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Thomas v. State

Court of Appeals of Georgia, First Division

July 10, 2017

THOMAS
v.
THE STATE.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         Star Ashley Thomas appeals her convictions for trafficking in methamphetamine and three misdemeanor drug offenses. She argues that there was insufficient evidence to support her trafficking conviction, that the trial court erred by allowing a forensic chemist from the Georgia Bureau of Investigation ("GBI") to testify about drug identification tests performed by a different chemist, and that her trial counsel rendered ineffective assistance by failing to object to the introduction into evidence of both chemists' crime lab reports. We find no error and affirm.

         Viewed in a light favorable to the jury's verdict, [1] the evidence shows that in January 2014, Thomas's brother overdosed on heroin at their mother's Douglasville home, where Thomas also lived. The first responder at the scene was a police corporal, who found the man's mother and two other women attempting to resuscitate him. Emergency medical services personnel arrived soon after and transported the man to a hospital, accompanied by the mother and one of the other women, a family friend who was visiting from out of town. The man later died.

         The third woman who had been helping him stayed behind at the house, and the corporal interviewed her. The third woman told the corporal that she and the man had used heroin and marijuana earlier, and she gave the corporal a marijuana pipe and the wrapper in which the heroin had been packaged.

         While the corporal was talking to the third woman, Thomas came upstairs from the basement and the corporal noticed her for the first time. The corporal followed Thomas back downstairs to a bedroom she identified as hers. After ascertaining her identity, he brought her upstairs for questioning. Suspecting there were more drugs in the house, the corporal asked Thomas for permission to search, but she said no. He told her to wait in the kitchen while the police applied for a search warrant. At that point, Thomas - whose demeanor had been calm - became "very concerned" and wanted to leave the house.

         The detective assigned to the case obtained a warrant and, with the assistance of another officer, searched Thomas's bedroom. Before the search began, Thomas told the detective that he "might find a little marijuana, but that's all [she had]." On top of the dresser, however, the police found a "white crystal-like substance" - which they suspected was methamphetamine - "sprinkled out" on a plate, along with a rolled up dollar bill.[2] Inside a drawer, the police found a plastic tub containing a large amount of a substance that field-tested positive for methamphetamine. The substance was later taken to the GBI crime lab and was determined to weigh 37.24 grams and to contain methamphetamine. Next to the tub was a bottle of "crystal flake, " a substance commonly used to "cut" methamphetamine. Elsewhere in the room the police found a digital scale, a number of baggies, a glass methamphetamine pipe, two grinders used to pulverize marijuana, several marijuana cigarettes, and several pills of a prescription muscle relaxant, Tizanidine.

         Thomas was arrested and charged with trafficking in methamphetamine and possession of marijuana, Tizanidine, and drug-related objects.[3] At trial, Thomas and her mother testified in Thomas's defense. Thomas conceded that the marijuana and marijuana-related materials found in her bedroom were hers. She maintained, however, that the tub of methamphetamine had been left behind by her former live-in boyfriend, who had told her it contained "some kind of carpet cleaner . . . used as a cut." Thomas stated that her ex-boyfriend also had left behind clothing in the dresser and closet, and her mother likewise testified that his clothing was present in the room.[4] According to Thomas's mother, the visiting family friend had been sleeping in Thomas's bedroom during the week before her son's overdose. Thomas insisted that the suspected methamphetamine found on top of her dresser belonged to the family friend. The detective who searched Thomas's room found no men's clothing there, and no sign that anyone except Thomas was living in the room.

         A jury found Thomas guilty of the charges. She filed a motion for new trial, which the trial court denied, and this appeal followed.

         1. Thomas argues that there was insufficient evidence to support her trafficking conviction because the State failed to show that she constructively possessed the methamphetamine found in her dresser.[5] She contends that her ex-boyfriend and the family friend staying in her bedroom had equal access to the methamphetamine and that the evidence of her possession of it "was based merely on spatial proximity." We conclude that whether Thomas constructively possessed the methamphetamine was a question for the jury.

         A person who knowingly possesses 28 or more grams of methamphetamine commits the offense of trafficking in methamphetamine. OCGA § 16-13-31 (e); see also Navarro v. State, 293 Ga.App. 329, 330-331 (667 S.E.2d 125) (2008). "If the State presents evidence that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband." (Citation and punctuation omitted.) Bailey v. State, 294 Ga.App. 437, 439-440 (1) (669 S.E.2d 453) (2008); see also Swan v. State, 300 Ga.App. 667, 670 (2) (686 S.E.2d 310) (2009); Castillo v. State, 288 Ga.App. 828, 830 (655 S.E.2d 695) (2007). This presumption may be rebutted by evidence that someone other than the defendant had equal access to the specific place where the contraband was found, but whether the defendant presented sufficient evidence to establish equal access is a jury question. Swanger v. State, 251 Ga.App. 182, 185-186 (554 S.E.2d 207) (2001) ("[h]aving heard evidence in support of [defendant's] equal access theory, the jury was authorized to reject it").

         Thomas presumptively possessed the methamphetamine at issue here because it was found in a dresser in her bedroom. See Swan, 300 Ga.App. at 670 (2); Bailey, 294 Ga.App. at 439-440 (1). Additionally, evidence of recent methamphetamine use was found in open view on top of the dresser, Thomas admitted that other drugs and drug paraphernalia found in the room were hers, and the police saw no indication that anyone else was living in the room. Although Thomas claimed that the methamphetamine in the dresser and the suspected methamphetamine on top of the dresser belonged to other people, the jury was not required to believe her testimony. See Swan, 300 Ga.App. at 670-671 ("[w]hether the evidence of equal access is sufficient to rebut any inference of possession arising from discovery of drugs in the defendant's bedroom is a question properly left to the jury" (citation and punctuation omitted)).

         2. Thomas argues that the trial court erred by allowing a GBI forensic chemist to testify about drug identification tests performed by a different chemist who was not available at trial. We disagree.

         During trial, the State announced that the chemist who had weighed and performed the drug analysis of the methamphetamine found in Thomas's dresser could not come to court due to her husband's medical emergency and her own serious illness. Over Thomas's objection, the State presented the testimony of the woman's co-worker, another GBI chemist, who was tendered as an expert in forensic chemistry and drug identification testing. The second chemist stated that while he had neither performed the drug analysis himself nor ...


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