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JOHNSON v. THE STATE

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Court of Appeals of Georgia.

JOHNSON v. THE STATE.

No. A15A1665.

Decided: February 24, 2016

David Joseph Walker, for Appellant. Denise D. Fachini, Lauren Taylor Warbington, for Appellee.

Following a bench trial, Deron Johnson was convicted of possession of a firearm by a convicted felon,1 possession of cocaine,2 and possession of less than one ounce of marijuana.3 On appeal, Johnson contends that the evidence was insufficient to support his conviction for possession of cocaine, and the court erred in sentencing him as a recidivist under OCGA § 17–10–7(c) when one of the three prior felony convictions used in aggravation of his sentence was for simple possession of cocaine. For the reasons set forth infra, we affirm Johnson's convictions but vacate his sentence and remand to the trial court for resentencing in a manner consistent with this opinion.

Viewed in the light most favorable to the trial court's judgment,4 the record reflects that on August 6, 2013, Johnson returned to his then-girlfriend's home after a multi-day absence. Upon his arrival, the girlfriend and her aunt informed Johnson that the couple's infant daughter was ill and needed immediate medical attention. But rather than allow his girlfriend to use the car to seek care for their child, Johnson insisted that she instead drive him to Albany.

While Johnson and his girlfriend argued, both she and her aunt observed that Johnson was in possession of a handgun that he often carried and kept under his pillow while sleeping. The women also observed Johnson go into a bathroom, retrieve a plastic bag of what appeared to be marijuana from under the sink, weigh the bag on a set of scales, and then take his belongings, including a small brown or black bag, outside. Then, when the girlfriend's aunt offered to drive Johnson to Albany so that her niece could take the couple's child to the hospital, Johnson became visibly angrier and said “that's what makes me want to kill y'all bitches up in here.” At that point, the aunt called 911, and Johnson went outside and sat on the back steps to the home.

When law enforcement arrived, the girlfriend and her aunt helped officers retrieve the firearm from the small brown or black bag inside the trunk of Johnson's vehicle, and the girlfriend then permitted the officers to search the home. A canine unit alerted to the presence of illegal contraband near the steps to the home's backdoor, where Johnson had been sitting for some time prior to the police arriving. And behind a loose panel of siding near the stairway, officers located side-by-side plastic bags containing marijuana and cocaine. Johnson was later indicted for and convicted of the offenses enumerated supra. This appeal follows.

1. First, Johnson contends that the evidence was insufficient to sustain his conviction for possession of cocaine.5 Specifically, Johnson argues that the evidence as to this offense was entirely circumstantial and failed to exclude every hypothesis except for his guilt. We disagree.

To begin with, 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.”6 Nevertheless, a finding of constructive possession must be “based upon some connection between the defendant and the contraband other than spatial proximity.”7 Indeed, 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.”8 Finally, when the State's constructive-possession case is based entirely on circumstantial evidence, the law requires that “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”9 But it is well established that the question of whether circumstances were sufficient in a given case to exclude every reasonable hypothesis except that of the defendant's guilt is a question for the finder of fact-be that a jury or judge.10 And it is only when the evidence is insupportable as a matter of law that “the judgment of conviction may be disturbed, even [when] the evidence is entirely circumstantial.”11

Here, as further discussed supra, the record reflects that both Johnson's ex-girlfriend and her aunt saw him place a plastic bag containing what they believed to be marijuana onto a scale before taking the bag with him when he went out the backdoor of the home. Johnson then sat alone on the steps at the back of the home until police arrived, and plastic bags containing both marijuana and cocaine were found sitting side-by-side behind a panel beside the steps where Johnson had been sitting. In other words, the cocaine was located in a bag sitting directly next to the bag of marijuana that Johnson was seen handling shortly before exiting the home to sit on the stairway, near which both bags were hidden and discovered. In light of this evidence, which showed more than Johnson's mere spatial proximity to the cocaine, the finder of fact was authorized to conclude that the circumstances excluded any reasonable hypothesis that Johnson did not possess both the marijuana and cocaine hidden side-by-side behind the same panel.12

2. Next, Johnson argues that the trial court erred in sentencing him as a recidivist under OCGA § 17–10–7(c) when one of the three prior felony convictions used in aggravation was for simple possession of cocaine.

The record reflects that at the end of the State's case in chief, the prosecutor tendered into evidence a certified copy of a 1991 conviction for felony theft by taking of a motor vehicle to establish that Johnson was in possession of a firearm as a convicted felon. Then, during sentencing, the State tendered certified copies of a 1995 felony conviction for possession of a sawed-off shotgun and a 2003 felony conviction for possession of cocaine. The State had previously provided Johnson with notice of its intent to use all three prior convictions in aggravation of sentencing.

After finding Johnson guilty of possession of a firearm as a convicted felon, simple possession of cocaine, and possession of less than one ounce of marijuana, the trial court proceeded to sentence Johnson under OCGA § 17–10–7(c), ordering him to serve five years as to the possession-of-a-firearm charge (count one); three years to serve on the possession-of-cocaine charge, concurrent with count one; and twelve months to serve on the possession-of-marijuana charge, also concurrent with count one. On appeal, Johnson argues that in doing so, the trial court erred.

OCGA § 17–10–7(c) provides, in relevant part, that with only certain exceptions,

any person who, after having been convicted under the laws of this state for three felonies ․, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.13

On the other hand, OCGA § 17–10–7(a) provides, in relevant part, that with only certain exceptions,

any person who, after having been convicted of a felony offense in this state ․, commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

Both OCGA § 17–10–7(a) and (c) are subject to an exception provided by OCGA § 17–10–7(b.1), which specifies that “[s]ubsections (a) and (c) of this Code section shall not apply to a second or any subsequent conviction for any violation of subsection (a), paragraph (1) of subsection (i), or subsection (j) of Code Section 16–13–30.”14

Johnson contends on appeal that the trial court erred in sentencing him under OCGA § 17–10–7(c) when one of the three prior felonies admitted against him was for simple possession of cocaine in violation of OCGA § 16–13–30(a).

As to his conviction for possession of a firearm by a convicted felon, the trial court properly sentenced Johnson under OCGA § 17–10–7(c) when the State presented certified copies of three prior felony convictions, making his possession-of-a-firearm conviction a fourth felony.15 However, as to his conviction for possession of cocaine under OCGA § 16–13–30(a), following the explicit and plain terms of OCGA § 17–10–7(b.1), Johnson could not be sentenced as a recidivist under OCGA § 17–10–7(c) because one of the three prior felony convictions used in aggravation was also a conviction under OCGA § 16–13–30(a).16 Nevertheless, nothing would have precluded the trial court from using one of the other two prior felony convictions to sentence Johnson under OCGA § 17–10–7(a) for his conviction for possession of cocaine under OCGA § 16–13–30(a).17 The trial court indicated on the record that it believed it was mandatory to sentence Johnson without the possibility of parole;18 however, the court also hedged by further providing that, “[t]o the extent the [c]ourt might have any discretion to probate any portion of the sentence, the [c]ourt chooses to exercise that discretion by not probating any portion of the sentence.” Nevertheless, because the court was operating under an incorrect assumption, and because the final disposition reflects only that Johnson was sentenced under OCGA § 17–10–7(c), we must vacate the trial court's sentence and remand for the court to resentence Johnson in a manner consistent with this opinion.19

Judgment affirmed, sentence vacated, and case remanded with direction.

DILLARD, Judge.

ELLINGTON, P. J., and RICKMAN, J., concur.

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