Brookins v. State , 202 Ga. App. 759 ( 1992 )

McMurray, Presiding Judge.

Defendant Brookins, along with three co-defendants, was charged by indictment with the offense of trafficking in cocaine. A jury returned a verdict of guilty as to defendant Brookins and two of the co-defendants while the third co-defendant was acquitted. We are concerned only with the appeal by defendant Brookins of her conviction of trafficking in cocaine. Held:

Defendant enumerates as error the denial of her motion for directed verdict of acquittal made at the close of the State’s evidence. A directed verdict of acquittal is authorized where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. Leonard v. State, 197 Ga. App. 221, 223 (3) (398 SE2d 250). “On appellate review of the denial of a motion made at the close of the State’s case in chief, ‘the reviewing court can consider all the evidence in the case in determining whether the trial court erred in overruling the motion.’ Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743) (1975); Hall v. State, 181 Ga. App. 697 (353 SE2d 614) (1987); Causey v. State, 154 Ga. App. 76 (267 SE2d 475) (1980).” Rose v. State, 195 Ga. App. 399, 400 (2) (393 SE2d 459).

Law enforcement officers obtained a search warrant for a house rented by Nannette Powell, one of the co-defendants. Upon entry, the officers found five persons present. Defendant Brookins was exiting the bathroom. A small quantity of marijuana was found in a plastic bag on the sink in the bathroom. In a suitcase in one of the bedrooms, 149.8 grams of cocaine were found concealed in a false-bottomed cookie can. An additional 12.4 grams of cocaine were found in an inside pouch of the suitcase. Scales, a handgun, and a large quantity of cash, including a $20 bill used by an informant to make a drug purchase at the house, were also found during the search.

Defendant Brookins argues that there was no evidence establishing her possession of the cocaine. Nannette Powell testified that shortly before the search two of her cousins, defendant Brookins and co-defendant Mack, arrived for a visit. Defendant Brookins and co-defendant Mack arrived together by automobile and each had a medium-sized suitcase which they carried into the children’s bedroom which had been designated for their use by Nannette Powell.

The evidence is conflicting and confused as to which bedroom was assigned to the visitors and which was retained by Nannette Powell. Construed to uphold the verdict, the evidence shows that Nannette Powell and her family did not own a suitcase and that the suitcase containing the cocaine was found in the bedroom assigned to defendant Brookins and co-defendant Mack. However, there were no clothes in the suitcase containing the cocaine and no other means provided by the evidence to determine the owner of that suitcase. While it may have been defendant Brookins’ suitcase, the evidence is equally consistent with a hypothesis that it belonged to and was within the sole possession of co-defendant Mack. “It long has been the law of this state that where the evidence tends equally to sustain two inconsistent propositions, neither can be said to have been established by legitimate proof and certainly not through the guise of circumstantial evidence.” In re B. J. S. & R. S., 174 Ga. App. 515, 517 (330 SE2d 186). Mere presence, association or suspicion, without any evidence to show further participation in the commission of the crime is insufficient to authorize a conviction. Mattox v. State, 196 Ga. App. 64, 66 (3) (395 SE2d 288). There was no basis upon which a rational trier of fact could determine beyond a reasonable doubt that defendant Brookins had possession or even any knowledge whatsoever of the cocaine. The evidence does not authorize the conviction of defendant Brookins of trafficking in cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Ridgeway v. State, 187 Ga. App. 381 (370 SE2d 216).

Judgment reversed.

Sognier, C. J., Birdsong, P. J., Carley, P. J., and Cooper, J., concur. Pope, Beasley, Andrews, JJ., and Judge Arnold Shulman dissent.