Gerardo Reyes appeals from the judgment of conviction entered on a jury verdict finding him guilty of trafficking in methamphetamine in violation of OCGA § 16-13-31 (e). For the following reasons, we affirm.
1. Contrary to Reyes’s contention, the evidence was sufficient to support the guilty verdict.
The State presented the following evidence. A police officer attempting to serve an arrest warrant at a residence saw a man sitting in the driver’s seat of a car parked in front of the residence. The man in the car was later identified as Reyes. Because Reyes resembled the person the officer was attempting to serve, the officer walked toward the car to speak to Reyes. The officer saw that Reyes had a blanket in his hand and heard him cry out in a nervous and agitated manner as he approached. Before the officer said anything, Reyes stated, “I can’t go to jail, can you guys give me a break.” The officer saw that a rear window in the car had been broken out, and he saw Reyes put the blanket on the front passenger seat. When he reached the car, the officer saw what appeared to be the tip of a gun protruding from under the blanket on the front passenger seat. The officer ordered Reyes to get out of the car, and as he got out, the officer saw another gun on the driver’s floorboard. In a search of the car, the officer found a handgun under the blanket on the front seat and another handgun on the driver’s floorboard. In the search, the officer also found suspected methamphetamine concealed in a bag in a fold of the blanket that Reyes held in his hand and placed on the seat. As the officer picked up the blanket, Reyes spontaneously told the officer that the blanket was a birthday gift for his baby. Reyes also had $905 cash on his person. Evidence showed that Reyes did not own the car. The officer, who had training and experience relating to illegal narcotics, testified that the amount of the suspected methamphetamine had a street value of about $10,000. Aforensic chemist from the State Crime Lab testified that he tested and weighed the suspected
In his defense, Reyes testified that his father was the landlord at the residence; that he was there to “fix some pipes” and to collect the rent; and that the cash on his person was the collected rent money. Reyes said that the car “wasn’t moveable”; that it belonged to “[t]he guy that lives there”; and that he had been in the car for about ten minutes before the officer arrived because “the guy there” asked him to fix the car’s radio. Reyes said that nothing in the car belonged to him, and that he had no knowledge that any methamphetamine was in the car. He said that he had no recollection of a blanket in the car and never held a blanket in his hand, and he denied making any statements to the officer.
On appeal from his criminal conviction, Reyes is no longer entitled to the presumption of innocence, and the evidence is viewed in a light most favorable to the guilty verdict. Parker v. State,
[T]he law recognizes that possession can be actual or constructive. ... A person has actual possession of a thing if he knowingly has direct physical control of it at a given time. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.
Holiman v. State,
The evidence showed more than Reyes’s mere presence at the scene of the crime or mere spatial proximity to the methamphetamine. When the officer approached the car, Reyes was holding a blanket in his hand which he then placed down on the front passenger seat of the car. Reyes admitted that the blanket belonged to him; told the officer “I can’t go to jail”; and asked the officer to “give me a break.” The officer immediately discovered methamphetamine hidden in a
2. Reyes claims the trial court erred by failing to give his orally requested jury instruction on “mere presence” because this was his “sole defense.”
A trial court is required to instruct the jury sua sponte on a defendant’s “sole defense” if supported by some evidence. Tarvestad v. State,
Citing to Walden v. State,
Where an owner or driver of an automobile has exclusive possession of the automobile, the inference is that the owner or driver has exclusive possession of contraband found in the automobile. Farmer v. State,
As set forth above, the owner/driver and the two passengers in Walden, supra, were charged with joint constructive possession of the
Based on the facts in the present case, the State did not rely on a presumption that Reyes, the sole occupant of the car, had exclusive possession of the methamphetamine found in the car, and the trial court gave no such jury instruction. Under these circumstances, Reyes had no right to jury instructions raising the rebuttable presumption to support his “sole defense” that he was “merely present” in the car and did not have possession of the contraband. The trial court did not err by failing to instruct the jury on a rebuttable presumption that the methamphetamine found hidden in a car was in the exclusive possession of the car’s owner.
4. Reyes contends that the trial court erred by failing to instruct the jury on knowledge as an essential element of the offense of trafficking in methamphetamine.
Under OCGA § 16-13-31 (e), a person commits the offense of trafficking in methamphetamine when he “knowingly sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine ... or any mixture containing . . . methamphetamine. . . .” Specifically, Reyes contends the trial court failed to instruct the jury that knowledge is an essential element of the crime of trafficking in methamphetamine, and that the State had the
Because Reyes failed to object to the jury instructions given at the trial, any alleged error in the instructions as given is reviewed on appeal only to determine if those instructions constituted “plain error.” OCGA § 17-8-58 (b); State v. Kelly,
First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
Kelly,
“[J]ury instructions must be read and considered as a whole in determining whether the charge contained error.” Hines v. State,
Considered as a whole, the above instructions substantially covered the knowledge instruction that Reyes claims should have been given. Copeland v. State,
5. Reyes claims that his trial counsel was ineffective because he failed to object to the trial court’s failure to instruct the jury on “mere presence” as his “sole defense.”
To obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel’s performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. Strickland v. Washington,466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Terry v. Jenkins,280 Ga. 341 , 342 (627 SE2d 7 ) (2006). To establish deficient performance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. Strickland,466 U. S. at 689-690 ; Franks v. State,278 Ga. 246 , 250 (599 SE2d 134 ) (2004). In considering adequacy of performance, trial counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland,466 U. S. at 690 . “A claim of ineffective assistance of counsel is a mixed question of law and fact: we accept the trial court’s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.” Franks,278 Ga. at 250 .
Connelly v. State,
We find no basis for concluding that trial counsel’s failure to object to the lack of a jury instruction on “mere presence” was deficient performance. As set forth in Division 2, supra, the defense of “mere presence” at the scene of a crime did not constitute Reyes’s “sole
Judgment affirmed.