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Guerrero-Moya v. State

Court of Appeals of Georgia, First Division

May 24, 2019


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

          Barnes, Presiding Judge.

         Following the denial of his motion for new trial, as twice amended, Ismael Guerrero-Moya appeals his jury convictions for trafficking in methamphetamine and possession of a firearm during the commission of a crime. On appeal, Guerrero-Moya contends that the trial court erred by instructing the jury that he was a co-conspirator, and then failing to properly instruct the jury on the law of conspiracy. He also asserts two instances in which he maintains that trial counsel rendered ineffective assistance. Following our review, we affirm.

         On appeal, this Court views the evidence in the light most favorable to the jury's verdict. See Rankin v. State, 278 Ga. 704, 705 (606 S.E.2d 269) (2004). So viewed, the evidence demonstrates that on June 11, 2010, a special agent with the Fayette County Sheriff's Department received a call from an Immigration and Customs Enforcement ("ICE") agent regarding a residence that was purportedly being used to "wash" methamphetamine. According to the ICE agent, the information was provided by a confidential informant who advised that individuals in the home were washing approximately 3.5 pounds of methamphetamine. The ICE agent further informed the special agent that a white Dodge pickup truck was parked at the residence, and that the same vehicle was seen at the home the previous day.

         After surveilling the residence for approximately 90 minutes, officers conducted a "knock-and-talk" at the residence. When the special agent and two other officers knocked on the door of the residence two men answered. The officers informed the men that they had received information about possible drug activity at the home, and asked if they could come inside. The men "gave [the officers] . . . a sweeping motion with their hands, [and] moved out of the way." There was no furniture in the living room, and the room had a "prominent" odor of acetone. An officer asked one of the men to talk with him in the kitchen, and while there the officer observed strainers, scales, glassware, pot, pans, and methamphetamine residue, which indicated to the officer that "there was methamphetamine being produced there." The officer also noticed from his viewpoint in the kitchen, a bedroom containing a tub filled with methamphetamine and a firearm laying next to a mattress. The officer was only "three or four feet away from the [bedroom's] doorway" and the items were in plain view. Guerrero-Moya emerged from the bedroom. The officer testified that Guerrero-Moya was within arms reach of the firearm that was seen near the mattress in the bedroom. Guerrero-Moya and the two men were arrested. Police secured a search warrant for the residence, and seized three and one half pounds of methamphetamine, acetone, Tupperware containing suspected methamphetamine residue, a knife with suspected methamphetamine residue, a firearm with ammunition, and other drug related items.

         When interviewed by police, Guerrero-Moya acknowledged that he knew about the methamphetamine, but that he had arrived at the residence only 30 minutes before the officers to watch a soccer game. A co-indictee, Ulvado Alverado-Tequilla, testified that Guerrero-Moya was just a visitor and had nothing to do with the methamphetamine at the residence.

         1. Although not challenged by Guerrero-Moya, we find the evidence sufficient pursuant Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), to find the appellant guilty of the crimes charged.

         2. Guerrero-Moya contends that it was plain error for the trial court in its instruction to refer to the appellant as a co-conspirator, and to not properly instruct the jury on the law of conspiracy. The trial court instructed the jury as follows: "Any out-of-court statement made by one of the defendants or any co-conspirator on trial on this case after the alleged criminal act has ended may be considered only against the person who made the statement." According to Guerrero-Moya, although not objected to, the instruction constituted plain error because the trial court instructed the jury that statements made by a co-conspirator could be used against him, but at no point instructed the jury on what constituted a conspiracy or that it was for the jury to determine if a conspiracy existed. He also contends that by so instructing the jury, the trial court essentially charged that a conspiracy existed and that the appellant was a participant, impermissibly removing that ultimate determination from the jury's province.

         As acknowledged by Guerrero-Moya, the failure to object regarding a jury instruction at trial precludes appellate review unless "the jury charge constitutes plain error which affects substantial rights of the parties."OCGA § 17-8-58 (b); State v. Kelly, 290 Ga. 29, 32 (1) (718 S.E.2d 232) (2011) ("[A]ppellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions.")

The "plain error" test adopted . . . in State v. Kelly . . . authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.

(Citations and punctuation omitted.) Lake v. State, 293 Ga. 56, 59 (5) (743 S.E.2d 414) (2013). However.

even when plain error appears, which we do not decide here, reversal is not required if the defendant invited the alleged error. . . . [A]ffirmative waiver, which involves the intentional relinquishment or abandonment of a known right, as opposed to mere forfeiture by failing to object, prevents a finding of plain error.

(Citations and footnote omitted.) Nelson v. State, 325 Ga.App. 819, 820-821 (755 S.E.2d 217) (2014).

         Guerrero-Moya requested that the trial court charge the jury as follows: "The confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself." Although not the identical language of the charge given, the language which Guerrero-Moya now finds ...

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