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Duncan v. State

Court of Appeals of Georgia, Fourth Division

June 19, 2018

DUNCAN
v.
THE STATE.

          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          Dillard, Chief Judge.

         Alfred Duncan appeals his convictions for possession of methamphetamine, possession of methamphetamine with intent to distribute, two counts of possession of drug-related objects, and possession of a firearm by a convicted felon. Specifically, Duncan argues that (1) there was insufficient evidence to support his drug convictions; (2) his trial counsel was ineffective for failing to file a motion to suppress evidence; (3) the trial court erred in denying his post-trial motion for fingerprint testing; and (4) the trial court erred by denying his motion for a directed verdict as to the firearm-related conviction because there was a fatal variance between the offense alleged in the indictment and the proof presented at trial. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [1] the evidence shows that on May 5, 2014, Amy Johnson and her boyfriend went to Duncan's house around noon to go fishing. At some point, Johnson's boyfriend left, and she went inside Duncan's home. Johnson's boyfriend did not return that day, and because Duncan refused to give Johnson a ride or let her use his phone, she was forced to stay the night. While Johnson was there, Duncan entered the room where she was staying, along with two other people, [2] and asked her to have sexual intercourse or oral sex with him, but she refused. Although Johnson tried to leave several times, Duncan told her that she "wasn't going anywhere." And later that evening, Duncan came into Johnson's room again, waving a gun and saying "something about sexual favors." On May 7, 2014, two days after Johnson first arrived at Duncan's home, she escaped and ran to a friend's house while he was in the shower.[3] Johnson told her friend and his son about the ordeal and requested a ride home, where she lived with her boyfriend and his parents. They agreed, and once she arrived home, Johnson called 911 to report the incident. A sheriff's deputy responded to the call and escorted Johnson to the sheriff's department for questioning.

         After interviewing Johnson, law-enforcement officers went to Duncan's residence to investigate further. Once they arrived, the officers knocked on the door and announced that they were from the sheriff's department, but initially, there was no response. Through a window, the officers saw doors being closed and heard movement in the house like "people were shuffling around, " which led them to believe that someone was home. For this reason, they continued to knock on the door and yell "Sheriff's Office[, ] loud and clear." Eventually, about 20 minutes after the officers arrived, Duncan answered the door, but he refused to consent to a search of his home. As a result, the officers obtained a warrant to search Duncan's home for the handgun described by Johnson. And during the search, they found a Crown Royal bag that contained a silver flask or margarita shaker, two small baggies of what appeared to be methamphetamine, another small bag with what appeared to be methamphetamine residue, a "meth pipe[, ]" and a digital scale. Given this discovery, the officers sought a second warrant to search for other drugs and drug paraphernalia, but no other drugs were found. But while waiting on the second warrant, the other officers continued searching for the firearm, which they eventually found "in a big box by the front door . . ." that also contained "a bunch of electronics that had been taken apart." The contents of the Crown Royal bag were then sent to the crime lab for testing, and just as the officers suspected, the substance inside the small baggies tested positive for methamphetamine.

         Thereafter, Duncan was charged with false imprisonment, possession of methamphetamine with intent to distribute, possession of methamphetamine, theft by receiving stolen property, possession of a firearm by a convicted felon, and two counts of possession of drug-related objects.[4] And following a jury trial, Duncan was convicted of the foregoing drug-and-firearm offenses, but found not guilty of false imprisonment and theft by receiving stolen property. Duncan filed a motion for a new trial and a post-trial motion for independent fingerprint testing of certain evidence, but after a hearing, the court denied both motions. This appeal follows.[5]

         1. Duncan first argues that the trial court erred in denying his motion for a directed verdict as to all of the drug-related charges because there was insufficient evidence to support his convictions for those offenses. We disagree.[6]

         When a criminal conviction is appealed, the evidence must be viewed "in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence."[7] And, of course, in evaluating the sufficiency of the evidence, we do not "weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."[8] Thus, we will uphold a jury's verdict so long as there is "some competent evidence, even though contradicted, to support each fact necessary to make out the State's case."[9] Bearing these guiding principles in mind, we turn now to Duncan's specific challenge to the sufficiency of the evidence supporting his convictions.

         Duncan argues that there is insufficient evidence to establish that he was in actual or constructive possession of the Crown Royal bag, which contained the methamphetamine and related paraphernalia.[10] It is well established that "possession of drugs can be actual or constructive, sole or joint."[11] And a person has actual possession of a thing if "he or she knowingly has direct physical control of it at a given time."[12] On the other hand, a person who, though not in actual possession, "knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it."[13] Generally, a finding of constructive possession "cannot rest [solely] upon the person's spatial proximity to the object."[14] Nevertheless, 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."[15] And while this presumption may be rebutted by showing that others had access to the premises, the equal-access doctrine "applies to rebut the presumption of possession only where the sole evidence of possession of contraband found on the premises is the defendant's ownership or possession of the premises."[16] Significantly, however, so long as there is "slight evidence of access, power, and intention to exercise control or dominion over an instrumentality, the question of fact regarding constructive possession remains within the domain of the trier of fact."[17]

         Here, the State presented ample evidence of Duncan's constructive possession of the methamphetamine and drug paraphernalia found inside the Crown Royal bag. To begin with, the contraband was found in Duncan's residence, which authorizes a jury to presume that he possessed it. Second, Griffin testified that Duncan and Brown had a "drug business going on." Griffin further testified that both Duncan and Brown "smoked meth, " and when asked where the drugs came from, she stated that they "were selling it together." And this testimony was consistent with that of a law-enforcement officer, who had experience in narcotics and testified that the items contained in the Crown Royal bag, such as separate baggies and a digital scale, show an intent to distribute drugs. Finally, when law-enforcement officers knocked on Duncan's door and repeatedly announced their presence, his suspicious behavior also evinced a connection between himself and the illegal contraband. Indeed, as previously noted, Duncan refused to answer the door for about 20 minutes, during which time the officers heard people inside "shuffling around."[18]

         Duncan's sole argument appears to be that the evidence was insufficient to establish that he possessed the Crown Royal bag because the State failed to prove that it did not belong to Brown, who fled the scene after the law-enforcement officers arrived. Without providing citations to any specific testimony or other evidence, Duncan maintains that, other than the discovery of the contraband in his home, the only evidence the State presented to establish his possession of the Crown Royal bag was Griffin's testimony that "everybody had been doing/smoking meth and that both Brown and Duncan kept their methamphetamine in Crown Royal bags."[19] At trial, Duncan testified in his own defense that Brown fled his home when the officers arrived, that Brown owned the Crown Royal bag containing the contraband, and that Duncan had never seen the bag before law-enforcement officers discovered it. But although Duncan denied any knowledge of the contraband, the jury was "not obligated to believe [him] even if [his] testimony is uncontradicted and may accept or reject any portion of the testimony."[20] Furthermore, contrary to Duncan's argument, the State "is not required to disprove bare possibilities that the crime could have been committed by someone else."[21] In sum, given Duncan's failure to rebut the presumption that he was in possession of the contraband found in his home, combined with the other evidence detailed supra, the jury was authorized to find that he was in constructive possession of the drugs and drug-related objects contained in the Crown Royal bag.[22]

         2. Duncan next argues that his trial counsel was ineffective for failing to file a motion to suppress the drugs and drug-related objects found during the search of his home. Again, we disagree.

         In evaluating claims of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington, [23] "which requires [a defendant] to show that his trial counsel's performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different."[24] Additionally, there is a strong presumption that trial counsel's conduct "falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption."[25] Particularly relevant to this case, "when trial counsel's failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion."[26] Lastly, unless clearly erroneous, we will "uphold a trial court's factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court's legal conclusions in this regard are reviewed de novo."[27] With these guiding principles in mind, we will now consider this claim of error.

         Duncan argues that his trial counsel was ineffective for failing to file a motion to suppress the drugs and drug-related evidence because the search of the Crown Royal bag exceeded the scope of the initial warrant, which only authorized the officers to search for a firearm. According to Duncan, the contents of the Crown Royal bag were not readily apparent, and anyone picking up the bag, which contained lightweight items, would have known that it did not contain a firearm. But we have held in similar circumstances that police officers were authorized to search a small "Crown Royal" fabric bag for a firearm when only drugs and drug-related paraphernalia were ultimately found inside the bag.[28] Furthermore, as previously mentioned, Duncan testified in his own defense, denying any knowledge of the Crown Royal bag and contending that Brown owned the bag and its contents. Under such circumstances, Duncan had no legitimate expectation of privacy in that item, and thus, he lacked standing to challenge the search.[29] Indeed, at the motion-for-new-trial hearing, Duncan's trial counsel testified that he had no concerns about the constitutionality of the search. And given that Duncan lacked standing to challenge the search of the Crown Royal bag, his counsel was not ineffective for failing to file a meritless motion to suppress the drug-related evidenced discovered in the bag.[30]

         3. Duncan next argues that the trial court abused its discretion in denying his post-trial motion for fingerprint testing, which was necessary to support one of his ineffective-assistance-of-counsel claims. But Duncan has provided no legal authority (and we have found none) suggesting that a trial court abuses its discretion by denying a post-trial request for forensic testing of evidence, and thus, he has abandoned his challenge to the trial court's ruling in this regard.[31]

         4. Lastly, Duncan contends that the trial court erred in finding that there was no fatal variance between the count of the indictment charging him with possession of a firearm by a convicted felon and the evidence presented at trial. Specifically, he notes that the indictment identified his prior felony conviction as one for possession of a firearm by a convicted felon, but at trial, the State presented evidence that his prior felony convictions were drug offenses and theft by receiving stolen property. Then, at the conclusion of trial, Duncan moved for a directed verdict as to the firearm-related count on this basis, but the motion was denied.

         To the extent that Duncan has not abandoned this claim by, yet again, failing to provide any legal authority to support it, [32] we agree with the trial court that he was not entitled to a directed verdict as to the firearm charge. As explained by the Supreme Court of Georgia, "[o]ur courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality."[33] Thus, the true inquiry is "not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused."[34] Further,

[i]t is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect ...

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