Dеxter Dewayne Hodges was found guilty by a jury of trafficking in cocaine in violation of OCGA § 16-13-31. On appeal, he claims the evidence was insufficient to support his conviction. For the following reasons, we agrеe and reverse.
The State jointly indicted Hodges and Erica Shyane Louder alleging that they knowingly possessed more than 400 grams of a mixture containing at least ten percent cocaine. At their joint trial, the State alleged that Hodges and Louder had joint constructive possession of cocaine found by police hidden in a package on the floor behind the driver’s seat in a car driven by Louder and registered to Louder’s mother, and in which Hodges was a passenger in the front seat. In the absence of any evidence showing that Hodges had actual possession of the cocaine, the State relied on circumstantial evidence to prove that Hodges had constructive possession of the cocaine. “A person is in constructive possession of an object when he knowingly has both the power and intention at a given time to exercise dominion over the object.” (Footnote omitted.)
Wofford v. State,
[A] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.
(Citation and punctuation omitted.)
Reid v. State,
In support of its case, the State presented evidence that two Henry County police officers were patrolling on Interstate 75 when they saw a car weaving out of its lane of traffic. Concerned that thе driver might be impaired, the officers stopped the car to investigate. When Officer Freeman spoke to the driver, Louder, to evaluate her condition, he smelled the odor of marijuana in the сar and obtained Louder’s consent to search the car. Officer Amerman got Hodges out of the front passenger seat of the car, patted him down for weapons, found none, and sent him to the rеar of the car, where Officer Freeman was standing with Louder. Officer Freeman asked Hodges if there was any marijuana in the car, and Hodges pulled less than an ounce of marijuana in a bag out of his sock and gave it to the officer. Officer Freeman intended to write Hodges a misdemeanor citation for possession of the marijuana and release him, but about that time, Officer Amerman, who was seаrching the car, found a substantial amount of suspected cocaine in the car. Officer Amerman testified that, behind the driver’s seat on the rear floor of the car, he found “a yellow plastic bag which contained a white shoe box which contained a gray tee shirt which contained a clear plastic bag which contained suspected cocaine.” Both Hodges and Louder were placed under arrest and charged with possession of the cocaine.
A forensic chemist employed at the Georgia Bureau of Investigation’s State Crime Lab testified for the State that the suspected cocaine was tested at the Lab and found to be a substance weighing 931.9 grams containing 67.8 percent cocaine. The State tested for fingerprints on the clear plastic bag in which the cоcaine was found. Although prints were lifted from the bag and compared with fingerprints taken from Hodges and Louder, the prints on the bag did not match those of Hodges or Louder. Officer Amerman testified that, when he searched the car, he could “smell the raw odor of cocaine” in
Hodges testified in his defense at thе trial. Although Hodges testified that, at the time of the arrest, he had three children, ages seven, three, and newborn, there was no evidence that any of the children wore shoes of the K-Swiss brand or size twelve аnd a half. Hodges also gave testimony explaining why he was in the car with Louder traveling south on Interstate 75 when they were stopped by the officers. He testified that, at the time of the arrest, he resided in Maсon, where he was employed and lived with his wife and children. He said that, because of marital problems, he left Macon about two or three days prior to the arrest and was driven by his sister to his sister’s house in Jоnesboro, where he stayed until Louder picked him up to give him a ride back to Macon. Hodges said he knew Louder because she dated one of his friends, and that his friend asked Louder to pick him up as she was driving from Atlanta to Macon. In response to questions about why he was not carrying any clothes with him in Louder’s car after spending two or three days with his sister, Hodges testified that he visited frequently with his sister and kept clothes there. Hodges’s mother testified and confirmed Hodges’s testimony that his sister was visiting in Macon, and that Hodges rode back to Jonesboro with his sister to spend a few days at his sister’s house because of marital рroblems. She also confirmed that Hodges kept clothes at his sister’s house in Jonesboro because of frequent visits due to marital problems. Hodges admitted that he was in possession of the marijuana hе gave to the officer, but he testified that he never saw the yellow bag on the rear floor of the car, never saw any cocaine in the car, and had no knowledge of any cocaine in thе car.
As to Louder, in addition to evidence that the cocaine was found in the car she was driving, which was registered to her mother, the State produced evidence that Officer Amerman found a set оf scales in Louder’s purse, which the officer testified was like those commonly used to weigh drugs. Louder did not testify at the trial. The jury deadlocked on the charges against Louder, and the trial court declared a mistrial as to Louder. When the jury found Hodges guilty of trafficking in cocaine, the trial court entered judgment on the guilty verdict and sentenced Hodges to 25 years in prison and a fine of $1 million pursuant to OCGA§ 16-13-31 (a) (1) (C).
The State contends that the circumstantial evidence connecting Hodges to the cocaine proved beyond a reasonable doubt that he had constructive possession of the cocaine, and that the evidence was sufficient to exclude every reasonable hypothesis save that of his guilt. Specifically, the State contends that the following evidence proved Hodges’s guilt: (1) Hodgеs’s sister failed to testify to corroborate his testimony that he was staying at her house and that Louder picked him up there; (2) Hodges was not carrying clothes with him at the time of his arrest, despite having testified that he had spent two or three days at his sister’s house; (3) the cocaine was found in a child size twelve and a half shoe box and Hodges had three children, ages seven, three, and newborn; and (4) the police vidеotape of the traffic stop (which was played at trial hut not included in the record on appeal) “depicts Appellant’s reactions during the stop and when the cocaine was found.”
As to the videotape, the
The cirсumstantial evidence produced by the State failed to establish a connection between Hodges and the cocaine other than the fact that the cocaine was found hidden in a package on the floor behind the driver’s seat in a car in which he was riding in the front passenger seat. Because mere spatial proximity to the hidden cocaine was insufficient to establish beyond a reasonable doubt that Hodges had constructive possession of the cocaine, and the circumstantial evidence was insufficient to exclude every other reasonable hypothesis save that of guilt, the conviction must be reversed.
Mitchell v. State,
Judgment reversed.