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Jones v. State

Court of Appeals of Georgia, Fourth Division

June 19, 2019

JONES
v.
THE STATE.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          MARKLE, JUDGE.

         Brandon Jones appeals from the denial of his motion for new trial, as amended, after a jury convicted him of possession of methamphetamine (OCGA § 16-13-30) and possession of a firearm by a convicted felon (OCGA § 16-11-131).[1] On appeal, Jones argues that (1) the evidence was insufficient to convict him of being a felon in possession of a firearm; (2) the trial court erred in admitting his confession without determining whether it was given voluntarily; and (3) he received ineffective assistance of counsel based on a conflict of interest. After a thorough review of the record, and for the reasons that follow, we reverse the denial of the motion for new trial and remand the case for a new trial.

         Viewing 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), the record shows that, in September 2012, Frank Taylor stole a .22 caliber pistol from someone's home. While investigating the theft a few days later, police obtained a description of the person who had purchased the gun and the suspect's vehicle. An investigator with the City of Oakwood police department went to a Super 8 motel in Gainesville, Georgia, where he observed the vehicle and Jones, the suspected purchaser. The investigator spoke with Jones outside the motel, and Jones quickly admitted that he purchased the gun from Taylor for $50. Jones told the investigator that the gun was hidden behind the refrigerator in his motel room. Jones gave police permission to enter the room and retrieve the gun, and police located the gun behind the refrigerator. A corporal with the Gainesville police department assisted the investigator and conducted a pat-down search of Jones, during which he located a plastic baggie with a substance later determined to be 1.45 grams of methamphetamine.

         Jones's girlfriend testified that she and Jones often stayed in hotels around that time. She explained that she had rented the room at the Super 8 motel, but Taylor had paid for it. However, she confirmed that Taylor did not stay in the room with them. Jones testified in his own defense, denying that he told the investigator that he bought the gun from Taylor, and stating that the investigator promised him he would not go to jail.[2] According to Jones, all of Taylor's belongings were in the room and Taylor had placed the gun behind the refrigerator. Taylor did not testify at trial.

         The jury convicted Jones of the drug and possession of a firearm charges. Thereafter, Jones filed a motion for new trial, as amended, arguing, as is relevant to this appeal, that the evidence was insufficient to show that he possessed the firearm; that his statement to police was inadmissible because it was made upon a hope of benefit; and that he received ineffective assistance of counsel because his trial attorney failed to inquire into the voluntariness of his statement, failed to object to testimony regarding what Taylor told the investigator, and had an actual conflict of interest because he had previously represented Taylor.

         At a hearing on the motion, trial counsel admitted that he had not filed a motion to suppress Jones's statements to police, or asked the trial court to inquire into the voluntariness of those statements. He further acknowledged that he represented Taylor on the charges arising from the theft of the gun, but that he did not seek a mistrial based on the conflict of interest in Jones's case. Both trial counsel and the prosecutor explained that they had since listened to Taylor's post-arrest interview with the investigator. They stipulated that the investigator told Taylor he was not looking to arrest anyone and that he just wanted to retrieve the gun. Importantly, they also stipulated that there was no mention in Taylor's statement to police that Jones purchased the gun from him or the purchase price of the gun.

         The trial court denied the motion for new trial, finding that Jones's admission to the investigator that he purchased the gun was sufficient evidence of his possession of it; that Jones failed to show that his statement to police was involuntary such that the trial court would have suppressed the statement; and that Jones had not shown an actual conflict of interest on the part of his trial counsel. Additionally, although the trial court found that Taylor's statements to police should not have been admitted because they were hearsay and violated the Confrontation Clause, it concluded that the admission of this evidence was harmless. This appeal followed.

         1. In his first enumeration of error, Jones argues that the evidence was insufficient to support his conviction for possession of a firearm by a convicted felon because there was no evidence of actual or constructive possession, and his alleged confession was not corroborated, as required under OCGA § 24-8-823.[3] We disagree.

When evaluating the sufficiency of evidence, the proper standard of review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence. Moreover, a reviewing court must consider all of the evidence admitted by the trial court, regardless of whether that evidence was admitted erroneously.

(Citations and punctuation omitted.) Cunningham v. State, 304 Ga. 789, 791-792 (1) (822 S.E.2d 281) (2018).

         Under OCGA § 16-11-131 (b), it is unlawful for anyone who has a prior conviction for a felony to possess a firearm, absent express permissions that are not relevant here. Jones challenges only whether the evidence showed that he possessed the gun.

The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.

(Citation omitted.) Mask v. State, 309 Ga.App. 761, 763 (2) (711 S.E.2d 348) (2011). Here, it is undisputed that Jones was not in actual possession of the gun. Therefore, we consider whether the evidence was ...


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