Opinion
A00A1334, A00A1335.
DECIDED: MAY 18, 2000.
Drug violation. Gwinnett Superior Court. Before Judge Winegarden.
Charles A. Tingle, for appellant (Casr no. A00A1334).
Robert Greenwald, for appellant (case no. A00A1335).
Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.
A Gwinnett County jury convicted co-defendants Indorfo Espinoza and Polinar Vasquez of a single count of possession of marijuana with intent to distribute. They were sentenced to ten years confinement to serve eight and six years, respectively. Separately, they appeal upon entry of the judgment of conviction and the sentence imposed by the superior court. Inasmuch as their claims are identical in part and arise upon the same set of facts, we have consolidated their cases for disposition on appeal. Held:
In February 1998, an accusation was filed against the co-defendants in the cases sub judice and two others: Cesar Hernandez and Juan Albarran. Hernandez entered a guilty plea upon his arraignment in March 1999. A jury returned guilty verdicts against the co-defendants herein and Jaun Albarran later that month.
Viewed in a light most favorable to the jury's verdicts, the evidence shows that on August 5, 1998, a suspected drug trafficker, a man named Arzate, was placed under surveillance at a Smyrna apartment by Special Agent Jeffery Dalman, United States Drug Enforcement Agency ("DEA"), acting on a lead provided by another DEA office. When Arzate left the Smyrna residence in a pickup truck registered to a California man from whom 100 pounds of marijuana had been seized, Special Agent Dalman followed, eventually losing him in the vicinity of Lilburn. Thinking that Arzate might reappear at the Lilburn residence where two years earlier he had seized 1,500 pounds of marijuana in conjunction with a drug trafficking arrest, Special Agent Dalman went to that location, found Arzate's truck, and initiated a second surveillance. Among other things, Special Agent Dalman noted the presence of a Ford van which was backed into the carport of the residence. After about an hour, three vehicles departed the residence in what appeared to be a convoy. Arzate, driving his pickup led. In the second vehicle, the Ford van, driven by Cesar Hernandez, Polinar Vasquez rode as a passenger. Indorfo Espinoza rode as a passenger in the third vehicle, a Ford Taurus, driven by Juan Albarran. As the three vehicles approached Interstate 85, contact was again lost with Arzate as he pulled away from the group in the pickup onto Interstate 85 south while the remaining vehicles stopped at a gas station where the van took on fuel. The vehicles then entered Interstate 85 northbound where, based on the totality of the circumstances, Special Agent Dalman ordered them stopped. Gwinnett County Police Officer Dan Llorens, who assisted in the traffic stop, testified that Cesar Hernandez consented to a search of the van. In the search which followed, a second Gwinnett County police officer assisting on the scene, Officer Gary Linder, found a black duffel bag containing 25 pounds of marijuana under the van's back bench seat.
Case No. AOOA1334
1. Indorfo Espinoza enumerates that the superior court erred in denying his motion in limine to prevent the State's witnesses from referring to the Lilburn residence as a known drug house, impermissibly placing his character in issue. The record, however, shows that the State's witnesses referred to the Lilburn residence not as a known drug house, but as the place where Special Agent Dalman arrested a drug trafficker in 1996 after seizing 1,300 pounds of marijuana. No evidence associated Indorfo Espinoza with the Lilburn residence at the time of the 1996 arrest at that location. Under these circumstances, Indorfo Espinoza's character as a bad man was never placed in issue, foreclosing his argument on appeal and the capacity to show prejudice. Moreover, "[Indorfo Espinoza's] failure to request a curative instruction waives [the] issue." This claim of error is therefore without merit.
Helton v. State, 235 Ga. App. 22 (1), 23 ( 508 S.E.2d 697).
Id., citing Simmons v. State, 266 Ga. 223, 226(2)(c) ( 466 S.E.2d 205); Underwood v. State, 218 Ga. App. 530, 534(3) ( 462 S.E.2d 434)
2. Indorfo Espinoza further contends that the superior court erred in allowing the State's attorney to prove Indorfo Espinoza's ownership of the van in the cases sub judice by an uncertified report provided by the Georgia Crime Information Center (GCIC). In this regard, Officer Linder testified over objection that a departmental GCIC computer search for the van's tag number "return[ed]" Indorfo Espinoza as the owner of the vehicle. Inasmuch as the State offered a sworn witness to show ownership of the van in Indorfo Espinoza upon a proper GCIC computer search, the superior court did not err in admitting it over Indorfo Espinoza's objection for lack of foundation. In any event, Indorfo Espinoza's own witness testified that he owned the van in issue. "`[A] party cannot complain of error [created by his] own legal strategy, trial procedure or conduct aided in causing. [Cit.]'"
Jackson v. State, 228 Ga. App. 877(1), 878 ( 492 S.E.2d 897).
Sharpe v. Department of Transportation, 270 Ga. 101, 103 ( 505 S.E.2d 473).
3. The superior court did not err in sentencing Indorfo Espinoza for possession of marijuana with intent to distribute for lack of evidence of intent to distribute. It is uncontroverted in the evidence that 25 pounds of usable marijuana, packaged in three plastic bags, was seized from the van driven by Indorfo Espinoza. We adhere to the holding in Miller v. State: "20 pounds of usable marijuana[,] . . . some of which was already bagged, is inconsistent with the simple possession of marijuana for personal use."
Miller v. State, 155 Ga. App. 399 ( 270 S.E.2d 822).
Id. at 401 (II).
Case Nos. A00A1334 and A00A1335
4. Defendants contend that the superior court erred in denying their motions to suppress the search of the van. We disagree.
The evidence shows that defendants rode as passengers in vehicles which they did not own — Indorfo Espinoza rode as the passenger in the Taurus owned by Cesar Hernandez and driven by Jaun Albarran; Polinar Vasquez rode as the passenger in the van owned by Indorfo Espinoza. "Where the owner of an automobile relinquishes actual possession to a third party, the owner thereby abandons any expectation of privacy in the automobile, and he therefore lacks standing to contest the legality of the search and seizure of the vehicle."
Prothro v. State, 186 Ga. App. 836, 837(3), 838 ( 368 S.E.2d 793) citing United States v. Dyar, 574 F.2d 1385, 1390(6) (5th Cir. 1978), cert. denied, 439 U.S. 982 ( 99 S.Ct. 570, 58 L.Ed.2d 653); see also Gresham v. State, 204 Ga. App. 540(1), 541 ( 420 S.E.2d 71).
Consequently, defendants lack standing to challenge the search and seizure in the cases sub judice. Even were this not the case and notwithstanding defendants' arguments to the contrary, there was evidence which established the legality of the search and seizure as based upon a traffic stop supported by articulable suspicion and valid consent given thereafter. In this regard, the evidence showed that Special Agent Dalman ordered the stop upon the reasonable suspicion that the co-defendants were involved in drug trafficking. He observed defendants in the company of Arzate, a man DEA suspected to be a drug trafficker; Arzate had appeared at the Lilburn residence where Special Agent Dalman had earlier arrested an individual for drug trafficking and seized marijuana; the pickup truck Arzate drove was a vehicle registered to a man DEA knew to have been arrested for drug trafficking; and, on leaving the Lilburn residence, Arzate and defendants proceeded in convoy, a technique Special Agent Dalman testified was consistent with drug trafficking. It is settled that the driver of a vehicle may consent to a search thereof, and there is here evidence that Cesar Hernandez validly did so without evidencing fear or apprehension upon Officer Llorens's request for consent given in Spanish with no gun drawn. "In reviewing a trial court's decision on a motion to suppress, this court's responsibility is to ensure that there was a substantial basis for the court's decision. [Cit.]" Such a basis here exists. Under all of these circumstances, the superior court properly denied defendants' motions to suppress in the case sub judice.
Carter v. State, 229 Ga. App. 417, 420 ( 494 S.E.2d 108) ("`An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.'" (Citations and punctuation omitted.)).
Pupo v. State, 187 Ga. App. 765, 767(5) ( 371 S.E.2d 219), citing United States v. Matlock, 415 U.S. 164, 171 ( 94 S.Ct. 988, 39 L.Ed.2d 242, 249-250).
Harris v. State, 239 Ga. App. 537, 539(2), 540(b) ( 521 S.E.2d 462) ("Having effected a valid traffic stop, the officers were authorized to request consent to search the automobile." [Cit.]).
State v. Dills, 237 Ga. App. 165, 168 ( 514 S.E.2d 917).
5. Finally, defendants challenge the sufficiency of the evidence contending: (a) that the superior court erred in denying their motions for directed verdict at the close of the evidence, and (b) that the evidence was insufficient to support the verdict.
On appeal the evidence must be viewed in the light most favorable to support the verdict, and [the co-defendants] no longer enjoy a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing denial of a motion for directed verdict of acquittal is whether under the [standard] of Jackson v. Virginia, . . . the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the [co-defendants were] guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.
(Citations and punctuation omitted.) Lowery v. State, 242 Ga. App. 375, 375-376 ( 530 S.E.2d 22).
Sufficient circumstantial evidence was presented at trial to establish that the co-defendants had at least joint constructive possession of the marijuana. Although mere spatial proximity is not enough to show such intent to exercise control, circumstantial evidence sufficiently proving that the co-defendants were parties to the crime is sufficient to show joint constructive possession of the drugs. In the cases sub judice, the evidence shows that Indorfo Espinoza and Vasquez lived together in North Carolina and traveled together to Lilburn for the purpose of procuring contraband and returning it to North Carolina. To this end, they undertook substantial steps to bring the contraband home safely, electing to travel by convoy on the return trip and to ride "shotgun" as passengers in vehicles they did not own, to provide both security and deception to their illicit endeavor. That 25 pounds of marijuana was seized from the van, in the totality of the circumstances, was sufficient evidence upon which the jury might reasonably have inferred that the co-defendants had at least joint constructive possession of marijuana with the intent to distribute.
Moody v. State, 232 Ga. App. 499, 500(1), 501 ( 502 S.E.2d 323) ("`A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. Such intent to exercise control may be inferred by the totality of the circumstances. . . .'" (Citations and punctuation omitted.)).
Leonard v. State, 228 Ga. App. 792, 796(3) ( 492 S.E.2d 747), citing Walden v. State, 196 Ga. App. 844 ( 397 S.E.2d 182).
Id.
Moody v. State, 232 Ga. App. 499, 500(1), 501-502, supra (whether circumstances sufficient in a given case to exclude every reasonable hypothesis except guilt of accused is primarily a jury question).
Miller v. State, 155 Ga. App. 399, 401(II), supra.
Thus, we conclude that the superior court did not err in denying the co-defendants' motions for directed verdict and that a rational trier of fact could have found each of the co-defendants guilty of possession of marijuana with the intent to distribute beyond a reasonable doubt. Judgments affirmed. Pope, P.J., and Miller, J., concur.
Lowery v. State, 242 Ga. App. 375, 375-376, supra; Allen v. State, 191 Ga. App. 623, 624(2), 625 ( 382 S.E.2d 690).