After a bench trial, Austin Dyer was found guilty of possession with intent to distribute an imitation controlled substance. He appeals from his conviction and the denial of his motion for new trial.
1. Dyer contends that the evidence was insufficient to authorize a finding of intent to distribute. We agree and reverse. Viewed in a light most favorable to the verdict, the evidence shows that police officer J. E. Fox was parked in front of a Waffle House restaurant in a known drug area at 12:30 a.m. Fox testified that three unidentified people approached him and reported that an African-American male on a bicycle had attempted to flag them down. None of them knew what he wanted. A person matching that description rode into the parking lot, went into the restaurant and came out with a garbage bag which contained ice. Fox knew from past experience that the man’s name was Dyer, although he did not say what type of prior contact he had with Dyer. Fox asked Dyer what he was doing out at that time of night, to which Dyer responded that he was getting some ice. Fox then patted Dyer down and felt several small, hard objects in his pocket, which Fox believed were pieces of crack cocaine. The substance was later determined to be small chips of marble rock. At Fox’s request, Dyer emptied his pockets, revealing one clear plastic bag, several empty small, green plastic bags and several white marble chips. Though Fox’s testimony is unclear on this issue, apparently some of the marble chips were loose in Dyer’s pocket and some were in the clear bag. The small bags were empty. There is no indication in the record that Dyer had any money or other objects in his possession.
As Dyer points out, “[t]o support a conviction for possession of [contraband] with intent to distribute, the State is required to prove more than mere possession. [Cits.]” (Punctuation omitted.)
Sims v. State,
In its brief, the State argues that it proved an intent to distribute by the fact that Dyer possessed several small plastic bags along with the contraband and that he attempted to flag down three cars. First, there is no competent evidence that Dyer attempted to flag down cars. The only testimony on that issue came from Fox, who stated that three unidentified people told him that someone had attempted to flag down their cars. Dyer made a hearsay objection to the testimony, and the trial court properly ruled that the testimony was admissible only for the purpose of explaining Fox’s conduct. It was not admissible as evidence that Dyer was attempting to flag down cars or as any other indicia of Dyer’s guilt. See
Lynch v. State,
The only other evidence relied upon by the State, that Dyer possessed several small plastic bags along with the marble chips, is not sufficient to support a possession with intent to distribute conviction. Fox testified that there was a clear plastic bag, several small, green bags and several marble chips in Dyer’s pocket. Other than stating that there were “several” or “a few,” Fox did not specify how many marble chips or plastic bags there were. Only one bag had anything in it; the rest were empty. There was no cash, no drug paraphernalia, no expert testimony that the substance was intended for distribution and no testimony from anyone who saw Dyer do anything suspicious. Nor was there any evidence that Dyer had previously been arrested or convicted of any drug offenses. We note that the two cases relied upon by the State do not support its position, because in both of those cases there were stronger indicia of intent to distribute. See
Wright v. State,
2. In light of our holding in Division 1, we do not reach Dyer’s remaining enumeration of error.
Judgment reversed.