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Burgess v. State

Court of Appeals of Georgia, First Division

February 19, 2019

BURGESS
v.
THE STATE.

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

          MCMILLIAN, JUDGE.

         Donald Terald Burgess was convicted by a jury of possession of cocaine with intent to distribute and sale of cocaine.[1] He appeals, arguing that the evidence was insufficient and that the trial court erred by denying his motion to suppress evidence of the contraband and by admitting evidence of a prior crime under OCGA § 24-4-404 (b). We find no merit to these contentions and affirm.

         The record shows that around December 8, 2014, a detective with the Clarke County Sheriff's Office ("Detective") who had been assigned to the Northeast Georgia Regional Drug Task Force, set up surveillance of room 155 of the Bulldog Inn ("Inn") located in Athens, Georgia, which was a corner unit located in a separate building behind the main part of the Inn. The Detective continued to surveil the room for the next several weeks during which time he saw a pattern of behavior of Burgess arriving at the Inn in the morning and then going to room 155.[2] The Detective observed that during the course of the day, different people would arrive at the Inn and go to Burgess' room. The Detective saw Burgess open the door to allow these different individuals to enter his room, and after a short amount of time, Burgess would exit the room and go around to a storage room that was located adjacent to his room. Burgess would go into the storage room, stay for a short period, and then exit the storage room and go back to his room. After several minutes, sometimes less, the person who had been observed going into Burgess' room would then leave. With the exception of Elizabeth Clink, who was a known cocaine user who also had a room at the Inn, none of the people seen entering Burgess' room would accompany him to the storage room, and this same pattern of activity would occur multiple times almost every day during the surveillance period. At the end of the day, Burgess would exit the room and leave the premises in his car.

         Based on his observations and other evidence, the Detective obtained a warrant to conduct a search of room 155 and the storage closet. The Detective and other law enforcement officers arrived at the Inn on December 19, 2014, to execute the warrant. Immediately before the warrant was executed, police observed a woman, subsequently identified as Norene Smith, enter Burgess' room. Consistent with prior observations, Burgess exited the room and went to the storage room, came out of the storage room, and went back to his room. Smith then exited room 155 and started walking back to her car. Police saw Smith, who was familiar to them as a drug user, put something in her mouth, and they intercepted Smith in the parking lot and told her to spit it out; officers retrieved the substance, which they said looked like a piece of crack cocaine. Smith told officers that she purchased the cocaine from Burgess, and she also testified at trial and admitted that she put a piece of "crack" in her mouth and then spit it out at the direction of police. She said she purchased the cocaine from Burgess and that she paid him $20.00 for the piece of cocaine. Subsequent forensic testing indicated the substance Smith purchased from Burgess was in fact cocaine.

         While the situation with Smith was unfolding, the Detective and other officers were executing the search warrant. Officers knocked on Burgess' door, and Burgess looked out the window. He hesitated for a moment and then opened the door. Police entered the room and detained Burgess and another man. Officers searched the room and located a quantity of clear "corner" bags that are commonly used to store or resale small quantities of narcotics or drugs under the liner of the garbage can in the room and a pair of binoculars. Officers also found $637 in Burgess' right front pants pocket and observed that there was a twenty dollar bill stuck down into the center of the money, which was not part of the fold.

         The storage room was also searched. During that search, police found a digital scale hidden above the door frame and a bag of what appeared to be new hypodermic needles stuck inside the insulation by the door near the storage room. Additionally, officers found two magnetic boxes stuck to an electrical panel; one box contained what was subsequently identified as 3.26 grams of "loose solid" cocaine and .95 grams/20 pieces of "solid"/crack cocaine, and the other box contained what was subsequently identified as 9.03 grams of heroin. The Detective testified that based on his training and experience, the amount of cocaine discovered in the magnetic box was consistent with an intent to distribute as opposed to simple possession. Additionally, the State introduced evidence that Burgess was convicted of possession of cocaine with intent to distribute in 2003. After Burgess was convicted of possession of cocaine with intent to distribute and sale of cocaine, this appeal followed.

         1. Burgess first contends that the evidence was insufficient to support his convictions because no drugs were found on his person or in his room at the Inn and that others, including at least one known drug dealer, had access to the storage room where the drugs were found. However, "it is well established that possession of drugs can be actual or constructive, sole or joint." (Citation and punctuation omitted.) Duncan v. State, 346 Ga.App. 777, 780 (815 S.E.2d 294) (2018). "A person who knowingly has direct physical control over a thing at a given time is in actual possession of it." (Citation and punctuation omitted.) Murphy v. State, 314 Ga.App. 753, 755 (2) (725 S.E.2d 866) (2011). And a person who has both the power and intention to exercise dominion or control over a thing at a given time is in constructive possession of it. "[S]o 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.'" Duncan, 346 Ga.App. at 781 (1).

         Although the evidence here was largely circumstantial, the jury was entitled to infer from the pattern of activity observed by police over almost a two week period that Burgess was using the storage room near his motel room to store drugs, which he then retrieved and sold out of his motel room. And while this evidence came in part from the observations of the surveilling officer, the State also presented testimony from a witness who had purchased cocaine from Burgess, and Burgess' conduct during this transaction was consistent with his conduct with other individuals who visited his room during the surveillance period. Although Burgess asserts that this witness should not be believed because she was a known drug user and convicted felon, such matters were brought out before the jury, and it was the duty of the jury, not this Court, to decide witness credibility. The fact that they did so adversely to Burgess was within their prerogative, and as long as there was some competent evidence to support each element of the crimes charged, Burgess is not entitled to a reversal on this basis. E.g., Jones v. State, 318 Ga.App. 26, 29 (1) (a) (733 S.E.2d 72) (2012).

         Also, the jury was authorized to infer Burgess' intent to distribute from the extrinsic evidence establishing his previous conviction for possession of cocaine with intent to distribute, as well as testimony from an experienced narcotics officer that the amount of contraband found in the storage room was inconsistent with personal use, the plastic bags found in Burgess' room were of the same type used to package drugs for sale, and the money found on his person.

The issue of intent is peculiarly a question of fact for jury determination [and] even if not formally admitted as an expert, a police officer may give his opinion as to whether the amount or value of the contraband is consistent with distribution, if the State lays a foundation for the opinion by eliciting testimony about the officer's experience and training in drug enforcement.

(Indention, citation and punctuation omitted.) Barber v. State, 317 Ga.App. 600, 605 (3) (732 S.E.2d 125) (2012).

         Having reviewed the evidence set out above as well as other evidence presented at trial, we conclude that ample evidence authorized the jury to conclude that Burgess sold cocaine and possessed cocaine with the intent to distribute.

         2. Burgess next argues that the trial court erred by denying his motion to suppress evidence seized during the search because there was insufficient ...


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