Mari Wilene Poteet v. State ( 2021 )

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
January 7, 2021
In the Court of Appeals of Georgia
A20A1728. POTEET v. THE STATE.
HODGES, Judge.
A jury convicted Mari Wilene Poteet of possession of methamphetamine
(OCGA § 16-13-30 (a)). Poteet appeals, contending that the evidence against her is
insufficient to sustain her conviction and that her trial counsel was ineffective. For
the reasons that follow, we agree that the evidence is insufficient and we reverse her
conviction.
“On appeal from a criminal conviction, a defendant no longer enjoys the
presumption of innocence, and the evidence is viewed in the light most favorable to
the guilty verdict.” (Citation omitted.) Walker v. State, 349 Ga. App. 188 (825 SE2d
578) (2019).
So viewed, the evidence shows that, following a controlled buy of
methamphetamine from Douglas Cathey by a confidential informant, police executed
a search warrant for Cathey’s home. Poteet was inside Cathey’s home at the time.
During the search of the home, police located a glass pipe inside a flower pot. The
pipe tested positive for methamphetamine. The pipe also had a red tint on it that
looked to the police officers like residue from red or purple lipstick. Both Cathey and
Poteet denied ownership of the pipe. When police and a parole officer at the scene
asked Poteet if she would pass a drug test for methamphetamine, she responded that
she did not know if she would. Specifically, Poteet told them that she used
methamphetamine approximately three days prior.
Importantly, no evidence was introduced that the pipe had been tested for
finger prints or DNA, or that the reddish substance on the pipe was tested to confirm
if it was lipstick. There was also not evidence that Poteet owned any lipstick, nor that
any lipstick was found in the search of Cathey’s home. Lastly, there was no evidence
that the pipe had been recently smoked.
Poteet was arrested and indicted for possession of methamphetamine.
Following a jury trial, she was convicted. The trial court denied Poteet’s motion for
new trial, as amended, and she now appeals.
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1. Poteet contends the evidence against her is insufficient to sustain her
conviction.1 We agree.
It is well-settled that
[w]hen an appellant challenges the sufficiency of the evidence to
support [her] conviction, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. The appellant no longer enjoys a presumption of
innocence, and an appellate court determines only the legal sufficiency
of the evidence and does not weigh the evidence or assess the credibility
of the witnesses.
(Citations and punctuation omitted.) Armstrong v. State, 298 Ga. App. 855, 856 (1)
(681 SE2d 662) (2009). However, even under this forgiving standard, “the State is
required to produce evidence of some meaningful connection between the defendant
and the contraband.” (Citation and punctuation omitted.) Brown v. State, 285 Ga.
App. 330, 331 (646 SE2d 273) (2007).
1
We note that counsel for Poteet failed to cite any case law whatsoever in
support of this enumeration. Accordingly, we could deem the enumeration
abandoned. See, e.g., Smith v. State, 214 Ga. App. 631, 633 (4) (448 SE2d 906)
(1994); Court of Appeals Rule 25 (c). In the interest of justice, however, we will
exercise our discretion to address the enumeration.
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Poteet was convicted for possession of methamphetamine as a result of the pipe
with drug residue being found in the flower pot in Cathey’s residence.
A person who knowingly has direct physical control over a thing at a
given time is in actual possession of it. 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. The law recognizes that possession may be
sole or joint. If one person alone has actual or constructive possession
of a thing, possession is sole. If two or more persons shared actual or
constructive possession of a thing, possession is joint.
(Citation and punctuation omitted.) Blount v. State, 181 Ga. App. 330, 332 (2) (352
SE2d 220 (1986). Under Georgia law, although
[p]ossession [of drugs] may be constructive, . . . spatial proximity alone
is insufficient to prove constructive possession of contraband. Mere
presence, without proof of participation, is insufficient to support a
conviction. Rather, the State must show that [Poteet] had the power and
intent to exercise control over the [drugs].
(Citations and punctuation omitted.) Brown, 285 Ga. App. at 331. Indeed,
[a] connection can be made between a defendant and contraband found
in [her] presence by evidence which shows that the contraband was
discovered on premises occupied and controlled by the defendant with
no right of equal access and control in others. Such occupation and
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control may be inferred when the accused is the owner or tenant of the
premises upon which the illicit drugs are discovered. However, a mere
occupant, as distinguished from a resident, does not necessarily have the
requisite control over the premises to authorize the inference that [she]
possesses all property found thereon. If such were the case, a person’s
mere presence at the scene of the discovery of illegal drugs would
authorize [her] conviction, and that plainly is not the law.
(Citation omitted.) Id. at 331-332.
As no direct evidence connects [Poteet] to the [pipe with
methamphetamine residue] found in the [flower pot in Cathey’s
residence], if [her] conviction for possession of [methamphetamine] is
to be sustained it must be based upon circumstantial evidence. When a
conviction depends entirely on circumstantial evidence, however, the
circumstantial evidence must be consistent with the hypothesis of guilt
and must exclude every other reasonable hypothesis.
Morrison v. State, 220 Ga. App. 151, 153 (1) (a) (469 SE2d 686) (1996).
Here, it is undisputed that Poteet was not in actual possession of the drugs,
which were found inside of a flower pot in a residence which is neither owned nor
occupied by Poteet. The evidence relied upon by the State to connect Poteet to the
drugs on the pipe, other than her presence in the residence where it was located, is the
presence of a substance which may or may not be lipstick residue on the pipe,
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Poteet’s gender, and Poteet’s admission that she smoked methamphetamine recently
enough that she might fail a drug screen. That is all.
There is no evidence that the residue on the pipe is actually lipstick. Even if we
assume the residue is lipstick, there is no evidence that Poteet owned any lipstick, let
alone the particular lipstick found on the pipe. The mere presence of a pipe with
lipstick on it in the vicinity of a female does not constitute direct evidence of
possession by that female, as the State essentially argues. Likewise, nor does the
presence of lipstick on a pipe definitively eliminate the possibility that the drugs on
the pipe are possessed by a male, particularly when that male is the owner of the
residence, as the State essentially argues.2 Moreover, there is no evidence as to when
the pipe was last smoked, let alone that it was smoked during the time Poteet was at
Cathey’s house. There is also no DNA or fingerprint evidence linking Poteet to the
drug-laced pipe. Indeed, the totality of the evidence against Poteet is that she is a
female drug user in the vicinity of a pipe in someone else’s house that had drug, and
2
Indeed, in support of its exoneration of Cathey as the owner of the pipe due
to the presence of lipstick on it, the State asked the following questions: “Detective,
based upon your observations and what you saw of Mr. Cathey, the fact that he was
in [a] relationship with Ms. Poteet, did he appear to be a heterosexual male?” and
“Based upon your observations of him, did you have any concern that he would be
any different than a typical male in the northern parts of Georgia?” The reliance upon
gender stereotypes only highlights the deficiencies in the evidence in this case.
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potentially lipstick, residue on it. This is insufficient circumstantial evidence to prove
Poteet’s possession of the drugs, as it does not exclude every other reasonable
hypothesis – such as that the methamphetamine on the pipe was solely possessed by
Cathey, the actual owner of the residence, or that it had been possessed by a different
person who was a prior guest in Cathy’s home. See Morrison, 220 Ga. App. at 152
(1) (a) (“When the circumstantial evidence supports more than one theory, one
consistent with guilt and another with innocence, it does not exclude every other
reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt
beyond a reasonable doubt. While the determination of whether the circumstances are
sufficient to exclude every reasonable hypothesis except that of defendant’s guilt is
usually made by the jury and while we must view the evidence in the light most
favorable to the jury verdict, we must not be blinded by that verdict when a
reasonable hypothesis of innocence appears from the evidence or lack thereof, and
may declare such as a matter of law.”) (citations and punctuation omitted).
Accordingly, Poteet’s conviction must be reversed. See, e.g., Brown, 285 Ga.
App. at 331-333 (holding that evidence was insufficient to support conviction of
known drug dealer for trafficking who was standing in front of a home with drugs
inside, even though he fled the scene, when there was nothing connecting the
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defendant to the contents of the house); Stevens v. State, 245 Ga. App. 237, 239 (1)
(537 SE2d 688) (2000) (holding that evidence was insufficient to support conviction
when defendant was present in a different room of a house from where drugs were
located and nothing connected the defendant to the contents of the house); Morrison,
220 Ga. App. at 152-153 (1) (a) (holding that evidence was insufficient to support
conviction related to large amount of drugs located behind a refrigerator when
defendant did not reside in the house, was one of multiple adults in the house at the
time police arrived, and nothing connected the defendant to the drugs); Blount, 181
Ga. App. at 332-333 (2) (holding that evidence was insufficient to sustain conviction
of defendant who was present at the time a search warrant was executed because
nothing connected him to the drugs in the house or in his wife’s car; the fact that
men’s clothing was in his wife’s trunk where the drugs were located did not connect
the defendant because there was no evidence regarding to whom the clothes
belonged).
2. In light of our decision in Division 1, we need not address Poteet’s other
enumeration of error.
Judgment reversed. McFadden, C. J., and Doyle, P. J., concur.
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