a jury trial, Lisa Ann Lebis appeals her convictions of
felony murder and other crimes related to the shooting death
of Officer Sean Callahan. Lebis contends that the evidence was
insufficient to support the verdict with regard to a number
of counts against her and that trial counsel rendered
ineffective assistance in the case. For the reasons set forth
below, we affirm in part and reverse in part-affirming
Lebis's convictions of two of the misdemeanor obstruction
counts and all of the counts regarding possession of firearms
and dangerous weapons; but reversing her conviction of felony
murder and of the other two misdemeanor obstructions.
in the light most favorable to the verdict, the record shows
that Lebis and her husband, Tremaine, had been staying in a
rented motel room near their home for eight days, but they
were asked to vacate the room after failure to pay. Lebis
cursed at motel staff, who called 911 to report Lebis's
unruly behavior. Shortly thereafter, Officer Waymondo Brown
and Officer Callahan arrived to investigate. After talking to
motel staff, they proceeded to Lebis's room, where they
discovered Lebis and Tremaine moving items into the motel
breezeway. Officer Brown asked them to stop what they were
doing, and he discovered that the room that they had been
staying in was severely soiled and damaged. After inspecting
the motel room, Officer Brown walked out and gave a hand
signal to Officer Callahan to indicate that they were going
to place Lebis and Tremaine under arrest. Officer Brown did
not see the fanny pack that Tremaine was wearing at that
time, and neither officer knew that Tremaine was carrying a
handgun in the fanny pack.
Brown grabbed Tremaine's right arm and told Tremaine to
put his left arm behind his back and keep it there. Lebis
became irate, and started yelling very loudly at Officer
Brown to leave Tremaine alone. Officer Brown testified that
Lebis's screaming was "not assisting" with the
execution of the arrest. Tremaine struggled, was ultimately
tasered without full effect, and broke free and ran behind
the motel. Officers Callahan and Brown pursued, with Officer
Callahan in the lead. During the pursuit, Tremaine pulled his
gun, a .357 caliber Glock, from the fanny pack and began
shooting, fatally wounding Officer Callahan. Officer Brown
returned fire, killing Tremaine. Officer Brown ran to
Tremaine, kicked away his gun, and went to assist Officer
Callahan, who had fallen over a retaining wall.
Brown tried to move Officer Callahan, but was unable to do
so. Instead, he began to administer CPR, which he continued
to do for approximately two minutes. At that point, Lebis
appeared at the top of the retaining wall and started yelling
at Officer Brown, asking him if he killed her husband. At
that moment, Officer Brown realized that he had not secured
Tremaine's weapon, making him vulnerable. Officer Brown
pointed his gun at Lebis with one hand while trying to
maintain pressure on Officer Callahan's gunshot wound
with the other. Officer Brown yelled at Lebis repeatedly
until she showed him her hands so he could see that she was
unarmed. Officer Brown then resumed CPR on Officer Callahan.
response to an emergency alert sent by Officer Brown, Officer
Alex Frazier next reported to the scene and found Lebis, who
had come back from behind the building, standing next to the
patrol cars parked in front of the motel. Officer Frazier
pointed his firearm at Lebis and ordered her to show him her
hands. At the time, she was talking on a cell phone, with one
hand holding the cell phone and the other down by her pocket
area. Lebis did not comply with Officer Frazier's
commands. Instead, she began to move in his direction.
Officer Frazier instructed Lebis to get on the ground, but
she did not comply and kept advancing. Another officer, who
had then arrived at the scene, approached Lebis from behind,
took her to the ground, and restrained her. Later, Officer
Joshua Waites arrived on the scene. By that time, Lebis was
being held in the back of a patrol car. Officer Waites opened
the door in an attempt to search Lebis for weapons, and she
started kicking him wildly.
dangerous weapons and firearms were recovered from the scene.
The weapon that Tremaine used to shoot Officer Callahan was a
modified .357 caliber Glock handgun. The following guns and
ammunition were removed from the motel room shared by Lebis
and Tremaine: a shotgun, a modified 9mm handgun, 20 live
rounds of .357 Winchester ammunition, 30 live rounds of 9mm
ammunition, and 16 shotgun shells. The guns were found inside
boxes and luggage, with some wrapped in clothing and several
others in plain view. Additional weaponry taken from the
motel room included harpoonlike rocket motors with attached
razor tips, a homemade silencer, a razor blade, two knives, a
laser scope, and a homemade bandolier for shotgun shells.
When interviewed by police after Officer Callahan's
shooting, Lebis admitted that she knew that Tremaine carried
a gun in his fanny pack during his flight from police, but
she denied knowledge of the other weapons in the motel room.
She did admit that she knew the person from whom Tremaine
regard to the convictions Lebis does not challenge in this
appeal, the evidence was sufficient to enable a
jury to find her guilty beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979). As for the convictions Lebis does
challenge, we consider each one in turn.
challenge to her convictions of all five possession counts
and of felony murder are interrelated because the felony
murder charge's predicate felony was her alleged
possession of a firearm-the murder weapon-by a convicted
felon. Lebis contends that there was insufficient evidence to
support her convictions on Counts XII and XIII charging her
with possession of dangerous weapons and on Counts XIV, XV,
and XVI charging her with possession of firearms by a
convicted felon, all concerning the various weapons and
firearms recovered after the murder, which occurred when
Tremaine fled from the motel room he and Lebis shared for
eight days. She also argues that the evidence was
insufficient to support her conviction, as a party to the
crime, of felony murder predicated on joint and constructive
possession of the weapon Tremaine pulled from his fanny pack
at the time of the killing. We find that the evidence was
sufficient to support Lebis's convictions of possessing
the various weapons as charged in Counts XII, XIII, XIV, XV,
and XVI of the indictment, but that the evidence was
insufficient to support her conviction of felony murder as
charged in Count I of the indictment.
turning back to the facts of this case, some background is
appropriate. It is true that "[p]ossession of contraband
may be joint or exclusive, and actual or constructive."
In the Interest of D.H., 285 Ga. 51, 52 (1) (673
S.E.2d 191) (2009). Actual possession means knowing, direct
physical control over something at a given time. Id.
For constructive possession, the standard is also
well-understood: if a person has both the "power and the
intention at a given time to exercise dominion or
control" over a thing, then the person is in
constructive possession of that thing. State v.
Lewis, 249 Ga. 565, 566 (292 S.E.2d 667) (1982);
Jones v. State, 339 Ga.App. 95, 98 (1) (a) (791
S.E.2d 625) (2016); Holiman v. State, 313 Ga.App.
76, 78 (1) (720 S.E.2d 363) (2011) ("A person who,
though not in actual possession, knowingly has both the power
and the intention at a given time to exercise dominion and
control over a thing is then in constructive possession of
it.") (internal citation omitted); Murray v.
State, 309 Ga.App. 828, 830 (711 S.E.2d 387) (2011)
(applying same standard to possession of a weapon). Mere
proximity to contraband, absent other evidence connecting a
suspect with that contraband, is not enough to establish
constructive possession. Mitchell v. State, 268 Ga.
592 (492 S.E.2d 204) (1997). If one person alone has actual
or constructive possession of a thing, then the person is in
sole possession of it. Lewis, 249 Ga. at 566. If two
or more people share actual or constructive possession of a
thing, then their possession is joint. Id.
possession can be proven-and very often is proven-by
circumstantial evidence. See Holiman, 313 Ga.App. at
80. Of course, as with any charge based on purely
circumstantial evidence, in order to support a conviction
"the evidence must exclude every reasonable hypothesis,
save that of constructive possession by the defendant."
Id.; see also Smiley v. State, 300 Ga. 582,
586 (1) (797 S.E.2d ) (2017) (citing OCGA § 24-14-6
(2013)). As we have noted, proximity to contraband is plainly
not enough. Stacey v. State, 292 Ga. 838, 840 (1)
(a) (741 S.E.2d 881) (2013). But as this Court has also held,
consistent with OCGA § 24-14-6, "questions as to
the reasonableness of hypotheses are generally to be decided
by the jury which heard the evidence and . . . that finding
will not be disturbed unless the verdict of guilty is
unsupportable as a matter of law." Robbins v.
State, 269 Ga. 500, 501 (1) (499 S.E.2d 323) (1998); see
also Dixon v. State, 298 Ga. 200, 202 (1) (779
S.E.2d 290) (2015). In other words, "whether the
evidence shows something more than mere presence or
proximity, and whether it excludes every other reasonable
hypothesis, are questions committed principally to the trier
of fact, and we [should] not disturb the decisions of the
trier of fact about these things unless they cannot be
supported as a matter of law." Holiman, 313
Ga.App. at 80.
Giving appropriate deference to the factfinder's
assessment of the weight and credibility of the evidence, the
direct evidence shows that Lebis had been cohabitating with
Tremaine in proximity with the five weapons that she was
convicted of possessing. But the circumstantial evidence
shows far ...