Defendant Smith appeals his conviction on 14 criminal charges, including possession of cocaine with intent to distribute, criminal attempt to possess cocaine with intent to distribute, burglary, aggravated assault with a deadly weapon, 4 counts of terroristic threats (upon Jimmie King, Sharon King, Keisa King, and Cora Ammons), criminal attempt to commit extortion, 3 counts of false imprisonment (of Jimmie King, Sharon King, and Keisa King), possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Held:
1. Defendant contends that the State failed to prove his guilt beyond a reasonable doubt. The evidence viewed in the light most favorable to upholding the jury’s verdict shows that co-defendant Hollis was distributing cocaine in and around Unionville when he sold out and went to get a resupply from co-defendant Stuckey. Hollis was accompanied by defendant. Stuckey went to the yard behind a duplex occupied by the King family and reported back that his cache of cocaine was missing. Defendant then accompanied Hollis and Stuckey in a search for the cocaine which they were unable to find in the dark. After some discussion the three concluded that Jimmie King, who had been in the back yard, must have stolen the missing cocaine. Defendant and Stuckey walked around to the front of the apartment and defendant kicked in the door. Jimmie King, his wife Sharon
In order to show that defendant wаs guilty of the offense of possession of cocaine with intent to distribute, the evidence must establish, along with other elements of the crime, that defendant alone or jоintly with another had actual or constructive possession of cocaine. There is clearly no evidence of actual possession by defendant. Constructive possession is shown where one knowingly has both the power and the intention at a given time to exercise authority or control over a thing. Shropshire v. State,
Every person concerned in the commission of a crime is a party thereto and may bе charged with and convicted of commission of the crime. “A person is concerned in the commission of a crime only if he: . . . Directly commits the crime . . . [or] Intentionally aids or abets in the commission of the crime. . . .” OCGA § 16-2-20 (b). The jury was authorized to conclude that defendant was either the perpetrator or an aider and abettor of eаch of the remaining charges of which defendant was convicted. The evidence showed much more than defendant’s mere presence at the scene of thеse crimes. Defendant plainly took an active role in the criminal conspiracy described by the evidence. Henderson v. State,
It was not necessary that the gun have been in defendant’s immediate possession for him to be convicted on the firearms charges. As defendant was a party to the crimes, he and his co-conspirator were resрonsible for the acts of the others. Defendant, being responsible for the acts of Stuckey, was in possession of the gun in violation of the penal provisions. Coursey v. State,
After carefully examining the record and transcript, we find that the evidence is not sufficient to authorize defendant’s conviction of possession of cocaine with intent to distributе. As to the remaining offenses of which defendant was convicted, we find that a rational trier of fact could reasonably find defendant guilty beyond a reasonable doubt of each of these offenses. Jackson v. Virginia,
2. Defendant contends that all of the charges merged into one conviction. The double jeopardy provisions invoked by this enumerаtion of error are set out in OCGA §§ 16-1-6 and 16-1-7.
The contention that the two drug charges merged is rendered moot by the reversal of defendant’s conviction of possession of cocaine with intent to distribute. “The offense of possession of a firearm during the commission of a felony does not merge into the felony upon convictions for both.” Wiley v. State,
3. Defendant’s remaining enumerations of error complain of the trial court’s refusal to givе requested instructions to the jury. The first two of these requests, for a charge on mistake of fact and on a person’s right to use force to protect a third person were not adjusted to any principle involved in the case or authorized by the evidence at trial. Grant v. State,
Nor did the trial court err in refusing to charge that the testimony of an aсcomplice must be corroborated. The requested charge was argumentative and in any event unnecessary since none of defendant’s convictions rested solely on the testimony of a single accomplice. Ross v. State,
Defendant’s final enumeration of error contends the trial court erred in giving the requested charge on evaluating a witness’ motive for testifying against defendant. To the extent that this charge was adjusted to the evidence, its substance was adequately covered in the trial court’s general charge which instructed the jury to consider the believability of witnesses as well as their interest and bias. Pace v. State,
Judgment affirmed in part and reversed in part.