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