Owens v. State

Citations: 384 S.E.2d 920; 192 Ga. App. 335Docket: A89A0598, A89A0599, A89A0600

Court: Court of Appeals of Georgia; July 14, 1989; Georgia; State Appellate Court

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Defendants Joe Owens, Jr., Willie June Owens, and Garland Tard were indicted for trafficking in cocaine and theft by receiving stolen property, with the case involving additional defendants not relevant to this appeal. During a jury trial, the State presented evidence indicating that Owens and Tard leased a duplex in Macon, Georgia, where cocaine distribution was suspected. Investigator Russell Nelson, acting on a tip from a confidential source, set up a monitored drug buy at their apartment. After the source returned with what appeared to be cocaine, Nelson secured a search warrant and, accompanied by law enforcement, executed the search. Upon entering the apartment, they found nine individuals, including the defendants. Owens, Jr. was found in the living room, while Tard and Willie June Owens were also present. During the search, various cocaine-related contraband was discovered, including multiple bags of crack and powdered cocaine. Owens, Jr. questioned the legitimacy of the search warrant, expressing disbelief over the lack of a seal and suggesting potential misconduct by the officers. The evidence collected during this operation formed the basis of the charges against the defendants.

Four hundred twenty-three dollars in cash was discovered in Joe Owens, Jr.'s pocket, alongside keys belonging to him found under a sofa containing cocaine. Garland Tard's jacket located on the sofa held a matchbox with 12 pieces of crack cocaine, and a Black .38 Derringer pistol was found next to it, along with a plastic bag containing 43 pieces of crack cocaine. In the kitchen, a grocery sack with $5,264 in cash was found near Willie June Owens, who was observed at that location. Additionally, a bottle with four large pieces of crack cocaine was found in the kitchen garbage, and six pieces were located in a bottle in an ashtray on the living room table. Eighteen pieces of crack cocaine were hidden in a bathroom toilet tank, and a small bag of cocaine was under a love seat in the living room. In Joe Owens, Jr.'s bedroom, 15 pieces of crack cocaine were found in a matchbox on a closet shelf, along with four sports coats and a suit stolen from a department store. A small bag of crack cocaine was also discovered on a bar counter between the living room and kitchen.

After the state presented its case, Garland Tard testified that he and Joe Owens, Jr. leased the duplex apartment to fundraise for Owens' niece, who needed a bone marrow transplant, stating that food was sold during various entertainment events held there. Willie June Owens corroborated this, explaining that he assisted in the fundraising and noted that no food was present during the police raid as the cook had not arrived yet. The jury convicted Joe Owens, Jr. and Garland Tard of trafficking in cocaine and theft by receiving stolen property, while Willie June Owens was found guilty of possession of cocaine with intent to distribute but not guilty of theft. Appeals were filed by all three defendants, with Joe Owens, Jr. and Willie June Owens arguing that the jury's verdict was against the weight of the evidence and questioning the legality of their possession of cocaine. Garland Tard contended that the court erred in denying his motion for a directed verdict of acquittal.

Trafficking in cocaine is defined under OCGA 16-13-31 (a) as knowingly selling or possessing 28 grams or more of cocaine or a mixture with at least 10% purity. In the case against defendants Joe Owens, Jr. and Garland Tard, over 28 grams of pure cocaine was found in their apartment, with some in plain view and others hidden in various locations. The defendants contended that there was insufficient evidence linking them to "actual possession" of the cocaine, a requirement for conviction. Actual possession is defined as having direct physical control over an item, as established in Lockwood v. State. The distinction between actual and constructive possession can be nuanced, and circumstantial evidence can suffice for proving actual possession.

Moreover, under OCGA 16-2-20 (b), individuals can be convicted as parties to a crime if they aid or abet its commission, without needing to directly commit it. Evidence indicated that Willie June Owens held a grocery sack with over $5,000 in cash, and cocaine was found in the kitchen and in close proximity to him. Joe Owens, Jr. was discovered on a sofa with cocaine and cash nearby, while Garland Tard had crack cocaine in his jacket and on the sofa beside him. This evidence suggested that the defendants were managing drug distribution in the apartment during the police raid, supporting the conclusion that they were in actual possession of the cocaine. Thus, the trial court correctly denied Tard's motion for directed verdict of acquittal, and Joe Owens, Jr.'s claims did not present valid grounds for overturning his trafficking conviction.

Defendant Willie June Owens' first and third enumerations of error regarding his conviction for possession of cocaine with intent to distribute are deemed without merit, supported by relevant case law. For theft by receiving stolen property, the law stipulates that a person commits this offense if they knowingly receive, dispose of, or retain stolen property, unless it is intended to be returned to the owner. Evidence showed that four sport coats and a suit, which were stolen from a department store, were found in Joe Owens, Jr.'s bedroom, linking him to the crime. This evidence, alongside the connection between stolen goods and drug trafficking, allowed the jury to convict Joe Owens, Jr. of theft by receiving stolen property beyond a reasonable doubt. In contrast, there was inadequate evidence to convict Garland Tard, as the stolen property was not found in his control or possession, leading to the reversal of his conviction for theft by receiving stolen property.

Garland Tard also argued that the trial court erred in denying his motion to sever his trial from the other defendants, claiming prejudice from the evidence introduced against them. Relevant factors for considering severance include the potential for confusion among jurors regarding evidence, the risk of evidence admissible against one defendant being misapplied to another, and whether the defendants' defenses were antagonistic. Tard failed to demonstrate that the joint trial was confusing or misleading or that evidence admissible against one defendant was inappropriate for others. Furthermore, the defendants' defenses were not antagonistic, as they uniformly denied the trafficking charges without implicating one another.

Defendants Garland Tard, Willie June Owens, and Joe Owens, Jr. were gathered in an apartment during a police raid to raise funds for a sick niece, according to corroborating testimonies from Tard and Owens. The court noted that even if the defenses of the co-defendants appeared antagonistic, this alone does not justify separate trials, as established in prior case law (Cain v. State; Owens v. State). The judge has discretion to determine whether defendants may be tried jointly for felonies less than capital, and the denial of a motion to sever trials is not grounds for reversal unless there is an abuse of discretion. The court found no such abuse in the denial of Tard's motion to sever.

Defendants Joe Owens, Jr. and Willie June Owens raised issues regarding the jury instructions on trafficking in cocaine and claimed the trial court expressed an opinion by questioning Owens. However, they failed to support these claims with argument or authority in their briefs, leading the court to deem the issues abandoned. Additionally, they did not specify the relevant portions of the trial transcript, resulting in a waiver of these claims.

The judgments in Cases A89A0598 and A89A0599 were affirmed, while the judgment in Case A89A0600 was affirmed in part and reversed in part. Judge Beasley dissented regarding the reversal of Tard's theft conviction, highlighting evidence of a joint enterprise involving cocaine distribution and the presence of stolen merchandise at the residence during the raid. Tard's connection to the property and his actions during the arrest were noted as indicative of his involvement and awareness of criminal activity.

Over $5,200 in large denominations was found in Tard's presence during a raid, leading to the inference that it was derived from drug sales. Additionally, stolen clothing found at the scene was also considered proceeds of drug trafficking, indicating Tard's involvement in the criminal enterprise. Tard's connection to both the cash and the stolen clothing was equal, as both items were tied to the operation of the crack house he was associated with. The court addressed Tard's involvement in theft by receiving stolen property through charges of aiding and abetting. The evidence presented allowed the jury to convict Tard beyond a reasonable doubt of being complicit in the crime, as outlined in OCGA 16-2-20. A dissenting opinion was shared by Presiding Judge Deen, Presiding Judge Banke, and Judge Pope. Additional notes indicate that a man leaving the apartment carried a concealed marijuana cigarette and a loaded Derringer pistol, while another occupant attempted to hide a bottle containing 17 pieces of crack cocaine, weighing a total of 3.59 grams. The defendants were indicted under OCGA 16-13-31 (a), which was amended shortly after the events described.