Court: Court of Appeals of Georgia; November 20, 2012; Georgia; State Appellate Court
DeWayne Lamar Evans was convicted of multiple marijuana-related charges, including possession with intent to distribute in proximity to public housing, a state park, and a school. He appealed the denial of his motion for a new trial, claiming that the trial court improperly denied his motion to suppress evidence obtained through an unreasonable search and seizure and contested the sufficiency of the evidence against him.
The appellate court affirmed the conviction, noting that evidence must be viewed favorably to the verdict, without a presumption of innocence for the defendant. On December 2, 2010, police received a tip regarding Evans carrying a large bag of marijuana. Sergeant Gene Mathews confirmed Evans was on probation and alerted the probation department, which, after further tips, directed officers to Evans’s mother’s home, where they found a matching vehicle. When approached, Evans fled inside the house and locked the door. The officers, identifying themselves, failed to gain entry initially, leading Mathews to remove a window air conditioning unit for Lieutenant Keys to enter and unlock the door.
Upon entry, officers found Evans and others in a bedroom, with marijuana discovered in the bathroom shortly thereafter. Evans's sister later attempted to enter the residence, asserting her residence there with their mother. The court determined that the evidence was sufficient for a rational jury to find Evans guilty beyond a reasonable doubt.
The sister directed her aunt to contact their mother, who arrived about 15 minutes later and consented to a search of the house after police reported finding marijuana residue in the bathroom. Officer Mathews collected marijuana from the bathroom floor and attempted to retrieve marijuana from the toilet but ended up flushing it, causing a blockage. He then turned off the water, removed the toilet, and used a clothes hanger to pull out a plastic bag containing marijuana. Kenneth Osborne, present in the house during the police entry, testified that he heard someone banging on the bathroom door, suggesting that Evans was inside. The State crime lab confirmed the seized material was marijuana. Prior to trial, Evans filed a motion to suppress, arguing the police lacked probable cause for the entry. The trial court denied the motion, citing Evans's refusal to comply with a probation officer's order and the exigent circumstances of his flight. Evans was convicted, and on appeal, he contended that the trial court erred in denying his suppression motion. The appellate court reviewed the evidence, noting that the trial court's findings must be upheld unless clearly erroneous. It acknowledged that while the Fourth Amendment applies to probationers, they can waive these rights. The State did not demonstrate any legal basis restricting Evans's Fourth Amendment protections at the time of the search, indicating that his probationer status alone did not justify the warrantless entry. The court referenced OCGA 42-8-38(a), which allows for a probationer's arrest without a warrant if a violation is suspected but emphasized that this does not negate the need for reasonable entry under the Fourth Amendment.
Georgia law does not permit blanket warrantless searches of probationers' homes without probable cause, yet a statute limits probationers' rights against arrest in their homes based on less than probable cause. This law informs probationers of their restricted rights and lowers their privacy expectations. The Georgia Supreme Court has ruled that a warrantless arrest is acceptable if the officer has reasonable cause to believe it is necessary for probation revocation and public protection. When assessing the reasonableness of an arrest, the unauthenticated tip from a police officer can be considered, regardless of its reliability.
In this case, the police informed the probation officer that Evans was seen with drugs. Evans's refusal to stop and subsequent flight, along with his history of drug possession, provided reasonable cause for his arrest. Therefore, the officers were justified in entering Evans’s home to arrest him and could conduct a limited search for safety and evidence. During this search, marijuana was found, justifying the trial court's denial of Evans's motion to suppress the evidence.
Evans argued that his conviction was unsupported due to others having equal access to the marijuana. However, possession can be actual or constructive, with constructive possession established if one knowingly has the power and intention to control the item. Evidence showed Evans lived at the residence, creating a rebuttable presumption of possession. While equal access by others could challenge this presumption, whether such evidence is sufficient to negate possession is a matter for the jury to decide.
Osborne, a witness present at the scene, initially claimed that Evans was in the bathroom as police attempted to enter, but later testified he only saw Evans banging on the bathroom door where marijuana was found. This, alongside Evans’s flight from the police and his refusal to let them in, provides sufficient evidence for his possession conviction. Evans contends the State did not prove intent to distribute marijuana, citing Vines v. State, which emphasizes the need for additional evidence of intent, such as scales or drug paraphernalia. However, the State presented 60.65 grams of marijuana and multiple small baggies, leading the jury to reasonably conclude the marijuana was intended for distribution rather than personal use.
Evans also argues that the State failed to demonstrate he possessed marijuana with intent to distribute within 1,000 feet of public housing, a park, and a school. Officer Mathews used a GPS to confirm the distances from the confiscated marijuana to these locations as 115.95 feet, 248.15 feet, and 947.97 feet, respectively, providing sufficient evidence for these charges. Regarding the park, Evans claimed there was no evidence it was designated as such by governing authorities; however, Officer Mathews testified that the marijuana was recovered within 1,000 feet of Fairmont Park, classified as a public park. This testimony sufficed to support the conviction. Lastly, concerning the elementary school, OCGA 16-13-32.4 (a) makes it unlawful to possess marijuana near any school property, and the evidence presented met this legal requirement.
Evans was accused of possessing marijuana with the intent to distribute it within 1,000 feet of A. Z. Kelsey Elementary School, which is owned by the Spalding County School Board. Officer Mathews confirmed that the marijuana was found within that distance, while Lieutenant Keys specified that A. Z. Kelsey Academy serves autistic children. Evans contends that the prosecution failed to prove the school's ownership by Spalding County, leading to a fatal variance between the accusation and trial evidence. However, this argument is rejected. The legal principle requiring alignment between allegations and proof exists to ensure that the accused is adequately informed of the charges and can mount an effective defense without surprise, as well as to prevent double jeopardy. In this case, the accusation clearly informed Evans of the charge regarding marijuana possession and distribution near A. Z. Kelsey, mitigating any risk of subsequent prosecution for the same offense.
The charging instrument provided sufficient notice to Evans regarding the essential elements of the offense, preventing any surprise and barring further prosecution for these charges. The court rejected claims of fatal variance and affirmed the sufficiency of the evidence under the standard established in *Jackson v. Virginia*. Key testimonies included a police officer's long history with Evans, noting past incidents involving drugs, and the lack of details about the confidential informant's reliability or Evans' prior convictions. The timeline between two calls from the informant was unclear, and police refrained from obtaining a search warrant due to concerns about losing evidence. Testimony indicated that the police attempted to enter Evans' residence for 15 to 20 minutes before forcibly entering. The total weight of marijuana involved was determined to be 60.65 grams. Multiple cited cases supported the court's decision, emphasizing the adequacy of the evidence and procedural adherence.
