Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thompson v. State

Court of Appeals of Georgia, Fifth Division

February 28, 2019

THOMPSON
v.
THE STATE.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          MARKLE, JUDGE.

         A jury convicted Ricky Lewis Thompson[1] of one count of sale of a controlled substance. He now appeals, arguing the trial court erred in its denial of his motion for new trial, as amended, because (1) the evidence was insufficient; (2) the trial court made an improper comment on the evidence; and (3) he received ineffective assistance of counsel. For the reasons that follow, we affirm.

         When reviewing a defendant's challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         So viewed, the record shows that in April 2011, a captain with the Walton County Sheriff's Office narcotics unit opened an investigation into possible drug sales at Thompson's home following citizen complaints about traffic to and from the residence and that pills were being purchased there. During the course of the investigation, officers conducted four trash pulls at Thompson's residence, finding pill bottles, full prescriptions, and doctor's notes. A search of Thompson's residence uncovered a large number of prescription pills.

         In July 2011, a sergeant with the Walton County Sheriff's Office, who was involved in the investigation, subsequently encountered Jeremie Moorehead leaving Thompson's residence. Police stopped Moorehead's vehicle and, with Mooreheads's consent, searched the vehicle, finding a green pill bottle containing an Oxycodone pill. Moorehead admitted he was a middleman for Thompson's drug sales and he agreed to serve as a confidential informant in the investigation.

         On July 27, 2011, Moorehead assisted police in orchestrating a controlled buy from Thompson. Moorehead arranged to meet Thompson at a gas station to purchase ten pills. This was not the first time Moorehead purchased drugs from Thompson in this manner. Moorehead was fitted with an electronic monitoring device, and the buy was recorded on video and audio and monitored by police. Police gave him the money to purchase the pills. Moorehead went inside the gas station, but he did not see Thompson; instead, he saw another man he did not know. Moorehead gave this man the money and picked up the Lortab pills "at the usual spot."

         At trial, Marcus Lackey testified that, on the same day of the controlled buy, he met Thompson at his home to pick up cash Thompson owed him, but Thompson paid him with Lortab pills instead of cash. He testified that Thompson told him to take the pills and drop them off at the gas station where someone would be waiting to pick them up. Lackey testified that when Moorehead came into the gas station, they exchanged the pills for cash.

         Following a trial in April 2013, the jury convicted Thompson on one count of sale of a controlled substance based on the July 27, 2011 controlled buy.[2] He was sentenced to 10 years to serve in confinement. He filed a motion for new trial, as amended, arguing the evidence was insufficient to convict him of sale of a controlled substance, the trial court improperly commented on the evidence, and that he received ineffective assistance of counsel. The trial court denied the motion. This appeal followed.

         1. Thompson contends there was insufficient evidence to authorize the jury to convict him of sale of a controlled substance because the circumstantial evidence supports the alternate theory that Lackey was guilty of selling pills to Moorehead without Thompson's knowledge or aid. This argument is without merit.

When reviewing a defendant's challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citations omitted.) Lancaster v. State, 291 Ga.App. 347, 348 (662 S.E.2d 181) (2008). "Further, to sustain a judgment of conviction based upon circumstantial evidence, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt." (Citation, punctuation and emphasis omitted.) Marsengill v. State, 275 Ga.App. 840, 841 (622 S.E.2d 58) (2005). "The determination of whether an alternative hypothesis raised by the evidence is reasonable is a job for the factfinder, who is authorized to reject a hypothesis that he considers implausible." (Citation omitted.) Id. at 841. Moreover, the jury decides whether the evidence excluded every reasonable hypothesis but for the defendant's guilt. Id.

         Pursuant to OCGA § 16-13-30 (b), "[i]t is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance."

         Here, Moorehead testified he spoke with Thompson and arranged to meet him at the gas station to purchase ten pills. He also testified he bought pills from Thompson at this gas station before. He testified that, when he went inside the gas station, he did not see Thompson. Instead, there was another man there, and he exchanged the money for the drugs with this person. The controlled buy was electronically monitored by a sergeant and recorded on audio and video, confirming that the sale of prescription pills took place.

         Additionally, Lackey testified that Thompson arranged for him to exchange the drugs with Moorehead to cover a debt Thompson owed Lackey.

Although a conviction cannot rest solely on the uncorroborated testimony of an accomplice, corroboration requires only slight evidence from an extraneous source identifying the accused as a participant in the criminal act. Corroborative evidence may be circumstantial and based on the testimony of other accomplices. And it does not have to be sufficient to warrant a conviction. Rather, the corroboration, which may include the defendant's conduct before and after the crime, need only connect and identify the defendant with the crime.

(Citations, punctuation, and footnotes omitted.) Clark v. State, 294 Ga.App. 331, 333 (670 S.E.2d 131) (2008). Here, Lackey gave a detailed account of the sale, including Thompson's planning and execution of the crime. His testimony is corroborated by the testimony of Moorehead. It is further corroborated by the four trash pulls at Thompson's residence, yielding pill bottles, full prescriptions, and doctor's notes, and the search of Thompson's residence, yielding a large number of prescription pills. Based on the foregoing, there was evidence from which the jury could exclude any reasonable inference or hypothesis but for Thompson's guilt. Marsengill, 275 Ga.App. at 841. Accordingly, the evidence was sufficient to support Thompson's conviction. Lancaster, 291 Ga.App. at 348.

         2. Next, Thompson argues the trial court erred by improperly commenting on the evidence three separate times during trial. However, before addressing the alleged error, we must first determine our standard of review.

         Under current OCGA § 17-8-57, "[i]t is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge's opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused." OCGA § 17-8-57 (a) (1). The Supreme Court of Georgia recently held that OCGA § 17-8-57 applies to cases ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.