLE, C. J., MILLER, P. J., and REESE, J.

          Reese, Judge.

         A Gordon County jury found Mark Calcaterra guilty beyond a reasonable doubt of trafficking in cocaine, OCGA § 16-13-31 (a) (1) (C), and possession of marijuana with intent to distribute, OCGA § 16-13-30 (j) (1). He appeals from the trial court's denial of his motion for new trial, contending that there was insufficient evidence to support his conviction. For the reasons set forth, infra, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [1] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.[2]

         Viewed in this light, the evidence showed that, at approximately 9:40 p.m. on March 27, 2012, the Appellant was a passenger in a car driven by his wife, Nakenya Calcaterra (hereinafter, "Ms. Calcaterra"), as they traveled northbound on I-75 in Gordon County. A law enforcement officer conducted a traffic stop, [3] approached the passenger side of the car, and obtained Ms. Calcaterra's Illinois driver's license. When the officer asked Ms. Calcaterra if she owned the vehicle, she first said that it belonged to her brother-in-law. When the officer asked her for the registration, however, she backtracked and said that her brother-in-law had rented the car and loaned it to her. The rental agreement showed that a person named "Gary Owens" had rented the car in Ohio.[4] According to the officer, while he was speaking with Ms. Calcaterra, he observed that the Appellant was looking straight ahead, his hands were "clench[ing]" a cell phone, and he did not participate in the conversation.

         The officer asked Ms. Calcaterra to step out of the vehicle so he could determine if she was impaired, and she complied. The officer asked her why she had traveled to Georgia, and Ms. Calcaterra gave conflicting answers about when she had driven down and whom she had been visiting. She also told the officer that her passenger was a friend who had traveled with her on the trip, but then immediately told him, instead, that her friend had been staying in Georgia before she came down and that he was now riding back to Ohio with her.

         The officer walked to the passenger-side window and asked the Appellant if he had any identification. The Appellant responded that he did not, but said that his name was Mark Calcaterra. When asked how he knew Ms. Calcaterra, the Appellant said that she was his wife and that they had been married since 2005. The Appellant expressed surprise when the officer told him that Ms. Calcaterra had said he was just a friend. When asked why he was in Georgia, the Appellant told the officer that he came down to visit family members.

         Based upon the couple's inconsistent responses, the officer suspected that there might be contraband in the vehicle, and he obtained the consent of both Ms. Calcaterra and the Appellant to search the car. When the officer started looking around the passenger compartment of the car, he smelled an odor that he recognized as the smell of raw marijuana. While searching the trunk, the officer observed two small, plastic grocery bags - one containing men's clothing and the other containing women's clothing. The officer also discovered over 554 grams of cocaine of at least 60 percent purity and over 445 grams of marijuana hidden in the trunk's side panels.[5]

         The officer arrested the Appellant and Ms. Calcaterra, and the State jointly indicted them, charging them with trafficking in cocaine and possession of marijuana with intent to distribute. In addition to the evidence concerning the traffic stop, as recounted above, the following evidence was presented during their joint trial.

         The Appellant and his wife had seven children between the ages of five months and eighteen years, as well as two grandchildren. In March 2012, the Appellant was physically disabled and was not employed, while Ms. Calcaterra worked delivering pizza. The couple was experiencing financial troubles and were behind in paying their rent, car payment, and other bills to the extent that they were feeling "desperate." According to Ms. Calcaterra, the financial problems were causing her and the Appellant to fight a lot, so they decided to take a "spur-of-the-moment" trip "to get away for a little while" and spend time together.

         The couple borrowed a car from the Appellant's brother, left their children and grandchildren in his care, and started driving to Georgia just after midnight on March 27, 2012. They drove to the home of the Appellant's cousin in Atlanta, arriving at about 10:00 a.m. The couple took a nap, and then the Appellant watched television with his cousin for the rest of the day. Ms. Calcaterra, however, left for a few hours before returning to the cousin's house that evening. She picked up the Appellant, and they started driving back to Ohio. As they were leaving, the Appellant told his cousin that he had to "go handle some business." They then traveled for less than an hour before the traffic stop took place. In addition, Ms. Calcaterra admitted that, despite their serious financial troubles, they spent at least $140 on gas and food between leaving Ohio around midnight and the traffic stop later that evening, for the sole purpose of spending a few hours with family members.

         After considering the evidence, the jury found both the Appellant and Ms. Calcaterra guilty of trafficking in cocaine and possession of marijuana with intent to distribute.[6] The trial court denied the Appellant's motion for new trial, and this appeal followed.

         The Appellant argues that the evidence showed that he was merely present in the car and did not know that the drugs were hidden in the trunk.[7]

A participant to a crime may be convicted although he is not the person who directly commits the crime. A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, ...

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