text:
    A10A1742.
    HERNANDEZ v. THE STATE.
    (706 SE2d 627)
   BARNES, Presiding Judge.

A jury convicted Manuel Javier Hernandez of cocaine trafficking, misdemeanor obstruction of an officer, and reckless driving. This court previously affirmed the convictions but held that the trial court erred in failing to hold an in-camera hearing to determine whether the State was required to reveal to the defendant the identity of its confidential informant. Hernandez v. State, 291 Ga. App. 562, 571 (3) (662 SE2d 325) (2008). Absent such a hearing, “the currently existing facts of the case . . . required the disclosure of the informant’s identity,” and the failure to do so constituted error. Id. We remanded the case for the trial court to conduct a post-trial hearing and determine whether the error was harmless. Id. The trial court conducted an in-camera hearing with the confidential informant, and issued an order concluding that the State’s failure to reveal the informant’s identity to Hernandez was harmless error. For the reasons that follow, we affirm.

As described in our previous opinion, the evidence at trial showed that in April 2005, a confidential informant introduced an undercover officer to Hernandez and Flavio Garcia. Hernandez, 291 Ga. App. at 563. The men negotiated the purchase of five pounds of methamphetamine for $65,000, and Hernandez and Garcia left to obtain the drugs. Id. The confidential informant left the scene and was not present when Hernandez and Garcia returned, followed by another vehicle containing five pounds of methamphetamine. Hernandez, Garcia, and three other men were arrested for trafficking in methamphetamine. Id.

Before trial, Hernandez moved to require the State to reveal the identity of the confidential informant involved in the drug transaction. Hernandez, 291 Ga. App. at 568 (3). Following a hearing, the trial court denied the motion without conducting an in-camera hearing to determine whether the confidential informant’s testimony was material to the defense and if so, whether the defendant’s interest in knowing the identification outweighed the State’s interest in keeping it secret. Id. At trial, the undercover officer testified that the informant introduced him to Hernandez and Garcia, that he discussed the drug buy with and showed the money to both men, and that Hernandez said “he could do the five pounds.” Id. at 570. Garcia walked away and made a phone call, then returned to say he could obtain five pounds of methamphetamine with no problem, but would have to retrieve it from Atlanta, according to the agent. Id.

Hernandez, on the other hand, testified that he agreed to drive Garcia to Gainesville to pick up some things Garcia had left with his girlfriend. Hernandez, 291 Ga. App. at 569. They stopped at a fast food restaurant, where Garcia received a phone call from his “cousin,” who came with the undercover officer to a parking lot near the restaurant. Id. at 569-570. Hernandez testified that Garcia, the cousin, and the officer held a conversation far from Hernandez’s vehicle, where he could not overhear them. He testified that he was not present at or involved in any discussions about buying drugs. Id. at 569-570.

[T]he due process concept of fundamental fairness require[s] that the public interest in protecting the flow of information to law enforcement officials be balanced against the right of the accused to a full and fair opportunity to defend himself. Roviaro u. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1956).

Thornton v. State, 238 Ga. 160, 164 (2) (231 SE2d 729) (1977). Determining whether the State must reveal the identity of the confidential informant involves several steps. First, the defendant must make a showing (a) that the confidential informant allegedly participated in or witnessed the transaction and his testimony would be material to the defense on the issue of guilt or punishment; (b) that the informant’s testimony would be relevant because testimony from witnesses for the prosecution and the defense will be in conflict; and (c) that the informant’s testimony is necessary because he would be the only available witness who could amplify or contradict the testimony of these witnesses. Grant v. State, 230 Ga. App. 330, 331 (1) (496 SE2d 325) (1998).

If the defendant meets this threshold showing that the informant’s testimony could be relevant, material, and necessary, the second step is for the trial court to conduct an in-camera hearing to determine whether that initial showing is supported by the informant’s actual testimony. If the trial court determines, based on this hearing, that “neither the disclosure of the informant’s identity nor the contents of his testimony would benefit the defense or serve the discovery of truth,” then the inquiry ends and the State is not required to disclose the information. Gray v. State, 204 Ga. App. 33 (1) (418 SE2d 412) (1992). If, on the other hand, the trial court determines that the confidential informant’s testimony would lead to exculpatory evidence, then the trial court must balance the defendant’s right to defend himself against the State’s interest in encouraging the public to share information with law enforcement officials. Griffiths v. State, 283 Ga. App. 176, 177 (1) (641 SE2d 169) (2006); Little v. State, 230 Ga. App. 803, 810 (3) (498 SE2d 284) (1998).

We determined in the previous appeal of this case that Hernandez made the threshold showing that the informant’s testimony could be (a) relevant because he was a witness or participant in the drug transaction whose testimony would be material to guilt or innocence; (b) material because Hernandez’s testimony contradicted the undercover officer’s; and (c) necessary because the informant was the only other witness who could testify about Hernandez’s level of participation in the transaction. Hernandez, 291 Ga. App. at 570 (3). Given these facts, and absent an in-camera hearing with the confidential informant, we held that the State should have been required to disclose the informant’s identity and that the trial court erred in denying Hernandez’s motion. Id. at 571 (3). We remanded this case for the trial court to conduct an in-camera hearing with the confidential informant as described in Moore v. State, 187 Ga. App. 387, 392 (2) (370 SE2d 511) (1988), and determine if the denial of Hernandez’s motion was harmful error. Id.

In Moore, we explained that if an appellate court finds error because the trial court did not hold an in-camera hearing after a defendant made an initial showing that the confidential informant’s testimony was relevant, material, and necessary, on remand the trial court must hold an in-camera hearing with the informant to determine whether failure to disclose the informant’s identity was harmful error or not. Id. If the trial court determined during the course of the hearing that the informant’s testimony would corroborate the State’s evidence, the State would not have been required to disclose the informant’s identity to the defendant, and thus the failure to do so was harmless error. Id. “Conversely if, during the in-camera proceedings, the informant proves to be a material witness for the defense within the meaning of Roviaro and Thornton,” and Hernandez’s interest in knowing the informant’s identity would have outweighed the State’s interest in keeping that identity secret, then the failure to disclose the identity was harmful error. Id.

Upon remand in this case, the trial court conducted an in-camera hearing with the confidential informant to determine whether the failure to disclose his identity to Hernandez was harmful error, and concluded it was not. The trial court found that the informant testified under oath that a co-worker gave him the name and number of someone who sold drugs. The informant called the number and asked the man who answered whether he could deliver five pounds of methamphetamine to Hall County. The man on the phone, who was not Hernandez but another individual whom the informant had seen once before, agreed to meet the informant at a fast food restaurant and said he would arrive in a white Lincoln Navigator. The informant was with the undercover officer when a white Navigator arrived at the restaurant, and the informant and the officer got out of their vehicle to greet the two men who got out of the Navigator. The passenger was the individual the informant had seen once before.

The informant introduced the undercover officer as the methamphetamine buyer, and the driver talked to the officer in English about the transaction. After both the driver and the passenger examined the officer’s money, the driver returned to the Navigator and made a phone call, which the informant could not hear. After the call ended, the passenger said the men were going to retrieve the drugs from Atlanta and would meet the buyer later that day at the same location. Everyone left the parking lot, and the informant was not present when the men returned with the drugs. While the informant was unable at the hearing to identify either Hernandez or his co-defendant Garcia from photo lineups, or Hernandez from a single photo showup, he recognized Garcia from a single photo showup as the passenger in the Navigator whom he had seen once before.

The trial court thus found that the informant’s testimony sharply contradicted Hernandez’s testimony that he never talked to the undercover officer about a methamphetamine transaction, and substantially corroborated the officer’s testimony that Hernandez participated in negotiating the deal. Thus, disclosing the informant’s identity would not have given Hernandez access to any exculpatory evidence; to the contrary, the informant’s testimony was inculpatory. Therefore, the trial court concluded, the error in failing to grant Hernandez’s motion to disclose the informant’s identity was harmless.

Having reviewed the transcript of the in-camera hearing and the transcript of the trial, we find no error in the trial court’s ruling upon remand that the failure to disclose the confidential informant’s identity was harmless error because his testimony would not have helped Hernandez. Gray, 204 Ga. App. at 33 (1). While Hernandez makes much of the fact that the informant could not identify him from photographs as the Navigator’s driver, that fact is irrelevant considering that Hernandez himself testified that he had driven Garcia to the meeting. As in Grant v. State, 230 Ga. App. 330 (496 SE2d 325) (1998), and Ponder v. State, 197 Ga. App. 21, 23 (397 SE2d 596) (1990), the informant’s testimony in this case would have been cumulative and would have corroborated the undercover officer’s.

Accordingly, the trial court did not err in holding that the failure to disclose the confidential informant’s identity was harmless error.

Decided March 2, 2011

Brett M. Willis, for appellant.

Lee Darragh, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A10A1750.
    A10A1751.
    DAVENPORT v. THE STATE. WALSH v. THE STATE.
    (706 SE2d 757)
   Dillard, Judge.

Following a jury trial, co-defendants Mark Paul Davenport and William Gerald Walsh were convicted of possessing methamphetamine and an open container of alcoholic beverage in a motor vehicle. Davenport was also convicted of attempting to manufacture methamphetamine and three counts of possessing a firearm during the commission of a felony; however, Walsh was found not guilty on those charges. Because the charges against Davenport and Walsh arose from the same incident and set of facts, and because these two men were tried together, we have consolidated their separate appeals for review.

In Case No. A10A1750, Davenport appeals his convictions for attempt to manufacture methamphetamine, possession of methamphetamine, and possession of a firearm during the commission of a crime, contending that the evidence was insufficient to prove his guilt. Davenport also argues that he was denied effective assistance of counsel and that the trial court erred in denying his motions for directed verdict and a new trial on his claims.

In Case No. A10A1751, Walsh appeals his convictions for possession of methamphetamine and possession of an open container of alcoholic beverage in a motor vehicle, contending that the evidence was insufficient to support his convictions, and further that the trial court improperly commented on the issue of venue and the sufficiency of the evidence for the open-container violation, requiring reversal.

Viewed in the light most favorable to the verdict, the record shows that on the evening of May 23, 2008, a police officer observed a sport-utility vehicle (SUV) on 1-75 making erratic lane changes, following too closely, and failing to signal. The officer then positioned his patrol car behind the SUV and activated his vehicle’s emergency equipment. The SUV eventually maneuvered to the right side of the road, during which time the officer observed a good deal of movement in the back of the vehicle. This suspicious movement continued even after the vehicle came to a complete stop, prompting the officer to request backup assistance. Two additional officers responded to this request, and shortly thereafter, two officers approached the SUV( which contained Mark Paul Davenport, the driver; William Gerald Walsh, the front-seat passenger; and Edward Joseph Labretone, the back-seat passenger.

The officers observed that Davenport and Walsh were slow to answer their questions and had diminished fine-motor skills, slurred speech, as well as constricted pupils. The officers then requested and received consent from all three passengers to a search of their persons after exiting the vehicle; and as one of the officers prepared to search Labretone, two glass pipes consistent with drug use fell from his pants. The officer conducting the search of Labretone then found a clear plastic bag of white powder (later determined to be methamphetamine), three smaller plastic bags of white powder, and a small bag of marijuana. All three suspects were handcuffed after the discovery of this contraband. And while the officer declined to conduct a field-sobriety test on Davenport, Davenport did consent to a blood test that confirmed he was indeed under the influence of methamphetamine and several prescription drugs. Labretone later testified at trial that all three suspects were smoking methamphetamine just prior to the police stop and that he hid the contraband in his pants at Walsh’s request. An officer also testified that Labretone referred to Davenport and Walsh as “big time meth cookers.”

Once the suspects were secure, the officers searched the vehicle, which was owned by Davenport. The search produced the following items: two handguns, one of which was loaded and placed under the driver’s seat; a .22 caliber rifle with scope protruding from under the back seat; several knives, daggers, and machetes in the front seat; several cans of beer (some of which were open); one packet of antihistamine pills; a large pickle jar containing a Ziploc bag filled with a thick, clear liquid; and a suitcase containing two cans of kerosene, 100 to 200 double-A batteries, and small tubing of different lengths. Consistent with his training, one of the officers recognized the materials contained in the suitcase as being hazardous and regularly linked to the production of methamphetamine. Based on this recognition, the officer was instructed to secure the area and discontinue the search, which would later be completed by a specially trained narcotics unit.

At trial, the State presented expert testimony from a narcotics officer trained in investigating clandestine methamphetamine labs. This officer testified that when he and the other narcotics officers searched Davenport’s SUV for chemicals, they found the following items (all of which are consistent with the manufacture of methamphetamine): a pack of antihistamine pills; a gallon of drain cleaner; the pickle jar (containing an unidentified acid); two bottles of brake fluid; two bottles of starter fluid; two bottles of salt; two gallons of Coleman fuel; Ziploc bags; coffee filters; plastic jugs; bulk lithium batteries; rubber tubing; and two propane bottles. The officer also testified that while the items found in Davenport’s SUV were identified as components of a clandestine methamphetamine lab in shipment, a single pack of antihistamine pills would only produce a small amount of methamphetamine. Finally, the officer testified that the only missing ingredient from the materials found in Davenport’s vehicle was anhydrous ammonia, a controlled farm fertilizer. After the close of evidence, Davenport and Walsh were found guilty of the charges enumerated supra. These appeals follow.

1. We first address Davenport and Walsh’s claims that the evidence was insufficient to support their convictions. Discerning no error by the trial court, we affirm their respective convictions for the reasons set forth infra, and we hold that the trial court did not err in denying Davenport and Walsh’s motions for directed verdict or new trial.

When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. We do not weigh the evidence or determine witness credibility “but only determine whether a rational trier of fact could have found the defendants guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the jury’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” Additionally, “the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction.” With these guiding principles in mind, we will now address each of Davenport and Walsh’s respective enumerations of error.

(a) Attempt to Manufacture Methamphetamine. In Case No. A10A1750, Davenport contends that the evidence was insufficient to support his conviction for attempt to manufacture methamphetamine. Specifically, Davenport argues that the evidence was insufficient to support a finding that he took a substantial step toward committing the crime of manufacturing methamphetamine because (1) the officers did not locate all of the items necessary for the production of methamphetamine, (2) the items present each had a legal use, and (3) a single pack of antihistamine pills would only produce a small amount of methamphetamine. We disagree.

An individual commits the offense of attempt when, “with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” The act “must be more than mere preparation,” but it “can not accurately be said that no preparations can amount to an attempt.” The question, then, is one of degree, depending “upon the circumstances of each case.” This analytical framework properly shifts the focus from what the criminal defendant has not done to what he has already done, and it recognizes that a finding that substantial steps have already been taken by an individual toward the commission of a crime is in no way precluded by the fact that there remain additional steps to be taken before the crime can be completed. Additionally, while the act must generally be inexplicable as a lawful act, this requires only that “the act, in light of previous acts, constitutes a substantial step toward the commission of a crime,” not that the act itself be unlawful.

Here, Davenport was charged with and found guilty of attempting to manufacture methamphetamine by “transporting the chemicals, tools and supplies to manufacture the methamphetamine.” And the evidence presented at his trial showed that Davenport’s SUV contained most of the ingredients and components necessary for the clandestine manufacture of methamphetamine (some of which were in rather large quantities). Moreover, the State presented expert testimony that these items, when used together, indicate that methamphetamine is being produced. Further, the officers located methamphetamine in the vehicle, and Labretone told an officer that Davenport was a “big time meth cooker.” Finally, Davenport was found to have methamphetamine in his system. And while it is certainly true that “much of the evidence consisted of common household items,” these items in combination unquestionably “presented evidence of the [attempted] manufacture of methamphetamine.”

It is, of course, impossible for this Court to announce a bright-line rule or definitive checklist of the ingredients, components, and amounts that must be present to warrant a finding that substantial steps have been taken toward the manufacture of methamphetamine. Such determinations will and must be made on a case-by-case basis. And here, the jury was presented with sufficient evidence to infer that Davenport had taken a substantial step toward the manufacture of methamphetamine by transporting most of the chemicals, tools, and supplies necessary to commit that crime.

(b) Possession of Methamphetamine. In both Case Nos. A10A1750 and A10A1751, Davenport and Walsh contend that there was insufficient evidence to support their convictions for possession of methamphetamine. Specifically, Davenport argues that others had equal access to the methamphetamine and that the testimony of Labretone, an accomplice, was uncorroborated. Walsh similarly argues that his conviction was based solely upon the uncorroborated testimony given by Labretone. We find both arguments unavailing.

In Georgia, “it is unlawful for any person to . . . possess . . . any controlled substance[,]” and possession of controlled substances may be actual or constructive. Additionally, when a person not in actual possession of a controlled substance knowingly has the power and intention at a given time to exercise control or dominion over the contraband, he or she has constructive possession of same. A finding of constructive possession, then, must be based on a connection between the defendant and the object that is more than spatial proximity. And when constructive possession is established wholly on circumstantial evidence, “the law requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Finally, to warrant a conviction on such evidence, “the proved facts need exclude only reasonable hypotheses-not bare possibilities that the crime could have been committed by someone else.” Questions of reasonableness in this regard “are generally decided by the jury.” In sum, so long as there is slight evidence of access, power, and intention to exercise dominion or control over the contraband, the question of fact as to constructive possession remains with the jury.

And here, the evidence was sufficient to support both Davenport and Walsh’s convictions for possession of methamphetamine. First, Labretone testified that all three defendants were smoking methamphetamine inside the SUV prior to the police stop and had been doing so for approximately 30 minutes. Labretone also testified that he hid contraband&emdash;including a substance that tested positive for methamphetamine and the methamphetamine pipe that the defendants used — in his underwear at Walsh’s “request” because he was, rather misguidedly, “trying to do a good deed.”

More importantly, Labretone’s testimony was not uncorroborated as Davenport and Walsh claim. Rather, one of the investigating officers testified that he noticed a good deal of movement inside the vehicle after activating his emergency equipment and that such movement was consistent with the concealment of contraband. Additionally, the officer suspected that the vehicle’s occupants were under the influence of narcotics after observing that Davenport and Walsh were slow to answer questions and that they had diminished fine-motor skills, slurred speech, and constricted pupils. Indeed, Davenport’s blood tested positive for methamphetamine use. Thus, Labretone’s testimony was corroborated as to both Davenport and Walsh’s possession of methamphetamine.

Furthermore, while Davenport is correct that

[t]he equal access rule entitles a defendant to acquittal where (1) the sole evidence of his possession of contraband is his possession of a vehicle in which the contraband is found and (2) others had equal access to the part of the vehicle where the contraband was found . . . [,]

the rule is inapplicable when “all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of (the) contraband.” And here, as detailed supra, the evidence of Davenport’s alleged possession was not limited to his ownership of the SUV Additionally, all of the defendants were charged with jointly possessing methamphetamine. Thus, the evidence was sufficient for the jury to find Davenport and Walsh guilty of joint constructive possession of methamphetamine.

(c) Possession of a Firearm During the Commission of a Crime. In Case No. A10A1750, Davenport also contends that the evidence was insufficient to support his conviction for the possession of a firearm during the commission of a crime. We disagree.

It is a crime for a person to “have on or within arm’s reach of his or her person a firearm” during the commission of or attempt to commit a crime involving the felony possession of or manufacture of a controlled substance. And in the case sub judice, each defendant was charged with three counts of having a firearm “within arm’s reach of his person,” with the underlying crimes being the possession of methamphetamine and the attempt to manufacture methamphetamine. Because we have held that sufficient evidence existed to convict Davenport of possession of methamphetamine and the attempt to manufacture methamphetamine, his contention that “the evidence is insufficient to support. . . the underlying felonies” is without merit.

As to Davenport’s argument that there is insufficient evidence to prove possession of the firearm, this too is without merit. The “possession” specifically proscribed by OCGA § 16-11-106 (b) is the act of having “on or within arm’s reach of [one’s] person a firearm. . . ,” The phrase “within arm’s reach” eliminated “the narrow judicial reading given the provision formerly.” Indeed, “[b]y adding the words ‘within arm’s reach,’ the legislature extended the application of the statute to include weapons to which a felon had immediate access in addition to those weapons the felon actually had on his person.” And when a defendant is charged under this statute, the evidence is sufficient to sustain a conviction when it is shown at trial that a firearm was within arm’s reach of the defendant at any point during the commission of the crime, thus giving the defendant immediate access to the weapon. The jury may make such an inference from both circumstantial and direct evidence.

In this matter, the search of Davenport’s SUV produced two handguns halfway under Davenport’s seat in a partially unzipped case and a .22 caliber rifle with a scope protruding from under the back seat. Moreover, the jury had an opportunity to observe Davenport throughout the trial, “and they were authorized to determine from their observation whether the [weapons were] within his arm’s reach.” Thus, the jury was presented with sufficient evidence to find that Davenport was within arm’s reach of the three firearms during the commission of the crimes in question, such that he was in possession of them within the meaning of OCGA § 16-11-106 (b).

In reaching this conclusion, we pause to note that there appears to be considerable confusion surrounding the evidence necessary to sustain a conviction for violating OCGA § 16-11-106 (b). This confusion appears to have been caused, in part, by imprecise language employed by this Court in many of our prior opinions (or the lack of any discussion whatsoever in those decisions of the relevant statutory language), and is further borne out by the arguments presented in the case sub judice by both Davenport and the State. Indeed, Davenport and the State largely strayed from addressing the relevant question of whether the evidence supported a finding that the firearms were within arm’s reach of Davenport during the commission of the crimes at issue. Davenport cites In the Interest of M. J. H in arguing that the State did not prove actual or constructive possession of a firearm, but that case dealt with a lack of proof of actual or constructive possession of the contraband prohibited by the underlying crime. Specifically, the State in M. J. H. failed to prove that the defendant had joint constructive possession of drugs, and thus, the Court had no need to analyze whether the defendant possessed a firearm during the commission of the underlying crime. In response, the State quotes OCGA § 16-11-106 (b) but then argues that “[a]s with possession of methamphetamine, possession of a firearm during the commission of a crime can be either actual or constructive!,]” citing only Cabrera v. State, Williams v. State, and Respress v. State. However, these cases concern constructive possession and the equal-access rule in the context of drug possession, not the possession of a firearm during the commission of a crime. And while the State did note that the firearms were within arm’s reach of Davenport during the commission of the crimes in question, the case law relied upon by the State was entirely misplaced.

Given this apparent confusion, we reiterate that “possession” of a weapon for purposes of OCGA § 16-11-106 (b) is specifically delineated in the statute: The evidence must show that while committing or attempting to commit one of the specified crimes, one or more of the specified weapons was either on the defendant’s person or within arm’s reach of his person. The inclusion of “within arm’s reach” in OCGA § 16-11-106 (b) defines constructive possession for purposes of this statute and makes the proof of possession for purposes of the statute narrower than the proof sufficient to establish constructive possession of contraband or weapons in other contexts. And to the extent that any of our prior opinions can possibly be read as suggesting otherwise, those decisions are of no precedential utility in construing and applying the plain meaning of OCGA § 16-11-106 (b).

(d) Possession of Open Container of Alcoholic Beverage. In Case No. A10A1751, Walsh contends that there was insufficient evidence to support his conviction for possessing an open container of alcoholic beverage in a motor vehicle. According to Walsh, the State failed to prove that he either consumed alcohol in the SUV or that he possessed the alcohol found in the SUV

A person violates OCGA § 40-6-253 (b) by either consuming an alcoholic beverage or by possessing an open alcoholic-beverage container in the passenger area of a vehicle on a roadway or shoulder of a public highway. “Passenger area” is defined as “the area designed to seat the driver and passengers while a motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in his or her seating position.” Specifically excluded from the definition of “passenger area” are locked glove compartments and, in vehicles that do not have trunks, the area behind the rearmost upright seat. “Open alcoholic beverage container” is defined as any bottle, can, or other receptacle that contains any amount of alcoholic beverage and has an open or broken seal or has had its contents partially removed.

Here, the defendants were charged with “knowingly possessing] an open alcoholic beverage container in the passenger area of a motor vehicle on the roadway of a public highway.” Davenport’s SUV had front-bucket seats, a rear-bench seat, and a cargo area. When officers initially searched the SUy one discovered a cooler in the back seat that contained empty cans of beer and one or two half-consumed cans. The officer admitted that he could not tell who drank the open cans of beer or when they were consumed, and there were no field-sobriety tests conducted at the scene out of fear for the safety of the vehicle’s occupants and the officers. However, both Davenport and Walsh were observed as having slurred speech and diminished fine-motor skills, and as being slow to respond to questions.

As previously stated, on a challenge to the sufficiency of the evidence, we do not determine the credibility of witnesses or weigh evidence; this is within the province of the jury. Our sole consideration on appeal is whether a rational trier of fact could have found Walsh guilty of violating Georgia’s open-container law beyond a reasonable doubt. And because there is some competent evidence— though it may be contradicted—to support a finding that Walsh committed the charged offense, we will not overturn the jury’s verdict. In sum, by showing circumstantially that each of the defendants (including Walsh) had equal access to the cooler in the back seat, the State was able to support its theory that all of the defendants were guilty of joint constructive possession of the open containers.

2. Ineffective Assistance of Counsel. In Case No. A10A1750, Davenport claims he received ineffective assistance of counsel in that his attorney at trial (1) failed to adequately investigate the case; (2) failed to interview a witness; (3) failed to object to expert qualification to identify clandestine methamphetamine labs; (4) failed to object to testimony regarding the effect of a combination of drugs on driving ability and to expert testimony on the effect of drug use on driving ability; (5) failed to object to hearsay, as well as speculative and irrelevant testimony; and (6) failed to preserve unspecified issues for appeal.

To prevail on his claim of ineffective assistance of counsel, Davenport “must show that counsel’s performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” There is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. And unless clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel. A trial court’s legal conclusions in this regard, however, are reviewed de novo. With these principles in mind, we will address each of Davenport’s claims in turn.

(a) Adequacy of Investigation. Davenport contends that his trial counsel conducted an inadequate investigation of his case. To prepare for Davenport’s defense, his trial counsel testified that he filed the standard discovery, interviewed all the police officers, interviewed Davenport, spoke to counsel for Walsh and Labretone, examined all police and medical-lab reports, and observed the SUV in person. According to defense counsel, he also obtained “extensive discovery and . . . was happy with the magnanimity of the State by giving [him] a lot of discovery and very good notes.” When questioned as to why he did not hire his own investigator, defense counsel testified that he received more information from the State than in other cases, that the information was “very, very complete” and “replete . . . with everything that [he] thought [he] needed to go forward[,]” and it was more than he actually wanted.

Given the foregoing, we find that Davenport has failed to establish that his trial counsel conducted an inadequate investigation into his case. In evaluating claims of ineffective assistance of counsel, “[t]he test has nothing to do with what the best lawyers would have done” or “what most good lawyers would have done,” but “only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted.” There is, then, no magic amount of time that must be spent preparing for trial to provide a client with an adequate investigation. And in the case sub judice, Davenport has failed to demonstrate that his trial counsel performed deficiently in conducting an adequate investigation of his case.

(b) Exploration of Witnesses. Davenport also contends that his trial counsel was ineffective in failing to investigate Angie Delafaye as a potential defense witness. In this respect, defense counsel testified below that he and Delafaye, a friend of Davenport’s, “had kind of an on-going conversation” and that she was “very religious” about calling him multiple times each week, staying in “constant contact.” Both Davenport and Delafaye observed the SUV with trial counsel, and both were included in a discussion about the strategy of the case, which was the theory that the items in the SUV were for a camping trip in Tennessee. And while there was some suggestion by appellate counsel that Delafaye could have testified to being with Davenport the day before the arrest, trial counsel testified that he doubted Delafaye “would have been very fruitful as a witness[,]” that she “was very emotionally involved[,]” and that he “could not see any benefit... to [putting] her on the witness stand” because she had not been in the SUV during the incident. As such, trial counsel admitted that he did not explore Delafaye as a witness because of her emotional involvement and high-strung nature.

Suffice it to say, the determination as to which defense witnesses will be called is purely a matter of trial strategy and tactics, and “[t]rial strategy and tactics do not equate with ineffective assistance of counsel.” And while trial counsel may not have formally investigated Delafaye, his communication with her was considerable, and he determined that she would not be a favorable witness for Davenport. As such, trial counsel’s decision not to further explore Delafaye as a defense witness clearly falls within the realm of trial strategy and tactics and did not render his assistance ineffective.

(c) Expert Qualification in Clandestine Labs. Davenport further argues that his trial counsel was ineffective in failing to object to “the qualification of law enforcement officers to testify as experts in the identification of clandestine labs or methamphetamine labs.” Specifically, Davenport claims that his trial counsel admitted that he did not research the “requisite qualifications for an expert in clandestine labs and what such testimony should entail.” Davenport fails, however, to offer any evidence or argument as to how the officers’ qualifications were inadequate.

In order to qualify as an expert, “generally all that is required is that a person be knowledgeable in a particular matter,” and “his special knowledge may be derived from experience as well as study, and formal education in the subject is not a requisite for expert status.” Here, trial counsel did object to testimony by the officer who identified chemicals found in the SUV as being consistent with the production of methamphetamine, after which the prosecution elicited testimony that the officer, in addition to his academy training in hazardous materials, had attended a 40-hour drug-identification course to identify narcotics and the hazardous materials used to produce narcotics. The officer also testified that the items found in the SUV were consistent with what he had seen through experience and training as being used to manufacture methamphetamine.

As to the member of the narcotics unit, he testified to having basic narcotics training in identifying methamphetamine, crime-lab training, training with the DEA’s Clandestine Lab School, and local clandestine lab training, and to investigating approximately ten to fifteen clandestine methamphetamine lab scenes. While trial counsel was given an opportunity to conduct voir dire of this witness prior to him being admitted as an expert, counsel testified that he probably would not have objected to this officer being qualified as an expert in clandestine labs “for fear that [the prosecutor] would get up and further bolster this witness and make it even worse.” Given the foregoing, trial counsel’s conduct in this regard was not unreasonable and did not rise to the level of ineffective assistance of counsel. Specifically, trial counsel’s decisions not to object further or object in the first instance to the qualifications of these experts were strategic decisions that we will not second-guess on appeal.

(d) The Effect of Drugs on Driving Ability. Davenport also maintains that his trial counsel’s failure to object to expert testimony regarding the combination of drugs and their effect on his system rendered his performance ineffective as a matter of law. We disagree.

While trial counsel initially objected to this testimony, and later testified that a follow-up objection would have been pertinent, this fact is of no consequence. Even if we assume that trial counsel’s failure to further object to this testimony was unreasonable, Davenport has not demonstrated that this alleged failure on his counsel’s part prejudiced the outcome of the trial. Indeed, there was additional evidence from which the jury could have convicted Davenport of the offense of driving under the influence of drugs—specifically, his positive drug test for methamphetamine and other substances, and the unusual mental and physical characteristics he exhibited, as observed by the officer following the traffic stop. Accordingly, Davenport has failed to meet the burden of proving ineffective assistance of counsel on these claims.

(e) Hearsay, Speculation, Irrelevance, and Preservation of Errors. As to Davenport’s final claims that trial counsel rendered ineffective assistance by failing to object to hearsay testimony, speculative testimony, and irrelevant evidence, and by failing to preserve issues for appeal, these claims are deemed abandoned because Davenport does not support them with argument or citation to authority, and “mere conclusory statements are not the type of meaningful argument contemplated” by Court of Appeals Rule 25 (a) (3).

3. Trial Court’s Comments Regarding Venue and Open Container. Finally, in Case No. A10A1751, Walsh contends that the trial court committed error by improperly commenting on the issue of venue and the sufficiency of the evidence on the open-container charge, thereby invading the province of the jury. We disagree.

Outside the presence of the jury, and after both the State and the defense had rested, the trial judge expressed her belief that venue had not been established in the case and that she was unsure as to whether there was sufficient evidence on the open-container charge.

Venue, of course, is a jurisdictional fact that must be proven by the State beyond a reasonable doubt in order to establish that the alleged crimes were committed in the county where the case is being tried. And here, the State, upon hearing the trial judge’s concerns about venue, requested permission to reopen the case for the purpose of establishing same. This request was granted without objection, the jury returned, and one of the officers testified to seeing and stopping the SUV in Clayton County. Thereafter, the question of venue and the open-container charge were both submitted to the jury, and the court instructed the jury as to the State’s burden of proof.

As for Walsh’s contention, it is improper for a judge in any criminal case, “during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” Indeed, a violation of this rule is an error that requires reversal and the grant of a new trial. Nevertheless, while a judge may not express an opinion or intimate to the jury what has or has not (in his or her view) been proven, it is well established that the purpose of this limitation “is to prevent the jury from being influenced, not to keep the judge from making up his [or her] own mind.”

Decided March 2, 2011

Cinque M. Axam, for appellant (case no. A10A1750).

Mack & Harris, Robert L. Mack, Jr., for appellant (case no. A10A1751).

Tracy Graham-Law son, District Attorney, Anece Baxter White, Assistant District Attorney, for appellee.

And in the case sub judice, the trial judge’s comments about venue and the open-container charge were not error because they were made outside the jury’s presence, the case was reopened without any reference to the judge’s opinion, and the questions were then presented to the jury. There is, then, no indication that the judge’s comments in any way influenced (or even could have influenced) the jury. As such, the trial judge’s comments did not violate OCGA § 17-8-57. Additionally, the trial court committed no error by allowing the State to reopen the case to establish venue.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       Additionally, Davenport was found guilty of driving under the influence of methamphetamine and two counts of improper lane change, although he does not challenge those convictions on appeal.

       We note that any inconsistencies in the jury’s verdicts between the co-defendants have no bearing on our review of the appellants’ claims because the inconsistent-verdict rule has been abolished in Georgia. See Parker v. Mooneyham, 256 Ga. 334, 335 (349 SE2d 182) (1986) (holding that the principles applicable to inconsistent verdicts against one defendant are applicable to inconsistent verdicts between co-defendants), overruled on other grounds by State v. Freeman, 264 Ga. 276 (444 SE2d 80) (1994); see also Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986) (adopting the reasoning of United States v. Powell, 469 U. S. 57 (105 SC 471, 83 LE2d 461) (1984), in abolishing the inconsistent-verdict rule in Georgia).

       When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010); Lott v. State, 303 Ga. App. 775, 775 (1) (694 SE2d 698) (2010).

       Labretone originally faced the same charges as Walsh, but he testified for the State at trial and agreed to plead guilty to a charge of possession of methamphetamine.

        See, e.g., English, 301 Ga. App. at 842; Lott, 303 Ga. App. at 775 (1).

        Lott, 303 Ga. App. at 776 (citing Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979)); see also English, 301 Ga. App. at 842.

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted) (quoting Peek v. State, 247 Ga. App. 364, 365 (1) (542 SE2d 517) (2000)).

        Lott, 303 Ga. App. at 776 (punctuation omitted) (quoting Terry u. State, 293 Ga. App. 455, 455 (667 SE2d 109) (2008)).

       OCGA § 16-4-1.

        English, 301 Ga. App. at 843 (punctuation omitted) (quoting Dennard v. State, 243 Ga. App. 868, 871 (1) (a) (534 SE2d 182) (2000)).

        Id. (punctuation omitted) (quoting Dennard, 243 Ga. App. at 871 (1) (a)).

        Id.; Smith v. State, 189 Ga. App. 27, 29 (1) (375 SE2d 69) (1988).

        English, 301 Ga. App. at 843; Smith, 189 Ga. App. at 30 (1).

        Dennard, 243 Ga. App. at 871-72 (1) (a).

        Miller v. State, 298 Ga. App. 792, 793 (1) (681 SE2d 225) (2009).

        See Ogburn v. State, 296 Ga. App. 254, 254-55 (674 SE2d 101) (2009) (affirming conviction for attempted manufacture of methamphetamine based on, inter alia, discovery of fourteen bags of methamphetamine, ten cans of starter fluid, and 1,080 pseudoephedrine pills); Kohlmeier v. State, 289 Ga. App. 709, 711 (658 SE2d 261) (2008) (affirming conviction for attempted manufacture of methamphetamine based on, inter alia, discovery of a box of pseudoephedrine, two bottles of Heet fuel treatment, a Coleman stove, a can of kerosene, and a bulk of matches with red phosphorous); Womble v. State, 290 Ga. App. 768, 768-71 (660 SE2d 848) (2008) (affirming conviction for attempted manufacture of methamphetamine based on discovery of methamphetamine oil, iodine crystals, used coffee filters, and hypodermic needle); see also Edwards v. State, 306 Ga. App. 713, 714-15 (703 SE2d 130) (2010); Miller, 298 Ga. App. at 793; Boone v. State, 293 Ga. App. 654, 654-57 (667 SE2d 880) (2008); Wesson v. State, 279 Ga. App. 428, 429-30 (1) (631 SE2d 451) (2006); Murrell v. State, 273 Ga. App. 735, 735-37 (1) (615 SE2d 780) (2005); Bilow v. State, 262 Ga. App. 850, 851-52 (586 SE2d 675) (2003); Query v. State, 217 Ga. App. 61, 61-63 (456 SE2d 704) (1995).

       OCGA § 16-13-30 (a).

        Prather v. State, 293 Ga. App. 312, 313 (1) (667 SE2d 113) (2008); Singleton v. State, 194 Ga. App. 5, 5 (389 SE2d 496) (1989).

        Prather, 293 Ga. App. at 313 (1); Singleton, 194 Ga. App. at 5-6.

        Prather, 293 Ga. App. at 313 (1); In the Interest ofM. J. H., 193 Ga. App. 621, 623 (1) (388 SE2d 738) (1989).

        Prather, 293 Ga. App. at 313 (1) (punctuation omitted) (quoting Hodges v. State, 277 Ga. App. 174 (626 SE2d 133) (2006)).

        Id. (punctuation omitted) (quoting Jackson v. State, 284 Ga. App. 619, 620 (1) (644 SE2d 491) (2007)); see also In the Interest of M. J. H., 193 Ga. App. at 623 (1). The word “hypothesis” refers “to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life.” Prather, 293 Ga. App. at 313 (1) (punctuation omitted) (quoting Smith v. State, 197 Ga. App. 609, 611 (398 SE2d 858) (1990)).

        Prather, 293 Ga. App. at 313 (1) (punctuation omitted).

       Id.

        See OCGA § 24-4-8. In felony cases “where the only witness is an accomplice, the testimony of a single witness is not sufficient” to establish a fact. Id. However, “corroborating circumstances may dispense with the necessity for the testimony of a second witness. . . .’’Id.', see also Parkerson v. State, 265 Ga. 438, 439 (2) (457 SE2d 667) (1995) (stating that even slight evidence of corroboration is enough, and this evidence may be circumstantial, including a defendant’s conduct before and after a crime).

       There is no indication that Walsh was subjected to a blood test, but the record suggests that Davenport was tested because he was suspected of driving under the influence.

        Respress u. State, 267 Ga. App. 654, 655 (1) (600 SE2d 727) (2004) (citation and punctuation omitted). “The [equal-access] rule functions as a defense available to the accused to whom a presumption of possession flows by reason of his ownership or control of the premises where contraband was found.” Daugherty v. State, 283 Ga. App. 664, 668 (3) (642 SE2d 345) (2007). See generally Farmer v. State, 152 Ga. App. 792, 794-97 (264 SE2d 235) (1979) (providing in-depth explanation for proper application of the equal-access rule to rebut presumption of possession).

        Ramirez v. State, 290 Ga. App. 3, 4-5 (1) (658 SE2d 790) (2008) (“[When] the driver and passengers are charged with joint constructive possession of contraband found in the vehicle, the state may rely on the presumption to show that the driver exercised possession and control over the contraband, but the driver is not entitled to rely on the equal access rule to rebut the presumption.”); see also Davis v. State, 270 Ga. App. 777, 779 (1) (607 SE2d 924) (2004) (“[T]he equal access rule, conceptually and historically, has no application where, as here, all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of that contraband.” (citation and punctuation omitted)).

       OCGA § 16-11-106 (b) (4).

       OCGA § 16-11-106 (b) (emphasis supplied). Cf. White v. State, 203 Ga. App. 889, 891 (3) (418 SE2d 149) (1992) (stating that the type of possession is specifically proscribed with reference to the possession of a knife during the commission of certain crimes).

        Singleton, 194 Ga. App. at 6. Before 1987, the statute
      provided that someone charged under this Code section had to “have on his person a firearm or knife . . . during the commission of, or the attempt to commit,” a felony. In 1987, however, the statute was amended “so as to clarify that such firearm or knife must be on or within arm’s reach of the person.”

        Carswell v. State, 251 Ga. App. 733, 735 (1) (b) (555 SE2d 124) (2001) (omission in original) (footnotes omitted). See generally McIntosh v. State, 185 Ga. App. 612, 615 (5) (365 SE2d 454) (1988) (reversing conviction when defendant had firearm within arm’s reach but not on his person, and defendant committed crime prior to the effective date of the amendment adding the “within arm’s reach” language to statute); Beal v. State, 175 Ga. App. 234, 238-39 (4) (333 SE2d 103) (1985) (reversing conviction when there was no evidence that firearm found near defendant was on defendant’s person during commission of the crime).

        Carswell, 251 Ga. App. at 735 (1) (b) (emphasis supplied).

        See Curry v. State, 238 Ga. App. 511, 522 (5) (c) (519 SE2d 269) (1999); see also Humphreys v. State, 253 Ga. App. 344, 346 (559 SE2d 99) (2002) (noting that final element of the crime “require[s] proof only that [the defendant] was even momentarily within arm’s reach of the gun” (citation and punctuation omitted)); Gibson v. State, 223 Ga. App. 103, 103 (1) (476 SE2d 863) (1996) (same).

        See Clyde v. State, 298 Ga. App. 283, 285-86 (2) (680 SE2d 146) (2009) (“[The defendant’s] conviction cannot be sustained unless there was evidence that he had immediate access to the weapon. . . .”); Carswell, 251 Ga. App. at 736 (“[I]mmediate access to the weapon ... is required to sustain a conviction under OCGA § 16-11-106 (b).”).

        Compare Carswell, 251 Ga. App. at 735-36 (1) (b) (holding that circumstantial evidence was insufficient to sustain conviction when firearm was inside a zippered compartment of a suitcase, “which could have been zipped the entire time [the defendant] was in possession of. . . cocaine”) with Gibson, 223 Ga. App. at 103 (1) (holding that jury could “consider the evidence concerning the small size and crowded conditions within the residence and infer that it was inevitable” that defendant passed even momentarily within arm’s reach of a firearm hidden under a couch that was positioned behind a coffee table containing cocaine).

        Copeland v. State, 228 Ga. App. 734, 736 (1) (492 SE2d 723) (1997), declined to follow on other grounds, Weems v. State, 269 Ga. 577, 579 (2) & n.2 (501 SE2d 806) (1998). Cf. Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010) (holding, inter alia, that a jury may consider a defendant’s appearance at trial in conjunction with the evidence submitted at trial in order to resolve conflicts in the testimony presented).

        See Martinez v. State, 303 Ga. App. 166, 168 (692 SE2d 766) (2010) (affirming conviction when “[t]he handgun was in arm’s reach of where [the defendant] had been sitting in the passenger seat”); Hall v. State, 283 Ga. App. 266, 266-68 (641 SE2d 264) (2007) (affirming conviction when firearms were found within arm’s reach of drugs); Carter u. State, 248 Ga. App. 821, 822 (1) (b) (547 SE2d 613) (2001) (stating that “evidence that the revolver was found under the floor mat where [the defendant] was sitting authorized the trier of fact to find him guilty” of violating OCGA § 16-11-106 (b) by having a firearm within arm’s reach); Smith v. State, 214 Ga. App. 631, 633 (4) (448 SE2d 906) (1994) (affirming conviction when firearm in truck’s rear window was within arm’s reach of defendant during commission of sexual assault). Compare Williams v. State, 279 Ga. App. 83, 85 (2) (630 SE2d 601) (2006) (reversing conviction because gun’s location within arm’s reach could only be established by hearsay testimony).

       Some of our prior cases make no mention of the “within arm’s reach” component of the statute. See Boone, 293 Ga. App. at 654-57 (upholding conviction without addressing whether evidence was sufficient to find that defendant was within arm’s reach of firearm while committing underlying crimes); Howard v. State, 291 Ga. App. 289, 289-91 (1) (661 SE2d 644) (2008) (same); Lopez v. State, 259 Ga. App. 720, 721-22 (1) (578 SE2d 304) (2003) (upholding conviction when passenger in car was “in joint constructive possession” because he was “in a position to see the pistol. . . [in] the glove box”); Taylor v. State, 263 Ga. App. 420, 420-22 (1) (587 SE2d 791) (2003) (upholding conviction for pistol found under driver’s seat but without analysis of the “within arm’s reach” component). Others appear to muddle the evidence necessary to find “possession” under OCGÁ § 16-11-106 (b) with that sufficient to sustain a conviction for possessing drugs or for possessing a weapon in other contexts. See Daugherty, 283 Ga. App. at 667-68 (1) (b) (upholding conviction for possession of firearm while committing felony and for possession of firearm by a convicted felon but only applying the constructive-possession standard that is sufficient to support the latter type of criminal possession); Allen v. State, 286 Ga. App. 469, 470 (1) (649 SE2d 583) (2007) (upholding conviction under OCGA § 16-11-106 (b) by applying the standard of joint constructive possession that is applicable to other contraband); Humphreys, 253 Ga. App. at 345-46 (upholding conviction under OCGA § 16-11-106 (b) with mention of “within arm’s reach” component as the “final element” of crime, but first stating that “possession of the firearm was established by [defendant’s] dominion over his vehicle”); Brown v. State, 244 Ga. App. 440, 442 (2) (535 SE2d 785) (2000) (upholding conviction by applying joint constructive possession standard). Still others appear to sustain convictions for OCGA § 16-11-106 (b) under OCGA § 16-2-20 (which provides that a “person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime”), but these cases directly cite only OCGA § 16-11-106 (b) and curiously make no direct mention of OCGA § 16-2-20. See Lopez, 259 Ga. App. at 721-22 (mentioning co-defendant’s access to weapon); Cassie v. State, 192 Ga. App. 484, 484-86 (4) (385 SE2d 129) (1989) (upholding conviction under OCGA § 16-11-106 (b) against defendant “as a party to the acts of co-defendant” when co-defendant carried a handgun on his person). But see Driscoll v. State, 295 Ga. App. 5, 8 (1) (b) (670 SE2d 824) (2008) (“[B]ecause Whaley was also within arm’s reach of two handguns during the commission of the felony drug offenses, Driscoll is guilty of Whaley’s handgun possession offenses as a party to the crime.” (citing OCGA § 16-2-20)); Victrum v. State, 203 Ga. App. 377, 379-80 (3) (416 SE2d 740) (1992) (“Defendant’s co-defendant was within arm’s length of two pistols during the commission of the crime; therefore, defendant is guilty of the offense as a party to the crime.” (citing OCGA § 16-2-20)). Our own Supreme Court has even been less than precise on this particular point. See Hill v. State, 276 Ga. 220, 221 (3) (576 SE2d 886) (2003) (holding that “[ejvidence that the defendant or an accomplice either carried or was within arm’s length of a weapon during the commission of a crime authorizes a finding of guilt of violating OCGA § 16-11-106 (b),” but in doing so citing to Tesfaye v. State, 275 Ga. 439, 440 (1) (569 SE2d 849) (2002) and Victrum, 203 Ga. App. at 379 (3), both of which explicitly relied upon OCGA § 16-2-20 in upholding the convictions of accomplices (emphasis supplied)).

       193 Ga. App. 621 (388 SE2d 738) (1989).

        See id. at 623-24.

        See id.

       303 Ga. App. 646, 651 (1) (694 SE2d 720) (2010).

       303 Ga. App. 222, 225 (2) (692 SE2d 820) (2010).

       267 Ga. App. 654, 654 (1) (600 SE2d 727) (2004).

        See Cabrera, 303 Ga. App. at 651-52 (1) (discussing the equal-access rule and constructive possession of methamphetamine found in a vehicle); Williams, 303 Ga. App. at 224-26 (2) (discussing the equal-access rule and constructive possession of marijuana found in a house); Respress, 267 Ga. App. at 654-55 (1) (discussing the equal-access rule and constructive possession of cocaine found in a vehicle).

        See OCGA § 16-11-106 (b).

        See, e.g., OCGA § 16-11-131 (b) (making it unlawful for convicted felons to receive, possess, or transport firearms); OCGA § 16-11-132 (b) (“[I]t shall be unlawful for any person under the age of 18 years to possess or have under such person’s control a handgun.”); OCGA § 16-13-30 (a) (making it unlawful to “purchase, possess, or have under . . . control any controlled substance”). See generally In the Interest of C. M., 290 Ga. App. 788, 791-92 (2) (661 SE2d 598) (2008) (analyzing traditional constructive possession in sustaining conviction for possession of a firearm by a person under 18); Simpson v. State, 213 Ga. App. 143, 145 (3) (444 SE2d 115) (1994) (analyzing traditional constructive possession and stating that this type of possession is sufficient to sustain conviction for possession of a firearm by a felon); Cantrell v. State, 204 Ga. App. 330, 331-32 (419 SE2d 141) (1992) (analyzing traditional constructive possession in sustaining conviction for possession of firearm by a felon and possession of cocaiffe See 48

         Seesupra note 38.

       OCGA § 40-6-253 (b) (1).

       OCGA § 40-6-253 (a) (3).

        Id.

       OCGA § 40-6-253 (a) (2); see Kalb v. State, 276 Ga. App. 394, 395 (1) (623 SE2d 230) (2005) (sufficient evidence for conviction when empty bottle of beer found in car but occupant admitted to drinking beer while driving); Yates v. State, 263 Ga. App. 29, 30 (1) (587 SE2d 180) (2003) (sufficient evidence for conviction when officer testified to finding “open bottle of beer” on front seat).

        See Lott, 303 Ga. App. at 776 (citing Jackson, 443 U. S. at 319 (III) (B)); see also English, 301 Ga. App. at 842.

        See Miller, 273 Ga. at 831.

        See Warren u. State, 254 Ga. App. 52, 53-54 (1) (561 SE2d 190) (2002); Castillo v. State, 166 Ga. App. 817, 822 (2) (305 SE2d 629) (1983).

        Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

        Chapman, 273 Ga. at 350 (2).

        Id.; Henderson v. State, 303 Ga. App. 898, 898 (1) (695 SE2d 334) (2010).

         Henderson, 303 Ga. App. at 898 (1).

        Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010) (citation and punctuation omitted).

        See Benefield v. State, 231 Ga. App. 80, 81 (497 SE2d 650) (1998) (stating further that “fe]ach case must be judged upon its own circumstances and in light of its own degree of complexity”).

        Henderson, 303 Ga. App. at 901 (1) (c) (citation and punctuation omitted).

        See Keanum v. State, 212 Ga. App. 662, 663-64 (3) (442 SE2d 790) (1994) (stating further that “Telrrors in judgment and tactical errors do not constitute denial of effective assistance of counsel”).

        Murrell, 273 Ga. App. at 739 (3) (citation and punctuation omitted) (noting, too, that expert qualification is within the sound discretion of the trial court).

        See Nesbitt v. State, 296 Ga. App. 139, 142 (3) (d) (673 SE2d 652) (2009) (“Decisions regarding when and how to raise objections are generally matters of trial strategy).!”).

         We note that Davenport makes no contention that there was insufficient evidence to sustain his conviction for driving under the influence of drugs to the extent that it was less safe to drive.

        See Towry v. State, 304 Ga. App. 139, 147 (2) (e) (695 SE2d 683) (2010) (in claiming that defense counsel should have objected to testimony, defendant “failed to show how the . . . witnesses’ responses prejudiced him in any way and so he Icould not] succeed on this ineffective assistance claim”).

        Id. at 148 (2) (g) n.7 (citation and punctuation omitted); see Ct. App. R. 25 (a) (3) (requiring appellants to provide argument and citation to authority).

         See, e.g., Jones u. State, 272 Ga. 900, 901 (2) (537 SE2d 80) (2000); Payne v. State, 290 Ga. App. 589, 589-90 (2) (660 SE2d 405) (2008).

       OCGA § 17-8-57.

        Id.

         Id.; see Thomas v. State, 240 Ga. 393, 400 (3) (242 SE2d 1) (1977); O’Hara v. State, 241 Ga. App. 855, 859 (3) (528 SE2d 296) (2000). However, “remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” Johnson v. State, 246 Ga. 126,128 (V) (269 SE2d 18) (1980); see also Cochran v. State, 136 Ga. App. 125, 127 (3) (220 SE2d 477) (1975). Additionally, the Supreme Court of Georgia recently held that
        questioning whether an element has been proven is not error even when made before the jury. See State v. Gardner, 286 Ga. 633, 634-35 (690 SE2d 164) (2010) (holding that judge’s statement before jury to “Prove venue. Did you prove venue? . . . Why don’t we go ahead and do that before we forget.” was not error), reversing Gardner v. State, 296 Ga. App. 792 (676 SE2d 258) (2009).

        Jones v. State, 250 Ga. 498, 499-500 (4) (299 SE2d 549) (1983); see O’Hara, 241 Ga. App. at 859 (3); Wilcox v. State, 236 Ga. App. 235, 236 (1) (511 SE2d 597) (1999).

        Compare Mitchum v. State, 274 Ga. 75, 76 (4) (548 SE2d 286) (2001) (not error forjudge to state an opinion about a witness outside presence of jury); Green v. State, 240 Ga. App. 774, 777 (2) (525 SE2d 154) (1999) (no error when judge stated that burden of proof was met on an issue but did so outside presence of jury and submitted question to jury); Moore v. State, 179 Ga. App. 488, 489 (4) (347 SE2d 318) (1986) (comment made outside jury’s presence was not prejudicial); and Hall v. State, 151 Ga. App. 700, 700-01 (1) (261 SE2d 442) (1979) (comment during bench conference that weight of marijuana had not been proven was not error because outside presence of jury); with Patel v. State, 282 Ga. 412, 4Í4 (2) (651 SE2d 55) (2007) (comment before the jury as to proof of venue was error); Callaham v. State, 305 Ga. App. 626, 627-28 (1) (700 SE2d 624) (2010) (judge’s comment before jury regarding witness’s credibility was error).

        See, e.g., Dandy u. State, 238 Ga. App. 435, 435 (2) (518 SE2d 907) (1999) (‘‘It is within the trial court’s discretionary power to permit the state to reopen its case after the close of evidence and to introduce further evidence.”); Thompson v. State, 175 Ga. App. 645, 646 (1) (b) (334 SE2d 312) (1985) (“It is within the trial court’s discretionary power to reopen a case and permit the introduction of further evidence even though the testimony is not in rebuttal of evidence offered by defendant.”).


author: BLACKWELL, Judge.

text:
    A10A2082.
    IN THE INTEREST OF C. B., a child.
    (706 SE2d 752)
   BLACKWELL, Judge.

Following an evidentiary hearing, the juvenile court determined that C. B., a minor child, is deprived. The father of the child appeals, contending that the juvenile court erred at the evidentiary hearing by admitting hearsay evidence and by taking judicial notice of prior proceedings and orders concerning the same child without, the father says, giving him sufficient notice of its intent to do so. The father also claims that insufficient evidence was adduced at the hearing to sustain the finding of deprivation. The record on appeal, however, does not reveal any reversible error, and for this reason, we affirm.

1. We turn first to the contention that the juvenile court erred at the hearing by admitting hearsay evidence. The father made several objections at the hearing, including some on hearsay grounds, and many of these objections were sustained by the juvenile court. Although a few objections were overruled, the father does not specify the overruling of any particular objection as error. Instead, the father complains on appeal that the juvenile court allowed a caseworker employed with the Cherokee County Department of Family and Children Services (DFACS) to testify about facts of which her knowledge was based exclusively, the father claims, upon her review of records contained in a DFACS case file. But the father made no timely objection to this testimony below, and because he did not, he failed to preserve any error in admitting the testimony for our review. See In the Interest of A. K., 272 Ga. App. 429, 435 (1) (b) (612 SE2d 581) (2005); In the Interest of H. D. M., 241 Ga. App. 805, 808 (2) (527 SE2d 633) (2000). For this reason, the contention that the juvenile court erred at the hearing by admitting hearsay evidence affords no basis for us to reverse the decision below.

The father says that, even if he failed to preserve the admission of hearsay evidence for review on appeal by a timely objection below, hearsay has no probative value, and we, therefore, cannot consider it when we assess whether the evidence is sufficient to sustain a finding of deprivation. That may be true enough, see In the Interest ofj. C., 242 Ga. 737, 740 (3) (251 SE2d 299) (1978), but it does not help the father here. From our review of the record, whether most of the testimony about which the father complains is, in fact, hearsay is uncertain. It may be true, as the father claims, that the caseworker knew about certain facts to which she testified only because she read about them in a case file. But the father did not object to this testimony, did not voir dire the caseworker about the basis of her knowledge of these facts, and did not later cross-examine the caseworker about the basis of her knowledge. For all we know, the caseworker had personal and direct knowledge of these facts. When a witness testifies without objection about a specific fact, we will not deem it hearsay and without probative value unless it appears clearly from the record that the witness’s knowledge of this fact is based exclusively upon what she was told or what she read. See In the Interest of C. M., 258 Ga. App. 387, 388 (2) (574 SE2d 433) (2002) (“We will not presume the trial court committed error where that fact does not affirmatively appear in the record.”).

2. We turn next to the contention that the juvenile court improperly took judicial notice of prior proceedings and orders concerning C. B. The father says that the juvenile court could not properly take judicial notice of these prior proceedings and orders because it did not afford him notice of its intent to do so and an opportunity to object. But the written order from which this appeal was taken clearly makes reference to the prior proceedings and orders, and this order reflects that the father consented to its form several days before the judge signed it. Accordingly, the father had notice that the proposed written order made reference to the prior proceedings and orders, but the father apparently did nothing to object to these references or bring the issue of judicial notice to the attention of the juvenile court before the order was entered, although he had several days in which to do so. As such, the father was afforded adequate notice of the possibility that the juvenile court might take judicial notice of the prior proceedings and orders, and he waived any objection to the taking of judicial notice. See In the Interest ofS. Y, 264 Ga. App. 623, 625 (2) (591 SE2d 489) (2003); In the Interest of M. N. H., 237 Ga. App. 471, 474 (2) (517 SE2d 344) (1999), overruled in part on other grounds, State v. Herendeen, 279 Ga. 323 (613 SE2d 647) (2005). For these reasons, the taking of judicial notice of prior proceedings and orders concerning C. B. affords no basis for us to reverse the decision of the juvenile court.

3. We turn finally to the contention that the evidence adduced at the evidentiary hearing is insufficient to sustain the finding of deprivation. Proof of deprivation must be clear and convincing, and on appeal, we ask whether any reasonable trier of fact could have found such proof of deprivation, viewing the evidence in the light most favorable to the findings of the juvenile court below. See In the Interest of R. M., 276 Ga. App. 707, 707 (624 SE2d 182) (2005). According to our statutes, a child is deprived if he is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A). A finding of deprivation also requires proof that the circumstances amounting to deprivation “resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.” R. M., 276 Ga. App. at 715 (citation and punctuation omitted). In this case, the juvenile court found that the mother presented a danger to C. B. and that the father deprived C. B. by failing to protect him from his mother. We think the evidence is sufficient to sustain these findings.

Viewed in the light most favorable to the disposition below, the evidence is sufficient to sustain the determination that the mother presented a danger to C. B. as of the date of the deprivation hearing. In its order, the juvenile court noted that the evidence in prior proceedings established — and the father had stipulated in these prior proceedings — that the mother had chronic substance abuse problems. Moreover, the evidence presented at the hearing established that the mother had an extensive history of criminal activity, which had continued for more than a decade, that four of her seven children had been exposed to controlled substances, and that her parental rights to four children had been terminated. There was testimony at the hearing that the issues about the mother’s substance abuse and criminal activity still were unresolved at the time of the hearing. Moreover, testimony at the hearing established that the mother had anger management issues, which manifested when the mother was overheard by the caseworker screaming obscenities at another in a threatening manner for several minutes. Finally, there was testimony that the father, only a little more than a month before the hearing, admitted that he understood “the danger and threat” that the mother posed to her children.

We think the evidence also is sufficient to sustain the finding that the father was permitting the mother to have contact with C. B., despite the danger that she presented to the child. In December 2009, the juvenile court had awarded the father custody of C. B., subject to the condition that the father keep C. B. from his mother. The father understood this condition and acknowledged it. Notwithstanding the order that C. B. be kept from his mother, a manager of the mobile home park in which the father lives testified at the hearing that, soon after the mother was released from jail in January 2010, he saw C. B. in the care of the mother at the father’s mobile home. Another manager of the same park testified that, on the date of the hearing, the mother was present at the park and that she had seen the mother with the children at the home of the father on several occasions. Finally, the father testified at the hearing, in which he denied that he had spoken with the mother since C. B. was born, denied that the mother had been at his home in the presence of C. B., and denied that the mother had been at his home at all since C. B. was born, except on one occasion after C. B. was removed from his home. Given the conflicts in the testimony, the juvenile court was entitled to conclude, as it did, that the father was dishonest in his testimony, and the court further was authorized to infer from his dishonesty that, in fact, the father had permitted C. B. to have contact with his mother and that the father put the interests of the mother ahead of the best interest of C. B. See Ferguson v. State, 307 Ga. App. 232, 234 (1) (704 SE2d 470) (2010).

Decided March 2, 2011.

Ali-Reza P. Ghanouni, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Thompson, Meier & King, Dana M. Thompson, Jessica M. Chapman, for appellee.

We have said before that “a parent’s failure to protect a child from harm is sufficient to authorize a finding that the child is deprived on account of a lack of proper parental care or control.” In the Interest ofL. A. T, 291 Ga. App. 312, 315 (661 SE2d 679) (2008). Accordingly, we have held in several cases that evidence of exposure to a dangerous person sustains a finding of deprivation. See, e.g., id. (mother’s continuing cohabitation with boyfriend, despite allegations that he had sexually abused child, supported finding of deprivation); In the Interest of A. S., 285 Ga. App. 563, 567 (646 SE2d 756) (2007) (mother allowing child to have contact with her ex-boyfriend, which violated terms of child safety plan, authorized finding of deprivation); R. M., 276 Ga. App. at 715 (failure of parents to comply with tuberculosis treatment plan, which resulted in exposure of children to disease, authorized finding of deprivation). And in our view, a finding of deprivation is even more sustainable when the parent is dishonest with the juvenile court about having exposed the child to a dangerous person. See In the Interest ofD. H., 243 Ga. App. 778, 784 (534 SE2d 466) (2000) (termination of parental rights authorized where, “[g]iven the chance to show the court that she could put her children first, [the mother] nonetheless continued to live with [her husband],” who posed a danger to the children, “and attempted to mislead the court” about it). We conclude that the evidence is sufficient to sustain the determination that C. B. is deprived by his father.

Judgment affirmed.

Barnes, P. J., and Dillard, J., concur.

       As with most generalizations, there is an exception. The caseworker was asked to identify a printout from the website of the State Board of Pardons and Paroles, and she testified that it was a printout “stating that” the mother of C. B. maintains her residence at a particular address. To the extent that this testimony was offered merely to identify the printout - which the juvenile court later refused after objection to admit as an exhibit - or merely to explain the conduct of DFACS personnel, it was admissible for that limited purpose. But to the extent that DFACS relies upon this testimony as proof that the mother, in fact, maintained her residence at that address, it is hearsay because it clearly was based not on the personal knowledge of the witness, but instead upon what appeared on the face of the printout from which she was testifying. We will not consider this testimony in our review of the sufficiency of the evidence.

       The father contends that the caseworker could not possibly have knowledge of things that happened before she became employed with DFACS. Even if that were true, the record does not reflect when the caseworker became employed with DFACS, so it would not help the father here. And the father contends that the caseworker could not possibly have knowledge of things that happened in other counties, but for all we know, the caseworker visited the other counties and saw first-hand the things about which she testified. We will not engage in speculation about what the caseworker saw with her own eyes and what she did not.

       The order appears to have been signed by another on behalf of, and by the authority of, the father’s lawyer, indicating the consent of the father to the form of the order. A party is presumed to know the contents of a writing that he signs or that he authorizes another to sign on his behalf. See Northwest Plaza, LLC (MI) v. Northeast Enterprises, 305 Ga. App. 182, 190 (1) (699 SE2d 410) (2010).

       As a general matter, juvenile courts in deprivation proceedings properly may take judicial notice of such prior proceedings and orders, see In the Interest of J. A., 298 Ga. App. 11, 14 (1) (679 SE2d 52) (2009), and the father gives us no reason to believe that any objection to taking judicial notice in this case would have had merit. And although the father claims that he should have been afforded the opportunity to present evidence in response to the prior proceedings and orders of which notice was taken, he does not identify any specific evidence that he would have brought forward. For these reasons too, the father cannot show that the taking of judicial notice is reversible error. See In the Interest of D. W., 294 Ga. App. 89, 94 (3) (a) (668 SE2d 533) (2008) (“An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.”) (citation and punctuation omitted).

       The father did not include transcripts of the earlier proceedings or copies of the orders entered in those earlier proceedings in the record on appeal. Because he did not, we must presume that the evidence in those earlier proceedings, and the findings in the earlier orders, show precisely what the juvenile court said they show. See Code v. State, 255 Ga. App. 432, 433 (2) (565 SE2d 477) (2002) (“Absent a transcript, we must assume the ruling of the trial court is supported by the evidence.’’) (citation and punctuation omitted); In the Interest of B. B. S., 253 Ga. App. 119, 120 (3) (558 SE2d 447) (2001) (“The burden is on the appellant to show . . . error affirmatively by the record.”).

       The father made this admission at the time of a probable cause hearing, which occurred on March 5, 2010, according to the order of the juvenile court. The hearing on the deprivation Petition occurred on April 22, 2010.


author: Adams, Judge.

text:
    A10A2246.
    AQUINO v. THE STATE.
    (706 SE2d 746)
   Adams, Judge.

Juan Aquino was tried and convicted of trafficking in methamphetamine. On appeal, he contends the evidence was insufficient to support the conviction and that first appellate counsel was ineffective.

1. To establish the offense of trafficking in methamphetamine as charged in this case, the State was required to prove that Aquino did unlawfully knowingly possess 400 grams or more of a mixture containing methamphetamine. OCGA § 16-13-31 (e) (3). The standard for reviewing the sufficiency of the evidence is whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Construed in favor of the verdict, the evidence shows that the drug task force for the Gwinnett County Police Department was using a confidential informant to assist with an investigation into the sale of large amounts of methamphetamine. The investigation led to a house located at 2615 Cardinal Lake Circle in Gwinnett County; the property backs up to a lake. On March 22, 2005, the police observed Lionel Minera Aleman, Joaquin Pineda, and Ernesto Maldonado Vasquez get out of two cars, a Cadillac and a Toyota, at that location. One or more other unidentified men were there as well, who, an officer admitted, could have gone into the house that evening and could have been the people who brought the drugs there. The informant then went to the house, spoke with the men for a few minutes in the driveway, and left. He thereafter met with the investigators to relate what had happened. The confidential informant did not testify.

Co-indictee Aleman testified that on the next night, Wednesday, March 23, after dark, he, Pineda, and Marcelino Mata Sanchez arrived at the house in the Cadillac, with Sanchez driving. Afterward, an unidentified man arrived in a pickup truck. Sanchez went to the door, and the appellant, Aquino, opened the door holding a black bag. Sanchez and Pineda went into the house; Aleman never did, and he claimed to be ignorant of what transpired in the house.

Some indefinite amount of time later that night, under police instruction, the informant returned to the house wearing a concealed transmitter, but the transmissions were not recorded. The Cadillac was at the house when the informant arrived. Once the informant was inside the house, Officer Lester heard one or more unidentified voices from the informant’s transmitter and heard the informant count out what was asserted to be seven pounds of methamphetamine. In a phone call, Lester told the informant to explain that his boss was expecting fifteen pounds, not seven, and that they should contact him when they had it; the officer instructed the informant to leave. After the informant left, he and Lester headed for Lester’s office to meet. About ten minutes after Lester left the scene, he heard over the radio that the Cadillac was leaving the premises. As a result, an order was issued to other officers to stop the car and secure the residence; Aleman, Pineda, and Sanchez were found in the Cadillac. Vasquez was stopped in the area in the Toyota.

When Investigator Doherty approached the house, he found Aquino standing in the driveway about 20 feet from the front door not far from a Corvette parked in the driveway at the garage end of the house. Doherty ordered Aquino to the ground, where he was detained. Doherty then opened the unlocked front door, entered, and, with other officers, secured the premises, which, he explained, means “go and kind of flood the house, just secure all rooms for any persons or anything that was in danger.” No one was in the house at that time. The officers then waited until a search warrant was obtained.

After obtaining the warrant, officers found a large, black trash bag in a drawer, either in the kitchen or in the living room, that contained what proved to be seven bags of white crystal methamphetamine weighing 443.77 grams. In the basement, where there was a noticeable odor of acetone — a material used in the manufacture of a crystal form of methamphetamine — officers found several items commonly used to manufacture and package methamphetamine. Some similar items were found under a counter in a bathroom. They found Aquino’s Georgia driver’s license in a bedroom on the main floor, although the address shown was for a different house located somewhat nearby. The officers also found identification for three other men, two of whom were never identified as one of the arrestees. When an officer was asked who the men identified on these documents were, an officer testified, “I can’t recall if they were there that evening or not.”

On Aquino’s person, officers found a key ring with several keys, one of which fit the front door and the kitchen door, and one of which fit the Corvette parked in the driveway; he was not carrying a Georgia driver’s license or any other Georgia identification. A Georgia license tag registered to the Corvette but in another person’s name — Tomas Velazquez — was found in the basement. The Corvette had a tag marked “tag applied for.” None of the other men arrested that night had keys to the house.

The landlord testified that the proper tenants had disappeared and that a subtenant had taken over. Because the March rent went unpaid, she entered the house on March 5 with her own key. She saw a stack of pots in the basement at that time, which she thought was unusual. On March 19, the Saturday before the March 23 raid, she had contact with a man named Eddie Hernandez, who paid some of the rent. After the arrests, she noticed that the locks had been changed on two doors without her knowledge; she was able to enter through the basement door whose lock had not been changed. Also, after the arrests, a passport for Eddie Hernandez was found in the house; there were other documents in his name, as well as documents in other names. There is no indication that a person named Eddie Hernandez was indicted.

The five men found at the location or in the two cars were arrested and charged. The officers did not take fingerprints from anything in the house. Aquino was tried first and separately from the other men.

Aquino contends the State failed to prove that he knowingly possessed the illegal drugs because the officers never saw him in the house nor entering or exiting the house during their investigation; they never saw him drive or get in or out of the Corvette; they first saw him when he was standing in the driveway; he was not the owner or lessee of the house; no contraband was found on his person; and the evidence did not link him with drugs found hidden in the bag in the cabinet nor with the drug manufacturing equipment found in the basement.

A conviction for possession can be based on constructive possession under certain conditions:

A person may be found to have had constructive possession of contraband if it is shown that he had “both the power and the intention at a given time to exercise dominion or control over (it).” [Cit.] “(A) finding of constructive possession must be based upon some connection between the defendant and the contraband other than mere spatial proximity.” [Cit.]

Thurmond v. State, 304 Ga. App. 587, 591 (2) (696 SE2d 516) (2010). “A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where . . . the contraband is hidden.” Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997).

Here, there was evidence that the locks on the house had been changed sometime in the preceding three weeks without the landlord’s knowledge; Aquino was the only person arrested that day who had a key to the house; he was seen opening the door of the house earlier the same evening on the day of his arrest holding a black bag that could have been the bag that held the drugs; his driver’s license was found in a bedroom; and he was in possession of a key to the car parked on the premises whose license tag was found in the basement. But all of this evidence is circumstantial with regard to Aquino’s constructive possession of the contraband.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused,” OCGA § 24-4-6, although “it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt.” Peppers v. State, 261 Ga. 338, 339 (1) (404 SE2d 788) (1991). “Whether the circumstantial evidence is sufficient to exclude every reasonable hypothesis save that of defendant’s guilt is a question for the jury unless the verdict is insupportable as a matter of law.” Martin v. State, 201 Ga. App. 716, 718 (1) (b) (411 SE2d 910) (1991).

In Ridgeway v. State, 187 Ga. App. 381 (370 SE2d 216) (1988), the defendant was found standing in a living room in possession of keys to the apartment with small amounts of cocaine nearby, for which he was convicted of possession. Even so, his conviction of trafficking and possession with intent to distribute larger quantities of drugs found in other rooms in the apartment (along with measuring spoons, empty glassine bags, and scales) was reversed because the evidence did not show that he resided there or that he was engaged in a conspiracy with his co-indictees, who were also found in the house, regarding those drugs. “While the evidence creates the gravest suspicion that defendant may be guilty of the offense of which he was convicted . . . , suspicion is not sufficient to support a conviction.” Id. at 383. The State had not eliminated other reasonable hypotheses, including that Ridgeway may have been a customer of the drug operation. See also Johnson v. State, 245 Ga. App. 583 (538 SE2d 481) (2000) (“a mere occupant, as distinguished from a resident, does not necessarily have the requisite control over the premises to authorize the inference that he possesses all property found thereon”). See, e.g., Poden v. State, 216 Ga. App. 188 (453 SE2d 788) (1995) (evidence did not link defendant to drugs found on dresser in same room where he was discovered and where others also had access).

Similarly, here, despite the keys to the house and the car, the changed locks, the license and the tags, or even his appearance in the open front door holding a black bag, there is nothing in this case linking Aquino to the drugs or manufacturing equipment in the house. There is no evidence that Aquino was holding the bag in which the drugs were found, nor testimony that there were no other similar bags on the premises. He was never seen in proximity to the drugs or drug-making equipment. The drugs were located in a drawer and not visible to the officers when they initially entered the home. No drugs were found on Aquino’s person. He was neither the owner, lessee, nor an occupant of the house; in fact, papers were found in the house in several other peoples’ names, including several who were not indicted. Although Aquino had keys to the house and to the Corvette, he could have borrowed the keys temporarily or been asked to hold them and watch over the house. It was never shown that the key ring held other keys that fit Aquino’s own home or his own car. Although his license was found in a bedroom, no clothing was found there nor any other indication that he occupied or lived in the house, nor any other incriminating evidence; in fact, his license showed a different address located nearby. Finally, there is no testimony that the odor of acetone detected in the basement was present on the first floor, the only place where Aquino was seen.

“Presence at the scene of a crime is not sufficient to show that a defendant is a party to the crime under OCGA § 16-2-20. Even approval of the act, not amounting to encouragement, will not suffice.” (Citations and punctuation omitted.) Ridgeway, 187 Ga. App. at 382. Moreover,

where the evidence on the possession of contraband is entirely circumstantial, it is usually sufficient to convict where the proof shows the premises to be occupied by and under the control of the accused, but if the proof also shows that others than the accused have equal right of access and occupancy it is usually insufficient.

(Citation and punctuation omitted.) Paden, 216 Ga. App. at 190 (1). There was evidence that Sanchez and Pineda were in the house on the night of the arrest; documents such as licenses, checks, and real estate documents for several other people were located in the house; a man named Eddie Hernandez paid part of the rent four days earlier, yet he was not indicted and neither his whereabouts nor his role was explained at trial; and an officer admitted that there were other unidentified people at the house on the night before the raid who could have been responsible for the drugs. Thus, several other people with access to the house are unaccounted for and were not charged.

Like in Ridgeway, “[the] evidence combined with the presence of a key to the [premises] on the person of defendant raise grave suspicions of defendant’s guilt.” Ridgeway, 187 Ga. App. at 382. Nevertheless, the State has failed to establish that Aquino had both the power and the intention at the time of his arrest to exercise dominion or control over the drugs and failed to show that other men did not have equal access to the house and the items within it.

Decided March 2, 2011.

Walter M. Chapman, Martin M. Del Mazo, for appellant.

Daniel J. Porter, District Attorney, James M. McDaniel, Assistant District Attorney, for appellee.

2. Aquino’s contention that his trial counsel was ineffective is moot.

Judgment reversed.

Smith, P. J., and Mikell, J., concur.

       At one point, Aleman suggested that the man who arrived in the pickup truck was Aquino, but, of that person, he testified, “I don’t know if this man accordingly was going there to get drugs or what.”