FOURTH DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.
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.
http://www.gaappeals.us/rules
February 22, 2016
In the Court of Appeals of Georgia
A15A1849. SMITH v. THE STATE.
MCMILLIAN, Judge.
Robbie Smith was convicted by a jury of possession of cocaine with intent to
distribute, possession of marijuana with intent to distribute,1 theft by receiving stolen
property, two counts of fleeing and attempting to elude, obstruction of a law
enforcement officer, operating a motor vehicle with a suspended license, and two
counts of possession of a firearm during the commission of a crime. Smith appeals
following the denial of his motion for new trial, as amended, arguing the trial court
should have granted his motion for directed verdict as to the drug distribution
charges, the trial court erred in permitting a police officer to give his opinion
1
We will refer to the first two offenses collectively as the “drug distribution”
charges or counts.
concerning Smith’s intent to distribute the drugs, and that his trial counsel was
ineffective because he did not object to the testimony of the police officer. As more
fully set forth below, we find these contentions to be without merit and affirm.
1. Smith first contends that the trial court erred by denying his motion for
directed verdict as to the drug distribution charges.
A motion for directed verdict should be granted only when there is no
conflict in the evidence and the evidence demands a verdict of acquittal
as a matter of law. The standard of review for the denial of a motion for
a directed verdict of acquittal is the same as for determining the
sufficiency of the evidence to support a conviction: the evidence must
be sufficient for a rational trier of fact to find beyond a reasonable doubt
that the defendant was guilty of the charged offense. The evidence must
be reviewed in the light most favorable to support the verdict and the
defendant no longer enjoys a presumption of innocence; moreover, an
appellate court determines evidence sufficiency and does not weigh the
evidence or determine the credibility of witnesses.
(Citations omitted.) Hughes v. State, 297 Ga. App. 217, 217 (676 SE2d 852) (2009).
Viewed in this light, the evidence at trial shows that Smith was arrested after
attempting to evade a routine “license/safety check” police road block, an ensuing
high speed vehicle chase, and an attempt to elude pursuing law enforcement officers
on foot after he stopped and exited his vehicle. Officers found a nine-millimeter
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handgun with an extended clip, which holds extra rounds, sitting on the passenger
seat of Smith’s car, and further inspection revealed that there was a live round in the
chamber. Police also learned that the weapon was stolen and Smith’s driver’s license
was suspended. In addition to the gun, police officers found two marijuana “joints”
in an ashtray inside the vehicle.
Police officers also searched along the path Smith ran after he exited his
vehicle. Strewn along the path, officers discovered five bags containing a green leafy
substance subsequently identified as marijuana; one of the five bags contained 45.3
grams of marijuana, and the other four bags each contained approximately 0.9 grams
of marijuana. Officers also found eight individual bags containing what was
subsequently identified as cocaine; two of the bags contained a more “chunky solid”
form of cocaine weighing 2.51 grams and the other six bags contained a more
powdered form of cocaine, with a total weight of 2.25 grams. Deputy Charles Smith,
who was one of the officers who pursued Smith when he attempted to elude police,
testified without objection at trial that “usually in my line of work, in my knowledge
and experience, with the amount of narcotics that was discovered, it’s usually broken
up like that for distribution purposes.” Following this testimony, Smith moved for a
directed verdict, which the trial court denied.
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Smith now argues that the trial court should have granted his motion because
the State’s only evidence of intent to distribute was based on the multiple bags of the
drugs and Officer Smith’s non-expert opinion testimony.
Although the State is required to show more than mere possession to
prove that [the defendant] intended to distribute the cocaine, no bright
line rule exists regarding the amount. . . . Rather, the State may show
intent to distribute in many ways, including expert testimony that the
amount of contraband possessed was inconsistent with personal use,
evidence showing the manner of packaging, and the possession [of
weapons]. The issue of intent is peculiarly a question of fact for jury
determination.
(Citations and punctuation omitted.) Barber v. State, 317 Ga. App. 600, 605 (3) (732
SE2d 125) (2012). Here, the defendant possessed two different type of drugs and the
cocaine he possessed was in two different forms. A large quantity of marijuana was
found in one bag, while smaller and similar quantities of the drug were found in other
bags. In addition to the marijuana, Smith also possessed two different forms of
cocaine divided into eight individual bags. Deputy Smith testified, without objection,
that the quantity and packaging of the drugs was indicative of drug distribution, and
this testimony was based on his training and experience. Further, although it is true
that Deputy Smith was not formally tendered as an expert, the trial court tacitly or
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impliedly accepted him as such when he allowed the officer to testify concerning his
opinion in the areas of narcotics possession and distribution.2 See Barber, 317 Ga.
App. at 605 (3) (police officer may give opinion as to whether the amount or value
of the contraband is consistent with distribution, provided the State lays a foundation
for the opinion); Hughes, 297 Ga. App. at 218.
Moreover, in addition to the officer’s testimony, the evidence also shows that
Smith engaged in a high-speed, dangerous chase and then attempted to flee from
police on foot and that a nine-millimeter, loaded handgun with a bullet in the chamber
was found in the front passenger seat after Smith fled from the car. Causey v. State,
274 Ga. App. 506, 508 (618 SE2d 127) (2005) (loaded weapon, large quantity of
narcotics and cash constituted evidence of involvement in drug trade); see generally
State v. Jackson, 287 Ga. 646, 652 (697 SE2d 757) (2010) (noting that it “not
unusual” for drug dealers to be armed). This evidence, coupled with other evidence
at trial, was sufficient to support Smith’s conviction of possession of cocaine and
2
Smith recognizes that a law enforcement officer may be permitted to offer
opinion testimony, even if not formally tendered as an expert, if an adequate
foundation is laid with respect to the officer’s training and experience, but goes on
to argue that an adequate foundation was not laid for the officer’s testimony in this
case. However, as more fully set out in Division 2 below, Smith did not object to the
officer’s testimony on this ground at trial, and thus any challenge to the officer’s
testimony on this basis has been waived.
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marijuana with intent to distribute beyond a reasonable doubt. See e.g., Thomas v.
State, 321 Ga. App. 214, 215 (1) (741 SE2d 298) (2013) (evidence sufficient where
officer testified quantity and packaging of crack cocaine was more consistent with
drug sales instead of personal use, and manner of concealment was typical of “street
level” drug dealer); Horne v. State, 318 Ga. App. 484, 484 (1) (733 SE2d 487) (2012)
(evidence of intent to distribute sufficient where officer testified amount of cocaine
was greater than what would normally be kept for personal use and drugs were
packaged separately for distribution); Flemister v. State, 317 Ga. App. 749, 752 (1)
(732 SE2d 810) (2012) (evidence sufficient where officer testified drugs were
packaged in a manner commonly associated with the sale of marijuana); Causey v.
State, 274 Ga. App. at 508 (evidence of intent to distribute when large quantities of
drugs, cash, and a weapon found on defendant’s person). Accordingly, the trial court
did not err by denying Smith’s motion for directed verdict on these counts.
2. Smith also contends that the trial court erred by permitting Deputy Smith to
give opinion testimony as to the issue of possession with intent to distribute without
laying an adequate foundation based on his experience and training. However, as
Smith acknowledges in his brief on appeal, his trial counsel failed to object to the
officer’s testimony on this basis. It is well settled that the failure to make a timely and
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specific objection to the introduction of evidence at trial is treated as a waiver, and
this includes an assertion that the State failed to lay a proper foundation for the
admission of evidence at trial. Slaughter v. State, 282 Ga. App. 276, 279 (2) (638
SE2d 417) (2006) (failure to raise foundational objection to officer’s testimony that
the amount and form of drugs was indicative of intent to sell waived appellate review
of this issue); see also Robinson v. State, 332 Ga. App. 240, 244 (2) (771 SE2d 751)
(2015) (contention that State failed to lay proper foundation for introduction of
testimony concerning prior arrests waived when not raised in trial court).
Accordingly, this enumeration presents nothing for our review.
3. In a related enumeration, Smith argues that his trial counsel was ineffective
because he did not object to the State’s failure to lay a proper foundation before
Deputy Smith was allowed to give his opinion testimony and did not object to this
testimony.
To succeed on his ineffectiveness claim, Smith “must show both that his
counsel’s performance was deficient and that, but for counsel’s unprofessional errors,
there is a reasonable probability the outcome of the trial would have been different.”
Batten v. State, 295 Ga. 442, 445 (3) (761 SE2d 70) (2014). “It is the appellant’s
‘heavy’ burden to prove the ineffective assistance of counsel, not the state’s burden
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to prove the adequate assistance of counsel.” (Citation omitted.) Id. Moreover,
“counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” (Citation
and punctuation omitted.) Id.
Smith’s trial attorney testified at the motion for new trial hearing that his
primary defense strategy was to show that the contraband, which was found on the
ground near several apartment complexes, did not belong to Smith. Trial counsel
testified that Deputy Smith’s testimony was not relevant to this defense, and,
moreover, based on the numerous cases he had tried with the prosecuting attorney,
he was “confident” that if he had objected, the State’s attorney simply would have
elicited testimony to “shore up” the foundation for Deputy Smith’s testimony. The
record also shows that trial counsel did cross-examine Deputy Smith, and that instead
of attacking his credentials, attempted to show that his opinion about Smith’s intent
in possessing the drugs was ill-founded.
“As a general rule, matters of reasonable tactics and strategy, whether wise or
unwise, do not amount to ineffective assistance of counsel.” Barber, 317 Ga. App. at
604 (2) (b) (no ineffectiveness because reasonable trial strategy not to object when
officer asked to explain difference between simple possession and possession with
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intent to distribute when trial strategy was that defendant did not possess the drugs).
That Smith now disagrees “with the decisions, tactics, or strategies made by trial
counsel does not demonstrate that [his] trial counsel rendered ineffective assistance.”
(Citation and punctuation omitted.) Harris v. State, 257 Ga. App. 819, 823 (2) (b)
(572 SE2d 370) (2002). Moreover, Smith did not attempt to make any showing on
motion for new trial that Deputy Smith was not qualified by training and experience
to give his opinion, which was his burden, rather than the State’s, to carry to prove
his ineffectiveness claim. Accordingly, this enumeration affords no basis for reversal.
Judgment affirmed. Barnes, P. J., and Mercier, J., concur.
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