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Docket Number

A95A2817

Attorney(S)

Joe C. Morris, for appellant. Thomas J. Charron, District Attorney, Debra H. Bernes, W. Thomas Weathers III, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judges

RUFFIN, Judge.

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Smart Summary

Case Summary: Emerson v. The State, A95A2817 (Ct. App. Ga. Mar. 6, 1996)

Factual and Procedural Background

Thomas Emerson was convicted in Cobb Superior Court of possessing cocaine and marijuana in violation of the Georgia Controlled Substances Act. He appealed the judgment of conviction and sentence following the denial of his motion for new trial. The evidence presented at trial (viewed in the light most favorable to the verdict) showed that Cobb County police officers observed a man attempting to sell crack cocaine near a van in a mobile home park. After a pat-down of that man revealed a pipe with suspected crack residue, officers investigated around a nearby trailer and found nearly fifty small plastic bags containing suspected crack residue and a crack pipe under the trailer. Officers knocked on the trailer's door; Emerson, who rented the trailer, answered, appeared agitated, and refused entry. An officer detected the odor of crack cocaine burning inside the trailer. The officers later obtained and executed a search warrant. Inside the trailer officers found numerous suspected controlled substances and drug paraphernalia across multiple rooms. Omar Lofton, present in the trailer, testified that the drugs and paraphernalia belonged to him and that he had hidden them between the two police visits; Emerson did not testify at trial. On appeal Emerson challenged (1) the sufficiency and treatment of a crime lab report regarding the marijuana and the trial court's refusal to publish the report to the jury, and (2) the sufficiency of the evidence to prove Emerson's knowledge of, or possession of, the drugs in the trailer given Lofton's testimony.

Legal Issues Presented

Whether the trial court erred in treating the crime lab report as cumulative and refusing to publish it to the jury, in light of an apparent inconsistency between the forensic chemist's trial testimony (that the leafy material tested positive for marijuana) and the written report (which indicated that "other items were not analyzed").
Whether the evidence was sufficient to support Emerson's convictions for possession of cocaine and marijuana, specifically whether the State proved Emerson had knowledge of the drugs or that the drugs belonged to him, in light of Lofton's admission that the drugs belonged to Lofton.

Arguments of the Parties

Appellant's (Emerson's) Arguments

Emerson argued that the evidence did not support the guilty verdict on the marijuana possession charge because the written crime lab analysis indicated that the suspected marijuana was not tested.
He contended the trial court erred in ruling the crime lab report was cumulative and in refusing to allow the report to be published to the jury, especially because the forensic chemist's testimony at trial contradicted the written report.
Emerson argued the State failed to prove he had knowledge of the drugs found in the trailer or that the drugs belonged to him, pointing to Lofton's testimony that the drugs belonged to Lofton and that Emerson lacked knowledge of them.

Appellee's (State's) Position

The State presented testimony from forensic chemist Steven Ellis that three tests were performed on the leafy green material and that it tested positive for marijuana.
The State tendered the written lab report into evidence and relied on the chemist's testimony and the totality of the search and discovery (including items found under and in the trailer and the odor detected at the doorway) to support its possession charges.
The State relied on the legal presumption that a lessee is in possession of the premises and items found there, and maintained that the evidence was sufficient for a jury to find Emerson guilty beyond a reasonable doubt despite Lofton's testimony.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Young v. State, 217 Ga. App. 575, 576 (458 S.E.2d 391) (1995)	The principle that a litigant who acquiesces in a ruling or fails to object waives the right to complain on appeal (acquiescence deprives further complaint).	The court applied Young to conclude Emerson waived any objection to the admission of the written lab report because he raised no objection to the report's admission for the record at trial.
Ray v. State, 205 Ga. App. 866 (424 S.E.2d 13) (1992)	Supports the proposition that where a defendant does not contest the identity of a substance, uncontested testimony that the substance tested positive can support a conviction.	The court noted Emerson did not contend at trial (nor on appeal) that the substance was anything other than marijuana, and cited Ray to support the conclusion that the chemist's positive test testimony was sufficient.
Taylor v. State, 195 Ga. App. 651, 652 (394 S.E.2d 604) (1990)	The rebuttable presumption that a lessee of premises is in possession of the entire premises and of contraband found therein; whether the presumption is rebutted is a jury question.	The court applied Taylor to explain that the jury could find Emerson possessed the contraband found in the trailer despite others having access, and that Lofton's claim of ownership was a credibility matter for the jury.
Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979)	The sufficiency-of-the-evidence standard on appeal: whether, 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 court invoked Jackson to affirm that, under that standard, the evidence was sufficient to sustain Emerson's convictions.

Court's Reasoning and Analysis

The court conducted a two-part analysis corresponding to Emerson's principal appellate claims.

Analysis of the crime lab report / marijuana testing issue:

The forensic chemist, Steven Ellis, testified at trial that he performed three specific tests on the leafy green material seized from the trailer and that the substance tested positive for marijuana.
Ellis' written report, which the State tendered into evidence, listed items submitted for identification and stated only that the suspected cocaine tested positive, with "other items were not analyzed." The prosecutor asked that the report be published to the jury, but the trial court admitted the report for the record only, finding it cumulative and refusing to publish it to the jury.
The court concluded Emerson waived any objection to the report's admission because he did not object when it was admitted for the record (applying the acquiescence principle from Young v. State). Because Emerson did not attempt to impeach Ellis on cross-examination with the report, he did not expose the apparent conflict between the report and the testimony to the jury.
Further, Emerson never argued at trial (and did not argue on appeal) that the substance was anything other than marijuana; the court therefore treated Ellis' trial testimony that the substance tested positive as uncontested evidence supporting the marijuana possession conviction (citing Ray v. State).

Analysis of the possession/knowledge issue:

The court relied on the established rebuttable presumption that a lessee is in possession of the entire leased premises and of contraband found there. Whether that presumption is rebutted is a question for the jury (citing Taylor v. State).
The jury was instructed on that rule; Lofton's testimony claiming ownership of the drugs presented a credibility dispute, which the court said was for the jury to resolve under OCGA § 24-9-80.
Viewing all of the evidence in the light most favorable to the prosecution, the court found the evidence sufficient for a rational trier of fact to find Emerson guilty beyond a reasonable doubt of possession of cocaine and marijuana, applying the Jackson v. Virginia standard.

Holding and Implications

Holding: Judgment affirmed.

Implications:

The appellate court affirmed the convictions and sentence. The direct consequence is that Emerson's convictions for possession of cocaine and marijuana were upheld.
The court's decision rests on the waiver of objection to the lab report (acquiescence), the unchallenged testimony of the forensic chemist regarding marijuana, the rebuttable-presumption rule regarding lessee possession of contraband found on leased premises, and the application of the Jackson v. Virginia sufficiency standard.
The opinion does not announce a new legal rule; it applies existing Georgia and federal precedent to the facts and resolves the appeal by affirming the trial court's judgment.

Opinion by Judge Ruffin; Beasley, C.J., and Pope, P.J., concurred.

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EMERSON v. THE STATE

RUFFIN, Judge.

Thomas Emerson was convicted of possessing cocaine and marijuana in violation of the Georgia Controlled Substances Act. He appeals the judgment of conviction and sentence following the denial of his motion for new trial. For reasons which follow, we affirm.

Viewed in a light to support the verdict, the evidence showed that while patrolling a mobile home park, Cobb County police officers observed a suspicious man loitering outside one of the mobile homes. They watched as the man approached a van parked nearby and subsequently learned that the man attempted to sell crack cocaine to the driver. The officers then approached the man, obtained his consent to a pat-down search, and discovered that he was carrying a pipe that contained suspected crack cocaine residue. One of the officers testified that as a result of this encounter, he suspected that there was crack cocaine and drug paraphernalia inside the nearby trailer and therefore decided to investigate further by walking around the outside of the trailer. There the officers discovered nearly fifty small plastic bags containing suspected crack cocaine residue and a crack pipe under the trailer. The officers then knocked on the trailer's front door. Emerson answered the door, appeared agitated by the officers' presence at his residence, and refused their request to enter the trailer. One of the officers testified that as they talked with Emerson in the doorway, he detected the odor of crack cocaine burning inside the trailer. The officers then obtained a search warrant which they executed a short time later.

Upon entering the trailer, which Emerson rented, the police found four adults, including Emerson who was in a back bedroom. The officers discovered numerous small plastic bags containing suspected crack cocaine residue strewn about the dresser and floor, in that bedroom, two burned spoons with cocaine residue, and razor blades. The police discovered crack cocaine rocks, marijuana, and powdered cocaine in another bedroom. Small plastic bags were also found in the kitchen behind the stove.

Omar Lofton was lying on a couch in the living room when the police entered. The police found a metal crack pipe and two marijuana cigarette butts in an ashtray near him. Lofton testified at trial that all of the drugs and paraphernalia found in the trailer belonged to him; that he hid the drugs in the trailer between the two police visits; that Emerson had returned to the trailer only thirty minutes before the police arrived; and that Emerson had no knowledge of the drugs in the trailer. Emerson did not testify.

1. Emerson contends the evidence did not support the guilty verdict on the marijuana possession charge because the crime lab analysis indicated that the suspected marijuana seized from his trailer was not tested. He also contends the trial court erred in ruling that the crime lab report was cumulative and in refusing to allow it to be published to the jury in light of the fact that the forensic chemist who prepared the report contradicted its findings at trial.

Forensic chemist Steven Ellis testified that he performed three specific tests on the leafy green material seized from the trailer and that the substance tested positive for marijuana. Ellis' written report listed the suspected drugs and drug paraphernalia which had been submitted for identification, including the suspected marijuana and handrolled cigarette butts, but the report indicated that only the suspected cocaine tested positive and that "other items were not analyzed." The State tendered the report into evidence. The prosecutor indicated his desire that the report be published to the jury; however, the trial court found that the report would be cumulative and admitted it for the record only. The record shows that the State disclosed the report to Emerson's attorney one month before the trial.

Emerson raised no objection to the report's admission for the record; therefore, he has waived any objection to the admission of the report. "A litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. Acquiescence deprives him of the right to complain further. . . . [Cit.]" (Punctuation omitted.) Young v. State, 217 Ga. App. 575, 576(2) ( 458 S.E.2d 391) (1995). Furthermore, because Emerson did not attempt to impeach Ellis' testimony with the report on cross-examination, he failed to expose the conflict in the evidence to the jury. Finally, Emerson did not contend at trial, and does not contend now, that the substance was anything but marijuana. See Ray v. State, 205 Ga. App. 866 ( 424 S.E.2d 13) (1992). Thus, the State presented uncontested testimony that the suspected marijuana tested positive which supported the guilty verdict.

2. Emerson also contends that the evidence failed to support the verdict on either charge because the State failed to prove that he had any knowledge of the drugs found in the trailer or that they belonged to him. He argues this is particularly true given Lofton's admission that the drugs belonged to him.

"A rebuttable presumption arises when one leases [premises], and contraband is found therein, that the lessee is in possession of the entire premises and all the property found on the premises. . . . Whether this presumption is rebutted is solely a jury question. [Cit.] The jury was charged the above-stated rule and the evidence authorized it to find that [Emerson] possessed the contraband, although others had access to the [trailer]. [Cit.]" Taylor v. State, 195 Ga. App. 651, 652 ( 394 S.E.2d 604) (1990). Lofton's credibility was a matter for the jury. OCGA § 24-9-80. However, viewing all of the evidence in the light to support the verdict, we find that it was sufficient to enable a rational trier of fact to find Emerson guilty beyond a reasonable doubt of possession of cocaine and marijuana. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) (1979).

Judgment affirmed. Beasley, C.J., and Pope, P.J., concur.