Courtne Darnell Jackson and Myron Esters were jointly indicted, tried, and convicted of trafficking in 3, 4-methylenedioxy-methamphetamine (“MDMA” or “ecstacy”) (OCGA § 16-13-31.1); possession of marijuana with intent to distribute (OCGA § 16-13-30 (j) (D); and possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b) (4), (5)). Both appeal from the trial court’s denial of their respective motions for new trial. In Case No. A11A1778, Jackson challenges the sufficiency of the evidence supporting his convictions. 1 In Case No. A11A2221, Esters contends that his trial counsel provided ineffective assistance. We discern no error and affirm in both cases.
On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict and [the defendant] no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia[,443 U. S. 307 , 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979)].
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(Citation, punctuation and footnotes omitted.)
White v. State,
So viewed, the trial evidence shows that on August 5, 2008, Jackson, who lived in Tennessee, decided to travel to Atlanta, Georgia to visit friends. Jackson invited his acquaintance and co-defendant, Patreecia Nelson, to accompany him on the trip.
Upon arriving in Atlanta, Jackson and Nelson met Esters at his apartment. Jackson and Esters entered the apartment, while Nelson stayed in the vehicle. While inside the apartment, Jackson observed Esters handling a lot of individual bags of marijuana and ecstacy pills and “looking for something to put his drugs in.” Shortly thereafter, Jackson and Esters exited the apartment and returned to the vehicle. Jackson opened the trunk of the vehicle, and stood by as Esters placed a shoe box inside. Jackson and Esters stood at the vehicle’s open trunk for approximately two or three minutes. They later closed the trunk and re-entered the vehicle. Jackson, Esters, and Nelson then left the apartment and began traveling back to Tennessee.
Two officers with the Resaca Police Department were conducting interstate traffic patrol and observed Jackson’s vehicle weaving between lanes. Nelson was driving the vehicle. The officers conducted a traffic stop of the vehicle based upon the failure to maintain lane violation.
After approaching the vehicle, the officer observed that each of the occupants was extremely nervous, and Jackson was “shaking real bad[.]” As part of the ongoing traffic stop, the officer performed a free air search around the vehicle with his trained K-9 unit dog, and the dog alerted on the trunk of the vehicle. A search of the vehicle’s trunk then ensued.
Upon searching the trunk, the officers recovered Jackson’s bag, which contained 750.1 grams/26.45 ounces of marijuana packaged in three individual bags, 29.67 grams of MDMA or ecstacy pills packaged in a separate cellophane bag, and a loaded handgun. Jackson informed the officers that the handgun belonged to him. Jackson, Esters, and Nelson were arrested and charged jointly as parties to the drug offenses. 2
Jackson testified in his defense at trial. He initially testified that he had seen Esters with marijuana and ecstacy, but later gave inconsistent testimony that he was unaware of the ecstacy pills until after the traffic stop. Jackson admitted that he was aware that marijuana was inside the vehicle and that he would have driven *274 Esters to Tennessee with the drugs if they had not been stopped by the officers.
Esters also testified at trial. The trial evidence included a photograph showing Esters in possession of the handgun that had been seized during the search of the vehicle’s trunk. Esters, however, denied having had any access to the vehicle’s trunk. He further denied having had any prior knowledge or ownership of the contraband.
Case No. A11A1778
1. Jackson contends that the trial evidence was insufficient to support his convictions. His contention is without merit.
(a) Joint Constructive Possession. Although Jackson was not driving the vehicle in which the contraband was found at the time of the stop, he was the owner of the vehicle.
Under Georgia law, the owner of an automobile is presumed to be in possession and control of any contraband found in the automobile, but this presumption is rebuttable by evidence of equal access to the contraband by others. . . . However, the equal access rule, conceptually and historically, has no application where, as here, all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of that contraband.
(Citations, punctuation and footnotes omitted.)
White,
supra,
Here, Jackson, Esters, and Nelson were all charged as parties to the drug and weapon offenses. The trial evidence set forth above established circumstantially that Jackson and Esters had equal access to the contraband and were in joint constructive possession of it. Notwithstanding any conflicts or inconsistencies in the evidence, 3 the jury was authorized to find that Jackson knew that Esters had *275 possession of the marijuana and ecstacy. The evidence also showed that Jackson allowed Esters to place the drugs in the trunk of his vehicle, and that Jackson knowingly transported the drugs in his vehicle. Moreover, an officer testified that Jackson had claimed ownership of the handgun.
Jackson’s “[presence, companionship, and conduct before and after the offense [s] are circumstances from which [his] participation in the criminal intent may be inferred.” (Citation and punctuation omitted.)
Robinson v. State,
(b) Trafficking in MDMA. Under OCGA § 16-13-31.1, the felony offense of trafficking in MDMA is committed when a person knowingly possesses 28 grams or more of the MDMA drug substance. The evidence established that the amount of MDMA in Jackson’s constructive possession was 29.67 grams, exceeding that required for the trafficking offense. See id. The evidence therefore supported the trafficking conviction. Id.
(c)
Possession of Marijuana with Intent to Distribute.
OCGA § 16-13-30 (j) (1) proscribes that “[i]t is unlawful for any person to . . . possess with intent to distribute marijuana.” To support a conviction for this offense, the State must prove more than mere possession or intent for personal use. See
Pitts v. State,
Here, Jackson testified that he had observed Esters handling “lots” of marijuana. The testimony of the officers established that the marijuana discovered in the vehicle weighed 750.1 grams or 26.45 ounces, which was in excess of one pound. The marijuana was packaged into three individual bags and had a street value of over
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$1,000. Significantly, the marijuana was found with a trafficking amount of MDMA and a loaded weapon, constituting evidence of involvement in the drug trade. See
Causey v. State,
[qjuestions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.
(Punctuation and footnote omitted.)
Ferrell v. State,
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(d)
Possession of a Firearm During the Commission of a Felony.
The trial evidence also authorized Jackson’s conviction for possession of a firearm during the commission of the drug felony offenses. OCGA § 16-11-106 (b) (4), (5) pertinently provides that a person commits a felony when he possesses a firearm “on or within arm’s reach” of his person during the commission of a felony crime involving the possession with intent to distribute marijuana or the trafficking of illegal drugs. “By adding the words ‘within arm’s reach,’ the legislature extended the application of the statute to include weapons to which a felon had immediate access in addition to those weapons the felon actually had on his person.”
Carswell v. State,
The evidence in this case showed that Jackson had immediate access to the handgun when he and Esters stood at the open trunk of the vehicle for approximately two or three minutes, depositing the drugs in Jackson’s bag, where the handgun was also located. As such, the jury could conclude that Jackson had been within arm’s reach of the handgun when the drugs and the handgun were placed together. See
Hall v. State,
Accordingly, Jackson’s convictions were authorized.
Case No. A11A2221
2. Esters contends that his trial counsel provided ineffective assistance.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington,466 U. S. 668 , 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the *278 Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.
(Citations and punctuation omitted.)
Bridges v. State,
(a) Esters first contends that his trial counsel was ineffective for failing to file a motion to suppress the contraband evidence. “When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (Citations and punctuation omitted.)
Spencer v. State,
Here, the officers stopped the vehicle for failure to maintain lane. “Failing to maintain one’s lane justifies a stop of a vehicle for a traffic violation [under OCGA § 40-6-48].” (Punctuation and footnote omitted.)
Hardaway v. State,
The officers were not required to have articulable suspicion of illegal drug activity in order to conduct the free air search outside the vehicle. We have previously held that
[t]he use of a drug sniffing dog to conduct a free air search around the exterior of a vehicle during the course of a lawful traffic stop does not implicate the Fourth Amendment under the United States Constitution. In fact, even without reasonable and articulable suspicion, an officer may use a *279 canine trained in drug detection to sniff a vehicle’s exterior. And, once the drug dog alerted, the officers had probable cause to search the car.
(Citations and punctuation omitted.)
State v. Simmons,
(b) Esters next argues that his trial counsel failed to adequately meet with him prior to trial and did not have sufficient time to prepare for trial. His claims, however, afford no basis for reversal. Significantly,
[Esters] fails to demonstrate how additional time spent with counsel prior to trial would have [benefitted] his defense. The complaint of insufficient meetings with trial counsel is not dispositive, as there exists no magic amount of time which counsel must spend in actual conference with his client.
(Citation and punctuation omitted.)
King,
supra,
At the motion for new trial hearing, trial counsel testified that during his trial preparations, he reviewed the State’s file, met with Esters, and developed the defense strategy. At trial, he examined the witnesses in accordance with the trial strategy. Esters has not pointed to any evidence favoring his defense that was not discovered or presented by trial counsel at trial. In the absence of evidence establishing that there was a reasonable likelihood that additional trial preparation would have changed trial counsel’s advice or the outcome of the trial, Esters’s claim fails. See
Hammett v. State,
Judgments affirmed.
Notes
We note that Jackson has failed to file or include in his brief an enumeration of errors, as required by OCGA § 5-6-40 and Court of Appeals Rules 22 (a) and 25 (a) (2). We nevertheless address Jackson’s arguments to the extent that they may be ascertained from his brief. See OCGA § 5-6-30 (Georgia’s Appellate Practice Act shall be liberally construed to avoid refusal to consider any points raised);
State v. Madison,
Although Nelson also was arrested and charged with the drug offenses, the jury acquitted her of the charges at trial.
“[T]he jury is authorized to believe or disbelieve all or any part of the testimony of witnesses.” (Citation and punctuation omitted.)
Reed v. State,
We note that in
Vines v. State,