STROUD v. the STATE.STROUD v. the STATE.
Following a jury trial, Kelly Stroud was convicted in Spalding County Superior Court of a single count each of possession of cocaine, failure to maintain lane, and driving with a suspended license. Stroud now appeals from the denial of his motion for a new trial, arguing that the evidence was insufficient to sustain his conviction for failure to maintain lane. Additionally, Stroud аsserts that the trial court erred in denying his motion to suppress and in refusing to give his requested jury instructions on equal access and circumstantial evidence. For reasons explained more fully below, we affirm Stroud‘s conviction for driving with a suspended license. We reverse, however, Stroud‘s conviction for failure to maintain lane, finding that the evidence was insufficient to support that conviction. We further find that in denying Stroud‘s
“On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocеnce and we therefore construe the evidence in the light most favorable to the jury‘s guilty verdict.” Marriott v. State, 320 Ga. App. 58, 58 (739 SE2d 68) (2013) (citation omitted). So viewed, the record shows that late on the evening of March 9, 2009, a patrol officer with the City of Griffin Police Department observed a car driven by Stroud traveling west on Broad Street. As the officer watched, the car “made a wide right turn onto 14th Street, heading northbound” and crossed into “the southbound lane of 14th Street.” The officer conducted a traffic stop of Stroud based on his alleged failure to maintain his lane. When the officer ran an identification check on Stroud, he learned that Stroud‘s driver‘s license had been suspended. Upon learning of the suspended license, the officer immediately arrested
Stroud moved to suppress the items seized from his car, arguing that their discovery resulted from an illegal search. At the hearing on the motion to suppress, which was held immediately before trial, the arresting officer testified that the search of Stroud‘s vehicle was not performed incident to his arrest, but instead was performed because police had to impound the car. The officеr further explained that an impound was necessary because Stroud, the car‘s sole occupant, lacked a valid license and therefore could not drive the car. The officer, however, provided no explanation for why the car had to be removed from the scene immediately — i.e., there was no evidence that the car was illegally or dangerously parked or that it was a hazard to traffic. When questioned about whether Stroud had been given the opportunity to call someone to retrieve the сar from the scene, the officer responded that he did not speak with Stroud about that possibility, but that a second officer was
The arresting officer also testified that he could not remember whether he searched the car before or after he had called for a tow truck, and he acknowledged the search might have occurred before he began the impound process. The State introduced into evidence the inventory sheet made as part of the car‘s impoundment, but neither the cocaine nor the crack pipe were listed on that sheet.1 The arresting officer indicated that he did not personally fill out the impound inventory sheet, and the sheet reflects that someone other than the arresting officer signed it on behalf of the police department. Additionally, the arresting officer could not say at what point after he seized the contraband the remainder of the car‘s contents were inventoried and the form completеd.
Based on this evidence, the trial court denied the motion to suppress, finding that because Stroud was being arrested, the law required that the car be impounded and its contents inventoried. Immediately following that ruling, the case proceeded to trial, at which the arresting officer gave testimony that was substantially similar to
Stroud testified in his own defense and admitted that he had been driving with a suspended license. Stroud also claimed that neither the pipe nor the cocaine belonged to him and that he was unaware those items were in his car. According to Stroud, because he was currently unemployed, he used his car to give people rides in exchange for cash. Just before the traffic stop, Stroud had dropped off a passenger, whom he could identify only as a white female. Based on Stroud‘s testimony as well as the testimony of the arresting officer, who acknowledged that the contraband was located in an area of the car accessible to passengers, Stroud requested a jury charge on equal access. Over Stroud‘s objection, the trial court declined to give this charge, finding that it did not apply because there were no other passengers present in Stroud‘s car at the time of the traffic stop.
The jury found Stroud guilty on all counts and the trial court sentenced him to 15 years for possession of cocaine and 12 months on each charge of driving with a suspended license and failure to maintain lane, with all sentences to run consecutively. Following his conviction Stroud filed a motion for a new trial, which was dеnied. This appeal followed.3
2. Stroud contends that the evidence was insufficient to sustain his conviction for failure to maintain lane. We agree.
Stroud was charged with a violation of
In an effort to avoid this result, the State cites Moore v. State, 234 Ga. App. 332 (506 SE2d 685) (1998), where this Court summarily held that an “arresting officer‘s testimony that he observed [the defendant] weave across the road was sufficiеnt to sustain the conviction for lane violations under
3. Stroud contends that the trial court erred in denying his motion to suppress the contraband found in his car because the search of that vehicle violated the Fourth Amendment.
At a hearing on a motion to suppress, the trial judge sits as the trier of fact. On appeаl from the grant or denial of such a motion, therefore, this Court must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court‘s findings as to disputed facts and credibility must be adopted unless clearly erroneous. However, we owe no deference to the trial court‘s conclusions of law and are instead free to apply anew the legal principles to the facts.
Watts v. State, 334 Ga. App. 770, 771 (780 SE2d 431) (2015) (citation and punctuation omitted).
“On a motion to suppress, the State bears the burden of proving that the search at issue did not violate the Fourth Amendment.” Watts, 334 Ga. App. At 775 (1)
The second situation where police may conduct a warrantless search of a car arises where the police have impounded the vehicle and, as part of the impoundment process, they take an inventory of the car‘s contents. Grimes, 303 Ga. App. at 812 (1) (b). Under the impound-inventory exception, where officers have a reasonable basis for impounding the car, the Fourth Amendment allows
police to conduct a warrantless, non-investigatory search of the vehicle, pursuant to standard police procedures, to produce an inventory of the vehicle‘s contents to protect the owner‘s property, or to protect police from potential danger or claims for lost or stolen property. Thus, justification for an inventory search is premised upon the validity of the impoundment of the vehicle.
Armstrong v. State, 325 Ga. App. 690, 691 (1) (754 SE2d 652) (2014) (citations and punctuation omitted; emphasis supplied). “Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property,” and police “may not use an impoundment or inventory as a medium to search for contraband.” Canino v. State, 314 Ga. App. 633, 639-640 (3) (725 SE2d 782) (2012) (punctuation and footnote omitted). See also Fortson v. State, 262 Ga. 3, 4 (1) (412 SE2d 833) (1992)
Reasonable necessity for impounding a defendant‘s vehicle has been found where the car is an out-of-state rental vehicle, Humphreys, 287 Ga. at 77 (7); the car cannot be safely or legally driven, id.; see also Davis v. State, 331 Ga. App. 171, 174 (769 SE2d 183) (2015); Ahmad v. State, 312 Ga. App. 703, 706 (1) (719 SE2d 563) (2011); Bell v. State, 302 Ga. App. 519, 520 (691 SE2d 573) (2010); the car is illegally or dangerously parked, Davis, 331 Ga. App. at 174; Armstrong, 325 Ga. App. at 691 (1); or the car is connected to a crime for which the defendant is arrested.
At the conclusion of the motion to suppress hearing, defense counsel moved for a directed verdict in Stroud‘s favor on the ground that the State had failed to carry its burden to show the search was illegal. The trial court denied both that motion and the motion to suppress, ruling that because Stroud‘s car was being impounded, an inventory search of the vehicle was legally required. Notably, although the crucial inquiry on this motion to supprеss was whether the impoundment of Stroud‘s car was
Additionally, we note that much of the evidence presented at the motion to suppress hearing — including the testimony of the arresting officer — conflicted with the same officer‘s assertion that the contraband was discovered during an inventory search of Stroud‘s vehicle. Instead, that evidence indicated that the cocaine was seized during a search of Stroud‘s car рerformed incident to his arrest. On remand, therefore, the trial court should also make factual and credibility findings to support its conclusion that the discovery of the contraband occurred during an inventory search. See Shaw v. State, 324 Ga. App. 670, 671-672 (751 SE2d 478) (2013) (finding that no evidence supported the conclusion that contraband was discovered
4. Stroud‘s opening brief asserted that the trial court erred in denying his requested jury instruction on equal access. In his reply brief, however, Stroud concedes that the trial court‘s refusal to give the equal access charge was appropriate because the trial court did not instruct the jury on presumption of possession. See State v. Johnson, 280 Ga. 511, 513 (630 SE2d 377) (2006) (“a сharge on equal access is appropriate to counter a jury instruction on presumption of possession, and is not necessary otherwise“). Accordingly, Stroud has abandoned this enumeration of error.
5. Stroud filed a written request to charge the jury on the language of what was then
Because Stroud failed to object to the jury charge given at trial, we must decide whether the refusal to give the requested charge constitutes plain error. See State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011). Under the plain error standard, we
Here, given that Stroud made a written request for the jury charge at issue, he has not affirmatively waived any error resulting from the triаl court‘s refusal to give that charge. See Durham v. State, 292 Ga. 239, 241 (3) (734 SE2d 377) (2012). Additionally, in 1994, the Supreme Court of Georgia established a bright-line rule requiring a trial court to charge the jury on former
In determining whether this error likely affected the outcome of the proceedings, we note that the Stаte‘s case against Stroud for possession of cocaine was entirely circumstantial. Specifically, the evidence of possession consisted of the circumstance that the contraband was found in Stroud‘s car.7 Given that the evidence against Stroud was not overwhelming and that Stroud offered in his defense what the jury might have viewed as a reasonable hypothesis supporting his innocence, we find
We also find that the trial court‘s refusal to give the requested charge seriously affected the fairness and integrity of the judicial procеedings below. This conclusion is based not only on the obvious nature of the error, but also on the fact that the error both lessened the State‘s burden and usurped, to some degree, the function of the jury. As former
Judgment affirmed in part, reversed in part, vacated in part, and case remanded with direction. McFadden, P. J., and Bethel, J., concur.
Notes
[E]vidence may be either direct or circumstantial or both. Direct evidence is evidence that points immediately to the question at issue. Evidence may also be . . . proved by a fact by inference. This is referred to as circumstantial evidence.
Circumstantial evidence is the proof of facts or circumstances by direct evidence from which you may infer other related or connected facts that are reasonable and justified in the light of your experience.
The comparative weight of circumstantial evidence and direct evidence on any given issue is a question of fact for you, the jury, to decide.
Where exactly in the car was the pipe [and] cocaine found — ‘between seats’ or ‘between the console [and] driver‘s seat? Why was there no drug test done [on defendant] after drugs were found in car? Why were fingerprints not taken [from] crack pipe?