Opinion
A21A0351
06-25-2021
HILL v. The STATE.
John R. Monroe, for Appellant. Lee Darragh, Gainesville, Laura Katherine Lukert, for Appellee.
John R. Monroe, for Appellant.
Lee Darragh, Gainesville, Laura Katherine Lukert, for Appellee.
Brown, Judge. Gilbert Alexander Hill appeals from his convictions of trafficking heroin, trafficking fentanyl, possession of heroin with the intent to distribute, possession of benzodiazepine, possession of marijuana, and possession of a firearm by a convicted felon. Hill contends that insufficient evidence supports his convictions because he was merely present in the location where the drugs and guns were found and the evidence failed to exclude every other reasonable hypothesis except that of his guilt. For the reasons set forth below, we agree and reverse.
We have circulated this decision among all nondisqualified judges of the Court to consider whether this case should be passed upon by all members of the Court. Fewer than the required number of judges, however, voted in favor of a hearing en banc on the question of disapproving the cases listed in footnote 4 of this opinion.
On appeal from a criminal conviction, the standard for reviewing the sufficiency of the evidence
is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.... This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence.
(Citations and punctuation omitted.) Hayes v. State , 292 Ga. 506, 739 S.E.2d 313 (2013). So viewed, the evidence shows that law enforcement officers lawfully searched a mobile home in connection with "an investigation [into] illicit narcotics that involved" the home. When the officers arrived around 10:00 a.m., they knocked repeatedly for several minutes at different locations, which included the front door, back door, and windows, while announcing themselves as sheriff's deputies or MANS ("Multi Agency Narcotics Squad") agents in a normal tone of voice that progressed to yelling after no one came to the door. After seeing no movement in the home and receiving no response to their knocks and announcements, the officers went to "a neighboring ... home," knocked on the door, and located Brittany Grizzle, who was in a back bedroom with an unidentified male. The officers obtained from Grizzle a key to the front door of the mobile home that they sought to search; the key was located on the night stand in the bedroom where they found Grizzle.
Although not submitted for the jury's consideration, the record shows that both Hill and his co-defendant, Brittany Grizzle, had executed Fourth Amendment waivers before the search in question.
When the officers entered the mobile home using the key that opened the front door, they continuously identified themselves and found no one after conducting an "initial clear" of the home. The officers then began a "deep clear," which involved looking in cabinets and underneath beds. During this clearing process, three to four officers were constantly and loudly announcing, "Police, come out, show me your hands." The deep clear revealed Hill hiding fully clothed behind a shower curtain in the bathroom shower. It did not appear that he was preparing to take a shower. A search of Hill's person revealed "nothing."
During their search of the mobile home, the officers discovered that it had two bedrooms, only one of which had a bed; this room had men's clothing in the closet. The other room had no bed and women's clothing in the closet. Underneath the kitchen sink, the officers found a bag containing a dark gray substance that was a mixture of heroin and fentanyl, as well as two handguns. Hill's license was "[o]n top of the kitchen sink." Black tar heroin was found in the freezer. Digital scales, commonly used to measure small amounts of narcotics to sell, along with Grizzle's identification card and birth certificate, were on the kitchen table. A digital scale was also located on the kitchen stove. In the kitchen pantry, officers found less than an ounce of marijuana, several pills, "little baggies," and small pieces of tinfoil used for packaging, popular with heroin dealers and users. Officers testified that the quantity of drugs found, in conjunction with the scales and packaging materials, indicated "[h]eroin sales." The value of the heroin found in the home was approximately $26,000. The State presented evidence that a dealer would typically keep a large quantity of drugs like the amount found in this case on his or her person or "close by" so another dealer or user could not steal it; it would not be left unattended.
A sheriff's department investigator testified that law enforcement did not know who owned the home where the search took place or who might have been renting it; the State presented no evidence regarding who owned or rented the home. Law enforcement also did not establish that the clothing in the closet belonged to Hill, and the State presented no photos or video of items found during their search. The firearms were not registered to Hill, and the officers did not attempt to lift fingerprints in the home, from the guns, or the digital scales. Over the objection of Hill's counsel, a sheriff's investigator testified that law enforcement went to the home on the day of the search with the intent to find Hill and Grizzle there. Another officer testified that the police did not conduct any surveillance on the mobile home before arriving to execute the search. Hill contends that we should reverse his convictions because the State's circumstantial evidence fails to exclude every reasonable hypothesis except that of his guilt. As a starting point for our analysis, we begin with a discussion of possession.
Trial counsel raised a hearsay objection and asserted that the evidence was "highly prejudicial." After the witness was questioned outside the presence of the jury, counsel again objected because "it is double hearsay. He got information that why they were going there is because the other investigator told him he heard from some source somehow, somewhere that Mr. Hill and Ms. Grizzle might be there or would be there." The trial court ruled that it was not "hearsay because that's what the officer was intending to do.... So I believe that's permissible to ask who he intended to encounter there and did he encounter those folks there and not go into why he thought they were there or what information he had to think they were there. Just that that was his intention ... to encounter them and he did."
[P]ossession of contraband may be joint or exclusive, and actual or constructive. Actual possession means knowing, direct physical control over something at a given time. For constructive possession, the standard is also well-understood: if a person has both the "power and the intention at a given time to exercise dominion or control" over a thing, then the person is in constructive possession of that thing.[ ] Mere
We note that, beginning in 2007, this Court has stated in numerous sufficiency of the evidence cases involving criminal convictions that: "As long as there is slight evidence of access, power, and intention to exercise control or dominion over an instrumentality, the question regarding constructive possession remains within the domain of the trier of fact." Daugherty v. State , 283 Ga. App. 664, 667-668 (1) (b), 642 S.E.2d 345 (2007). This statement originates from Evans v. State , 185 Ga. App. 805, 366 S.E.2d 165 (1988), a probation revocation case applying the former slight evidence standard for revocation of probation. Id. ("There being what can at the least be termed slight evidence of access, power, and intention to exercise control or dominion over the cocaine in the house, the question of fact regarding constructive possession remains within the domain of the trier of fact."). See also Glenn v. State , 310 Ga. 11, n.1, 849 S.E.2d 409 (2020) (explaining statutory basis for change in standard from slight evidence to preponderance of the evidence in probation revocation cases). In Wright v. State , 279 Ga. App. 299, 630 S.E.2d 774 (2006), a probation revocation case applying the preponderance of the evidence standard, we cited Evans , in part, to create the statement now used repeatedly in cases involving criminal convictions: "As long as there is ‘slight evidence of access, power, and intention to exercise control or dominion’ over an instrumentality, ‘the question of fact regarding constructive possession remains within the domain of the trier of fact.’ " Wright , 279 Ga. App. at 299 (1), 630 S.E.2d 774.
At the time this Court applied the former slight evidence standard for probation revocation, we recognized: "Only slight evidence is necessary to sustain a revocation of probation, and it need not be of such quality or quantity as would be necessary to sustain a conviction of a crime." Williams v. State , 166 Ga. App. 798, 800 (3), 305 S.E.2d 489 (1983) ; Smith v. State , 169 Ga. App. 799, 315 S.E.2d 32 (1984). Our perpetuation of the slight evidence quote from Wright , supra, in cases involving criminal convictions is improper, particularly in light of the Supreme Court of Georgia's decision to overrule the former slight evidence rule with regard to venue in criminal cases. See Jones v. State , 272 Ga. 900, 902-903 (2), 537 S.E.2d 80 (2000), overruled on other grounds, Worthen v. State , 304 Ga. 862 (3) (e), n.8, 823 S.E.2d 291 (2019). As it later reiterated, an "any evidence" standard of review for venue in a criminal case is also inappropriate because the proper standard for reviewing the sufficiency of the evidence is the well-established standard found in Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Martin v. McLaughlin , 298 Ga. 44, 46, n.3, 779 S.E.2d 294 (2015). When reviewing a criminal conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation and punctuation omitted.) Allen v. State , 310 Ga. 743, 746, 854 S.E.2d 513 (2021). We therefore disapprove the following cases as they state an improper standard with regard to slight evidence of constructive possession: Grullon v. State , 357 Ga. App. 695, 697 (1), 849 S.E.2d 291 (2020) ; Riley v. State , 356 Ga. App. 290, 298 (4), 846 S.E.2d 617 (2020) ; Brown v. State , 355 Ga. App. 308, 310 (1) (a), n.11, 844 S.E.2d 182 (2020) ; Jones v. State , 350 Ga. App. 618, 621 (1), 829 S.E.2d 820 (2019) ; Burgess v. State , 349 Ga. App. 635, 637 (1), 824 S.E.2d 99 (2019) ; Wooten v. State , 348 Ga. App. 408, 411-412 (1), 823 S.E.2d 98 (2019) ; Partlow v. State , 346 Ga. App. 473, 480 (3), 816 S.E.2d 474 (2018) ; Duncan v. State , 346 Ga. App. 777, 781 (1), 815 S.E.2d 294 (2018) ; Winn v. State , 345 Ga. App. 359, 362 (1), 813 S.E.2d 400 (2018) ; Harvey v. State , 344 Ga. App. 7, 12 (2) (b), 806 S.E.2d 302 (2017) (physical precedent only on other grounds); McCants v. State , 338 Ga. App. 733, 737, 791 S.E.2d 611 (2016) ; Anderson v. State , 338 Ga. App. 171, 176 (5), 789 S.E.2d 363 (2016) ; Crider v. State , 336 Ga. App. 83, 88 (2), 783 S.E.2d 682 (2016) ; Mantooth v. State , 335 Ga. App. 734, 736 (1) (a), 783 S.E.2d 133 (2016) ; Smith v. State , 331 Ga. App. 296, 298 (1), n.6, 771 S.E.2d 8 (2015) ; New v. State , 327 Ga. App. 87, 93 (1), 755 S.E.2d 568 (2014) ; Garcia-Maldonado v. State , 324 Ga. App. 518, 520, 751 S.E.2d 149 (2013) ; State v. Al-Khayyal , 322 Ga. App. 718, 722, 744 S.E.2d 885 (2013) ; Kirchner v. State , 322 Ga. App. 275, 282 (1) (c), 744 S.E.2d 802 (2013) ; Vega v. State , 321 Ga. App. 682, 683, 742 S.E.2d 499 (2013) ; Mallard v. State , 321 Ga. App. 650, 651-652, 742 S.E.2d 164 (2013) ; Clark v. State , 319 Ga. App. 880, 883, 738 S.E.2d 704 (2013), overruled on other grounds, Maddox v. State , 322 Ga. App. 811, 815 (2), 746 S.E.2d 280 (2013) ; Garcia v. State , 319 Ga. App. 751, 755 (1) (a), 738 S.E.2d 333 (2013) ; Evans v. State , 318 Ga. App. 706, 711 (2), 734 S.E.2d 527 (2012) ; Sabb v. State , 317 Ga. App. 537, 540, 731 S.E.2d 399 (2012) ; Stokes v. State , 317 Ga. App. 435, 437 (1), 731 S.E.2d 118 (2012) ; Smith v. State , 316 Ga. App. 175, 178 (1), 728 S.E.2d 808 (2012) ; Smoot v. State , 316 Ga. App. 102, 113 (6), 729 S.E.2d 416 (2012) ; Ferrell v. State , 312 Ga. App. 122, 124 (1),717 S.E.2d 705 (2011) ; Bone v. State , 311 Ga. App. 390, 393 (2), 715 S.E.2d 789 (2011) ; Mask v. State , 309 Ga. App. 761, 764 (2), 711 S.E.2d 348 (2011) ; Davenport v. State , 308 Ga. App. 140, 145 (1) (b), 706 S.E.2d 757 (2011) ; Wheeler v. State , 307 Ga. App. 585, 586 (1), 705 S.E.2d 686 (2011), overruled on other grounds, Maddox , 322 Ga. App. at 815 (2), 746 S.E.2d 280 ; Lott v. State , 303 Ga. App. 775, 779 (1), 694 S.E.2d 698 (2010) ; Hunt v. State , 303 Ga. App. 855, 858 (2), 695 S.E.2d 53 (2010) ; Feliciano v. State , 302 Ga. App. 328, 330-331, 690 S.E.2d 680 (2010) ; Marshall v. State , 295 Ga. App. 354, 355, 671 S.E.2d 860 (2008) ; Bailey v. State , 294 Ga. App. 437, 440 (1), 669 S.E.2d 453 (2008) ; Prather v. State , 293 Ga. App. 312, 313-314 (1), 667 S.E.2d 113 (2008) ; Woodard v. State , 289 Ga. App. 643, 651 (2), 658 S.E.2d 129 (2008) (physical precedent only); Warren v. State , 289 Ga. App. 481, 484 (3), 657 S.E.2d 533 (2008), impliedly overruled on other grounds, Coates v. State , 304 Ga. 329, 332, 818 S.E.2d 622 (2018) ; Jackson v. State , 284 Ga. App. 619, 620 (1), 644 S.E.2d 491 (2007) ; Daugherty v. State , 283 Ga. App. 664, 667-668 (1) (b), 642 S.E.2d 345 (2007).
We have attempted to identify all cases using the improper standard; any cases not listed that also use the improper standard are hereby disapproved. While not directly before us in this case, we also question the continued validity of the slight evidence statement in Wright , supra, in probation revocation cases. See Glenn , 310 Ga. at 11, n.1, 849 S.E.2d 409.
proximity to contraband, absent other evidence connecting a suspect with that contraband, is not enough to establish constructive possession. If one person alone has actual or constructive possession of a thing, then the person is in sole possession of it. If two or more people share actual or constructive possession of a thing, then their possession is joint.
(Citations and punctuation omitted.) Lebis v. State , 302 Ga. 750, 753-754 (II), 808 S.E.2d 724 (2017).
As the State presented no evidence showing actual possession by Hill, we must determine whether it presented sufficient evidence of constructive possession.
Constructive possession can be proven—and very often is proven—by circumstantial evidence. Of course, as with any charge based on purely circumstantial evidence, in
order to support a conviction "the evidence must exclude every reasonable hypothesis, save that of constructive possession by the defendant." As we have noted, proximity to contraband is plainly not enough. But as this Court has also held, consistent with OCGA § 24-14-6,[ ] "questions as to the
This Code section provides: "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."
reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and ... that finding will not be disturbed unless the verdict of guilty is unsupportable as a matter of law." In other words, whether the evidence shows something more than mere presence or proximity, and whether it excludes every other reasonable hypothesis, are questions committed principally to the trier of fact, and we should not disturb the decisions of the trier of fact about these things unless they cannot be supported as a matter of law.
(Citations and punctuation omitted.) Lebis , 302 Ga. at 754 (II), 808 S.E.2d 724. As the Supreme Court of Georgia has explained,
[t]his of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. After having heard the witnesses and having observed them testify, they are more capable of judging the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, and the defendant's statement, than is a court of law.
(Citation and punctuation omitted.) Harris v. State , 236 Ga. 242, 244-245 (1), 223 S.E.2d 643 (1976).
On the other hand,
[w]hen the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant's guilt beyond a reasonable doubt. Circumstantial evidence is worth nothing in a criminal case, if the circumstances are reasonably consistent with the hypothesis of innocence, as well as the hypothesis of guilt.
(Citation and punctuation omitted.) O'Neill v. State , 285 Ga. 125, 674 S.E.2d 302 (2009). See also Roberts v. State , 296 Ga. 719, 721-722 (1), 770 S.E.2d 589 (2015). Finally, the evidence "need not exclude every conceivable inference or hypothesis — only those that are reasonable." (Emphasis in original.) Merritt v. State , 285 Ga. 778, 779 (1), 683 S.E.2d 855 (2009).
The circumstantial evidence presented by the State against Hill includes: his conduct in refusing to come to the door and hiding for an extended period of time after the police entered the home and repeatedly announced themselves, his driver's license on top of the kitchen sink, the presence of two digital scales in plain view in the kitchen, and the value of the drugs in the home making it unlikely for them to be left unattended. We must therefore determine whether this evidence was sufficient to show that he "knowingly had both the power and intention at a given time to exercise control over the [drugs and guns]." (Citation and punctuation omitted.) Kier v. State , 292 Ga. App. 208, 209 (1), 663 S.E.2d 832 (2008).With regard to power, that may be inferred from his ability to access the drugs and guns while in the house. Id. See also Maddox v. State , 322 Ga. App. 811, 813 (1), 746 S.E.2d 280 (2013). The intent to exercise control over the drugs and guns "may be derived from the surrounding circumstances" such as
a defendant's attempts to flee or elude police; inconsistent explanations by the defendant for [his] behavior; the presence of significant amounts of contraband and drug paraphernalia in plain view; the defendant's possession of large amounts of cash, other indicia of the sale of drugs, or drug-related paraphernalia; evidence that the defendant was under the influence of drugs; or drug residue found on the defendant.
Kier , 292 Ga. App. at 210 (1), 663 S.E.2d 832. We have previously held that hiding from police inside a home "constitute[s] evidence of [a defendant]’s consciousness of guilt and of his intention to exercise control over the contraband." Moody v. State , 232 Ga. App. 499, 502 (1), 502 S.E.2d 323 (1998). See also Duncan v. State , 346 Ga. App. 777, 781 (1), 815 S.E.2d 294 (2018) (defendant's behavior in refusing to answer door for about 20 minutes after police officers knocked and repeatedly announced their presence evinced a connection between the defendant and the illegal contraband); Johnson v. State , 338 Ga. App. 500, 503-504, 790 S.E.2d 291 (2016) (finding sufficient evidence to support constructive possession of large quantity of cocaine found in house based in part upon defendant's flight upon arrival of police). Likewise, we have looked to the high street value of drugs to show a connection between a person and hidden drugs. See Arellano v. State , 289 Ga. App. 148, 150 (1) (a), 656 S.E.2d 264 (2008). Compare Cobarrubias-Garcia v. State , 316 Ga. App. 787, 791, 730 S.E.2d 455 (2012) (physical precedent only) (finding insufficient evidence of constructive possession despite State's argument that " ‘no one is in a stash house containing drugs worth $750,000 at 10:30 p.m. unless they have a vested interest in what is inside’ ").
We have also concluded that a driver's attempt to elude police provides evidence from which a jury can infer that a defendant knowingly possessed drugs hidden in the car. See Hernandez-Garcia v. State , 322 Ga. App. 455, 462 (3), 745 S.E.2d 706 (2013) ; Arellano v. State , 289 Ga. App. 148, 150 (1) (a), 656 S.E.2d 264 (2008).
While this case is disapproved in footnote 4 of this opinion for stating an improper slight evidence standard regarding constructive possession, the portion of the opinion related to the inference that can be drawn from the defendant's behavior is not impacted by that disapproval.
On the other hand, we have concluded that insufficient evidence supported a trafficking conviction when the State presented the following evidence: the defendant did not own or lease the home, had previously opened the door to the home while holding a black bag; a black bag containing 443.77 grams of methamphetamine was found inside a drawer; items used to manufacture methamphetamine were found in the basement; the basement had a noticeable odor of acetone, a substance used in the manufacture of crystal methamphetamine; a key to the home was found on the defendant's person; his driver's license, which listed a different address, was found in a bedroom on the main floor of the home, and identifications were found in the house in several other peoples’ names. Aquino v. State 308 Ga. App. 163, 167, 706 S.E.2d 746 (2011). Similarly, we have found insufficient evidence to sustain a trafficking conviction when the defendant was found inside a home that he did not own or lease, no drugs were found on his person, and he was not seen in proximity to the well-hidden drugs. Cobarrubias-Garcia , 316 Ga. App. at 791, 730 S.E.2d 455. See also Holland v. State , 334 Ga. App. 600, 604 (1), 780 S.E.2d 40 (2015) (physical precedent only) (finding insufficient evidence to sustain drug convictions where drugs were hidden in master bedroom and attic, defendant did not own or rent the home, and there was no evidence that defendant occupied master bedroom or kept belongings there). None of these cases, however, involved a defendant hiding from the police inside the home, both before and after a well-announced entry to search.
In Blue v. State , 350 Ga. App. 702, 830 S.E.2d 279 (2019), we concluded that insufficient evidence supported the defendant's convictions of trafficking in cocaine and possession of a firearm during the commission of a crime. Id. at 706-707 (1), 830 S.E.2d 279. In that case, the State presented evidence that a confidential informant, who did not testify at trial, met the defendant on the front porch of his girlfriend's house and entered the home with him. Id. at 702, 830 S.E.2d 279. Four or five minutes later, both men exited the rear of the house and went in separate directions. Id. The informant then gave the police cocaine he allegedly purchased. Id. The police obtained a search warrant for the house which they executed between one and three days after the confidential informant went to the home. Id. at 703, 830 S.E.2d 279. Although the defendant was not present when the police arrived, his girlfriend said he had just left. Id. The police found a large quantity of cocaine hidden in a bedroom (inside a purse in the closet, inside a shoe box in a corner of the bedroom, and inside a make-up drawer on the nightstand), a gun sitting on top of the nightstand, three digital scales in the kitchen (one on the counter with cocaine residue, one in a drawer, and one inside a cabinet). Id. The defendant was arrested three days later for an outstanding warrant while he was inside the house, and police found a key to the house and $1,332 cash on his person. Id. at 703, 706 (1) (a), 830 S.E.2d 279. He admitted that he sometimes stayed in the house with his girlfriend and that men's clothing in the house belonged to him. Id. at 703, 830 S.E.2d 279. Evidence was presented showing that the defendant was given a key to the house after his girlfriend's arrest to retrieve clothing for her children, that he was employed, that he did not own or lease his girlfriend's house, and that he had a bedroom with clothing at his mother's house. Id. at 704, 830 S.E.2d 279. After reviewing this evidence, we concluded that "[t]he State's evidence did not show essential links between [the defendant] and the drug trafficking charge" and reversed his conviction. Id. at 706 (1) (a), 830 S.E.2d 279.
In this case, the State presented far less evidence of a link between Hill and the drugs and guns found in the home than that presented in Blue . Having carefully considered the inferences which can be drawn from the circumstantial evidence and our existing case law, we conclude that the State failed to present sufficient evidence of Hill's guilt under the standard of Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Blue , 350 Ga. App. at 706 (1) (a), 830 S.E.2d 279 ; Aquino , 308 Ga. App. at 167-168 (1), 706 S.E.2d 746. "There may have existed unexplained and suspicious circumstances, but they are not sufficient to convict." Russell v. State , 132 Ga. App. 35, 207 S.E.2d 619 (1974).
Judgment reversed.
Doyle, P. J., and Reese, J., concur.