Opinion
A99A1422.
DECIDED: SEPTEMBER 2, 1999.
Drug violation. Cobb Superior Court. Before Judge Robinson.
James W. Gibert, for appellant.
Patrick H. Head, District Attorney, John C. Richter, Joel C. Pugh, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.
Convicted of possession of cocaine, Darrell Eubanks challenges the sufficiency of the evidence and the effectiveness of his trial counsel. Because the State proved he was near the cocaine and possessed drug paraphernalia, and because he failed to include a transcript of the new trial hearing on appeal, we affirm.
1. Citing a lack of evidence, Eubanks claims the court erred in denying his motions for new trial and for a directed verdict. The test established in Jackson v. Virginia, 443 U.S. 307 ( 99 S.Ct. 2781, 61 L.E.2d 560) (1979), applies to our review of both rulings. Humphrey v. State, 252 Ga. 525, 527(1) ( 314 S.E.2d 436) (1984). The Jackson test is whether, based on the evidence as construed in favor of the verdict, any rational trier of fact could have found Eubanks guilty of possessing cocaine beyond a reasonable doubt.
Officer Jones observed Eubanks sitting in the driver's seat, another man in the passenger seat, and a woman in the rear seat of Eubanks' car at 3:00 a.m. in a deserted parking lot. He approached the vehicle and saw a glass pipe (commonly used to smoke crack cocaine) and a napkin (commonly used to hold a hot crack pipe) in Eubanks' lap. He asked Eubanks to exit the car. As he exited, Eubanks dropped the pipe and crushed it with his foot with the specific intent of destroying incriminating evidence. With the help of a second officer, Officer Jones discovered raw cocaine in the mouth of the man sitting in the passenger seat. The second officer also found three plastic bags of cocaine in the man's mouth. Each passenger possessed a crack pipe.
Eubanks argues that spatial proximity to contraband in another's mouth is insufficient to establish constructive possession of the contraband. True, spatial proximity alone is insufficient to sustain a conviction of drug possession, even if based on joint constructive possession. Ryans v. State, 226 Ga. App. 595, 596(1) ( 487 S.E.2d 130) (1997). But additional evidence such as defendant's possessing drug paraphernalia will suffice. Id. at 597(1); see Cooper v. State, 237 Ga. App. 837, 838(2) ( 517 S.E.2d 85) (1999); Moody v. State, 232 Ga. App. 499, 501(1) ( 502 S.E.2d 323) (1998); Leonard v. State, 228 Ga. App. 792, 797(3) ( 492 S.E.2d 747) (1997).
Here police found Eubanks with a crack pipe and napkin in his lap. Eubanks even admitted to destroying the pipe to avoid incrimination. See Whitfield v. State, 159 Ga. App. 398, 401(9) ( 283 S.E.2d 627) (1981) (efforts to destroy or conceal evidence may evince intent and participation in crime). The pipe was dark and had a screen filter, indicating it was recently used for cocaine smoking. Eubanks was sweating profusely, exuded a strong odor, and was nervous, jumpy, and talkative, all of which indicated recent drug use. The raw cocaine found in the passenger's mouth was immediately available for use by as many as three people, and each occupant of the car had a crack pipe. This additional evidence connected Eubanks to the cocaine and sustained a finding of joint constructive possession.
2. To show ineffective assistance, Eubanks bore the burden of proving to the trial court that his counsel's performance fell below an objective standard of reasonableness and thereby prejudiced his defense. Strickland v. Washington, 466 U.S. 668 ( 104 S.Ct. 2052, 80 L.E.2d 674) (1984); Johnson v. State, 266 Ga. 380, 381(2) ( 467 S.E.2d 542) (1996). Eubanks' appellate counsel raised the issue in an amended motion for new trial, and after holding a hearing the trial court denied the motion on each and every ground asserted.
Eubanks failed to request or include a transcript of the hearing in the record on appeal. Georgia law is firmly established that absent a transcript, we must presume the trial court was authorized to find that Eubanks failed to meet the burden of proving the ineffectiveness of his trial counsel. Edwards v. State, 271 Ga. 3, 4(2) ( 514 S.E.2d 833) (1999); Johnson v. State, 270 Ga. 234, 239-240(7) ( 507 S.E.2d 737) (1998); Sorrells v. State, 267 Ga. 236, 241(9) ( 476 S.E.2d 571) (1996); White v. State, 238 Ga. App. 367, 369(2) (___ S.E.2d ___) (1999).
Judgment affirmed. Barnes and Ellington, JJ., concur.