Ellison v. State , 265 Ga. App. 446 ( 2004 )

594 S.E.2d 675 (2004) 265 Ga. App. 446

ELLISON
v.
The STATE.

No. A03A1973.

Court of Appeals of Georgia.

February 5, 2004.

Lindsey & Jacobs, Tamara Jacobs, Barnesville, for Appellant.

William T. McBroom, III, Dist. Atty., Joyce A. Bussey, Asst. Dist. Atty., for Appellee.

MILLER, Judge.

Following a jury trial, Alonzo Ellison was convicted of possession of marijuana with intent to distribute. He appeals, challenging the sufficiency of the evidence and asserting error in (i) statements made by the prosecutor during closing argument and (ii) the verdict form. We hold that the evidence was sufficient and that Ellison waived the alleged errors. Accordingly, we affirm.

Construed in favor of the verdict, the evidence showed that armed with a search warrant, police began using sledge hammers to knock down the entry doors to the residence of Brandon Grantling. Before they gained entry, an officer familiar with Ellison witnessed Ellison jump out the residence's back window and flee. A second officer also witnessed Ellison flee and took up the chase with the first officer, but they were unable to apprehend Ellison.

Once inside the residence, police discovered Grantling hiding next to his bed in his bedroom, with 32 yellow baggies of marijuana under the bed. They found additional marijuana throughout the home, including marijuana in the toilet, used marijuana cigarette butts in the living room, and seven red baggies of marijuana on the kitchen table near loose marijuana and empty baggies. Grantling confessed that he owned the marijuana in the yellow baggies, in the bathroom, and in the living room, but stated that the marijuana and the red baggies of such in the kitchen belonged to Ellison. He explained that just before police arrived, he had allowed Ellison into his residence so that Ellison could use his kitchen to package marijuana belonging to Ellison.

Ellison was indicted for possession of marijuana with intent to distribute and tried before a jury. He chose not to testify at trial. At Ellison's request, the court charged the jury on the lesser included offense of possession of marijuana. The jury found him "guilty of possession of marijuana and guilty of intent to distribute marijuana." The court sentenced Ellison to ten years confinement for possessing marijuana with intent to distribute, and he moved for a new trial, which was denied. He now appeals.

1. Ellison first challenges the sufficiency of the evidence, arguing that his conviction was based solely on the uncorroborated testimony of an alleged accomplice in violation of OCGA § 24-4-8. Although corroboration of the testimony by a single accomplice is necessary, that corroborating evidence itself need not be sufficient to warrant conviction, but need only tend to connect and identify defendant with the crime. Cody v. State, 195 Ga.App. 318(1), 393 S.E.2d 692 (1990). The corroborating evidence may consist entirely of circumstantial evidence and may include defendant's conduct before and after the crime was committed. Klinect v. State, 269 Ga. 570, 572(1), 501 S.E.2d 810 (1998). "Whether the corroborating evidence is sufficient is a matter for the jury, and even slight evidence of corroboration connecting an accused to a crime is legally sufficient." (Citations omitted.) Id.; accord Cody, supra, 195 Ga.App. at 318(1), 393 S.E.2d 692.

Here police witnessed that Ellison was in a residence that had marijuana in many rooms, including some in the process of being bagged in the kitchen. The marijuana in the kitchen was in red baggies as opposed to the yellow baggies found near the accomplice, implying different ownership. Police witnessed Ellison jumping out of the residence's back window and fleeing the scene upon their attempting to gain entry to the residence, showing Ellison's consciousness of guilt. We find that this evidence was sufficient corroboration to authorize the jury to convict Ellison of the crime charged. See Cody, supra, 195 Ga.App. at 319(1), 393 S.E.2d 692; see also Davis v. State, 154 Ga.App. 803, 804(2), 269 S.E.2d 874 (1980) (accomplice's testimony corroborated by defendant's rapid flight from scene, which evinces awareness of guilt); Oliver v. State, 146 Ga.App. 551, 552(2), 246 S.E.2d 734 (1978) (defendant's rapid flight from crime scene corroborated accomplice's testimony).

2. Ellison contends that the trial court erred in allowing the prosecution to comment on his silence during closing argument. However, he failed to object contemporaneously to any of the State's closing argument and has therefore waived this enumeration of error. Braithwaite v. State, 275 Ga. 884, 885(2)(a), 572 S.E.2d 612 (2002). "A defendant must object to the alleged impropriety at the time it occurs in order to afford the trial court the opportunity to take remedial action. [Cit.]" Miller v. State, 267 Ga. 92(2), 475 S.E.2d 610 (1996).

Moreover, the prosecutor's comments, which noted only that no one had contradicted the testimony of the accomplice, were not an improper comment on Ellison's silence in any case. Where the prosecutor's comments are not directed at the defendant's decision not to testify but are directed at defense counsel's failure to rebut or explain the State's evidence, the comments are permissible. Johnson v. State, 271 Ga. 375, 383(15)(a), 519 S.E.2d 221 (1999); see Ranger v. State, 249 Ga. 315, 319-320(3), 290 S.E.2d 63 (1982).

3. Ellison argues that the trial court allowed an illegal verdict that convicted him both on the charge of possession with intent to distribute and on the lesser included charge of mere possession. This argument fails for at least two reasons.

First, the verdict found Ellison guilty only of possession of marijuana with intent to distribute; it did not find him guilty of mere possession. It read: "We, the jury, find the defendant guilty of possession of marijuana and guilty of intent to distribute marijuana." Thus, the jury simply broke down the verdict into the two primary findings necessary to find Ellison guilty of the offense of possessing marijuana with intent to distribute. See Pitts v. State, 260 Ga.App. 553, 556-557(3), 580 S.E.2d 618 (2003); see generally OCGA § 16-13-30(j)(1). Ellison so understood the verdict, since he neither raised an objection to the verdict at the time it was rendered nor raised an objection when the court sentenced him on the felony charge of possession with intent to distribute with no reference to the lesser charge of mere possession. Indeed, failure to object to the form of the verdict at the time it was rendered waives any complaint that the verdict was inconsistent, confusing, or otherwise irregular. Mayorga v. State, 225 Ga.App. 496, 497, 484 S.E.2d 292 (1997); Wilkes v. State, 210 Ga.App. 898-899(1), (2), 437 S.E.2d 837 (1993); Bissell v. State, 153 Ga.App. 564, 566-567(2), 266 S.E.2d 238 (1980).

Second, there is nothing improper with a jury finding a defendant guilty of both the charged offense and a lesser included offense. When the same conduct establishes the commission of more than one crime, a defendant may be prosecuted and found guilty of each crime but may not be sentenced for both. Gooch v. State, 249 Ga.App. 643, 648(5), 549 S.E.2d 724 (2001). When the jury finds the defendant guilty of both crimes, the lesser offense merges into the greater offense and the court sentences on the greater offense only. Leslie v. State, 211 Ga.App. 871, 872, 440 S.E.2d 757 (1994); see Kinney v. State, 234 Ga.App. 5, 7-8(2), 505 S.E.2d 553 (1998); see also Gooch, supra, 249 Ga.App. at 648(5), 549 S.E.2d 724. Inasmuch as simple possession of marijuana is a lesser included offense of possession of marijuana with the intent to distribute (see Smiley v. State, 241 Ga.App. 712, 713, 527 S.E.2d 585 (2000)), the court properly sentenced Ellison on the greater charge only (assuming the verdict could be construed to have found Ellison guilty of the mere possession crime also).

Judgment affirmed.

SMITH, C. J., and RUFFIN, P. J., concur.