WINN v. the STATE.

FIRST 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 21, 2018

In the Court of Appeals of Georgia
A17A1550. WINN v. THE STATE.

BARNES, Presiding Judge.

Following the denial of his motion for new trial, Nikita Tayaneka Winn appeals

from his convictions for possession of cocaine with intent to distribute, trafficking in

illegal drugs (heroin), and possession of a firearm by a convicted felon. On appeal,

Winn contends that the evidence was insufficient to sustain his convictions, the trial

court erred in denying his motion to suppress because the affidavit for the search

warrant was not supported by probable cause, consent to search was given by an

unauthorized person, and his trial counsel was ineffective. Winn also contends that

the trial court violated OCGA § 17-8-57 by informing jurors that “What the DA says

is true.” Following our review and consideration of the alleged errors, we affirm.

1. Winn first contends that the evidence was insufficient to sustain his

convictions. He asserts that the evidence did not establish that he had possession of

the drugs or firearm. We disagree.
 On appeal from a criminal conviction, we view the evidence in the
light most favorable to the verdict and an appellant no longer enjoys the
presumption of innocence. This Court determines whether the evidence
is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99
SCt 2781, 61 LE2d 560) (1979) and does not weigh the evidence or
determine witness credibility. Any conflicts or inconsistencies in the
evidence are for the jury to resolve. As long as there is some competent
evidence, even though contradicted, to support each fact necessary to
make out the State’s case, we must uphold the jury’s verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

So viewed, the evidence demonstrates that upon receiving a complaint from the

complex manager of the Crestmont Apartments about the presence of drug

paraphernalia in the parking lot near Apartment 413, the Crime Interdiction Narcotics

Unit of the City of Marietta Police Department (“CIU”) assigned an undercover agent

to surveil the building. They had been given a description of the resident of

Apartment 413, and as the agent observed the building, he saw a female matching the

description leave the apartment, get into the driver’s seat of a parked car for a few

minutes, and then return to the apartment. The supervising officer of CIU and the

agent met with the complex leasing manager who identified the leaseholder as

Courtney Tench, and who said that she had received numerous complaints from other

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apartment residents in building 400 that Tench had people coming and going at all

hours and that “cars [were] pulling up, staying for just a few minutes and leaving.”

A maintenance worker showed the officers needles in a bucket that he had picked up

from around building 400; some of the needles contained brown liquid or bloody

residue.

As they walked back to the leasing office, the officers saw a former

confidential informant (“CI”) walk from the breeze way of Building 400 to a nearby

dumpster while talking on his cell-phone. The CI was a known heroin user and did

not live at the apartment complex. The agent spoke with the CI, who admitted that he

had gone to Apartment 413 to purchase drugs from “Kino.” During this time, a man

came out of Apartment 413 and walked toward the dumpster. When he saw the

officers, he threw a plastic bag that he was carrying into the dumpster and walked

away. The officer stopped the man, who said that his name was “Kino Smith.”

“Kino,” who was later identified as Winn, consented to a search of his person, and the

officer discovered a soft-ball size roll of money, most of it in smaller denominations.

The officer took the former CI’s cell-phone and hit send, and Winn’s cell-phone rang.

The former CI said that when he had gone to the apartment to purchase drugs, a man

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inside the apartment instructed him to wait by the dumpster. An officer attempted to

locate the plastic bag that was tossed in the dumpster, but stopped for safety reasons.

Winn was placed in the patrol vehicle while officers conducted a “knock-and-

talk” at Apartment 413. Trench answered the door and permitted the officers to enter.

A male and two other females were present in the apartment. Trench told officer that

she lived there with “Kino” (Winn), and that he paid her $400 a month to stay in the

second bedroom. She consented to a search of her master bedroom and the common

areas. The door to the second bedroom, where Winn stayed, was opened and police

saw a black handgun and green leafy substance on the floor, and other drug

paraphernalia. Based on their observations and the earlier interaction with Winn,

officers obtained a search warrant for Winn’s bedroom and recovered, in addition to

the drug evidence they saw earlier, a black chest containing heroin, marijuana,

cocaine and a black digital scale.1 They also discovered a bag containing close to 200

hypodermic needles. The room also contained a cell-phone contract in the name of

“Kino Smith,” a driver’s license in the name of “Jeffrey Brookings,” and men’s

clothing in Winn’s size. Winn had initially told police that his name was “Kino

1
The net weight of the cocaine was 27.73 grams and the weight of the heroin
was 30.20 grams.

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Smith,” then “Jeffrey Brookings,” but when he was arrested and booked, it was

discovered that his legal name was Nikita Winn.

On appeal, Winn contends that there was insufficient evidence of his

possession of the drugs and firearm. We do not agree.

Where the [S]tate provides no direct evidence of actual
possession, a conviction may be sustained with proof of constructive
possession. A finding of constructive possession must be based upon
some connection between the defendant and the contraband other than
mere spatial proximity. Constructive possession exists where a person
though not in actual possession, knowingly has both the power and the
intention at a given time to exercise dominion or control over a thing. If
the [S]tate presents evidence that a defendant owned or controlled
premises where contraband was found, it gives rise to a rebuttable
presumption that the defendant possessed the contraband. Although this
presumption may be rebutted by showing that others had access to the
premises, the equal access doctrine applies to rebut the presumption of
possession only where the sole evidence of possession of contraband
found on the premises is the defendant’s ownership or possession of the
premises. . . . [A]lthough mere presence at the scene is not sufficient to
convict one of being a party to a crime criminal intent may be inferred
from conduct before, during, and after the commission of a crime.

(Footnotes and punctuation omitted.) Johnson v. State, 338 Ga. App. 500, 502 (790

SE2d 291) (2016). “As long as there is slight evidence of access, power, and

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intention to exercise control or dominion over the contraband, the question of fact

regarding constructive possession remains within the domain of the trier of fact.”

(Footnote and punctuation omitted.) Ferrell v. State, 312 Ga. App. 122, 124 (1) (717

SE2d 705) (2011).

Here, contrary to Winn’s contention, there was evidence of his constructive

possession of the drugs and firearm beyond his mere presence in the bedroom from

which the jury could find beyond a reasonable doubt that he had access, power, and

intention to exercise dominion or control over the drugs and firearm found in his

room. See Howard v. State, 291 Ga. App. 386, 388 (662 SE2d 203) (2008) (for a

conviction based on circumstantial evidence, “the proved facts shall not only be

consistent with the hypothesis of guilt but shall exclude every other reasonable

hypothesis save that of the guilt of the accused. Whether or not in a given case

circumstances are sufficient to exclude every reasonable hypothesis save the guilt of

the accused is primarily a question for determination by the jury.”) (citation,

punctuation, and emphasis omitted).

2. Winn contends that the trial court erred in denying his motion to suppress

because the warrant affidavit contained false statements without which the warrant

was unsupported by probable cause. He asserts that the search warrant contained

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several false statements, including, the admittedly false statement that Winn “was

found on the property, in which he claims he does not live, attempting to make a drug

transaction with several young white females.” He also contends that the statement

in the warrant that the items in the second bedroom were visible “through the open

door...in plain view from the living room”directly conflicted with the officer’s

testimony at a probable cause hearing that he had pushed open the door. Winn asserts

that without these false statements there was no probable cause shown in the affidavit

to support the issuance of the search warrant and, thus the trial court should have

granted his motion to suppress. We do not agree.

A magistrate may issue a search warrant only when the circumstances set forth

in the affidavit establish probable cause that contraband or evidence of a crime will

be found in a particular place. State v. Palmer, 285 Ga. 75, 77-78 (673 SE2d 237)

(2009). On appeal, we must determine whether the magistrate had a “substantial

basis” for concluding that probable cause existed to issue the search warrant. Amica

v. State, 307 Ga. App. 276, 278 (1) (704 SE2d 831) (2010). “[D]oubtful cases should

be resolved in favor of upholding a magistrate’s determination that a warrant is

proper.” (Citation and punctuation omitted.) Sullivan v. State, 284 Ga. 358, 361 (2)

(667 SE2d 32) (2008).

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 In reviewing the trial court’s grant or denial of a motion to
suppress, we apply the well-established principles that the trial court’s
findings as to disputed facts will be upheld unless clearly erroneous and
the trial court’s application of the law to undisputed facts is subject to
de novo review, keeping in mind that a magistrate’s decision to issue a
search warrant based on a finding of probable cause is entitled to
substantial deference by a reviewing court.

(Citations and punctuation omitted.) Palmer, 285 Ga. at 78.

[A]n affidavit is presumed valid in the absence of evidence that it
contained deliberate falsehoods, was made with reckless disregard for
the truth, or that the affiant consciously omitted material facts that, if
included, would have indicated the absence of probable cause. If a court
determines that an affidavit contains material false representations or
omissions, the false statements must be deleted, the omitted truthful
material must be included, and the affidavit must be reexamined to
determine whether probable cause exists to issue a warrant.

(Footnotes and punctuation omitted.) Amica, 307 Ga. App. at 279 (1) (b).

Here the affidavit’s narrative provided in pertinent part that:

While conducting a drug investigation at 500 Williams Dr, Marietta, GA
30052 CIU Agents came in contact with a suspected drug dealer, Kino
Smith. Smith was found on the property, in which he claims he does not
live, attempting to make a drug transaction with several young white
females. The transaction was interrupted by CIU agents. . . . [A]gents

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 were directed to [apartment 413] where the young white females
believed Smith to be residing. Agents made contact with the leaseholder,
[Tench].. . .Tench allowed CIU agents into the apartment. [The Agent]
asked Tench if Smith lived in the apartment. Tench advised that he was
renting a room from her. [The Agent] then asked Tench which room
Smith was renting. Tench advised the front bedroom to the right of the
front door. [The Agent] directed his attention to this room and through
the open door was able to see a digital scale with suspected heroin
residue, a small black handgun, and a white sheet of paper with
suspected marijuana on it. All the items were in plain view from the
living room without the need to go into the bedroom.

The State concedes that the information in the affidavit describing a drug

interaction between Winn and the females was false. When questioned at the hearing

on the motion to suppress and at trial about the inaccuracy, the affiant, an officer who

had been orally given the information by the CIU agent, testified that he had

misinterpreted the transaction and assumed that the females at the scene were

involved in the drug transaction, and that he had not intentionally omitted the

information about the CI. He further testified that he was not present when the CIU

agent interrupted the drug transaction between Winn and the CI.2

2
The probable cause hearing at which the officer made the purportedly
contradictory statement that he had pushed opened the bedroom door, rather than the
items being visible through the open bedroom door, is not included with the record,

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 Here, “[w]e need not — and thus do not — decide whether any of these false

statements were made knowingly and intentionally or with reckless disregard for the

truth, because the rest of the information contained in the affidavit — which [Winn]

does not challenge — establishes probable cause[.]” Taylor v. State, 337 Ga. App.

486, 488-489 (788 SE2d 97) (2016). Even though the information from the officer

about Winn’s transaction with the females was false, if this information was excluded

from the affidavit and the actual transaction between Winn and the CI included, this,

along with the remaining information in the affidavit, would have been sufficient to

provide the magistrate with a basis to find probable cause. See Palmer, 285 Ga. at 78.

Because the warrant affidavit had sufficient information to establish probable

cause, the trial court did not err in denying Winn’s motion to suppress.

3. Winn next contends that Tench, the leaseholder, did not have authority to

consent to a search of Winn’s bedroom. However, this claim is meritless, because the

search of Winn’s bedroom was not authorized by Tench’s consent, but was properly

conducted under the search warrant.

nor did Winn question the officer at the motion to suppress hearing or at trial about
the inconsistency.

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 4. Winn enumerates as error the trial court’s denial of his motion for new trial

based on the ineffectiveness of his trial counsel. He contends that trial counsel was

ineffective for failing to object or move to strike certain testimony that Winn asserts

was inadmissable as hearsay. We do not agree.

To establish ineffective assistance of counsel, a defendant must
show that his trial counsel’s performance was professionally deficient
and that but for such deficient performance there is a reasonable
probability that the result of the trial would have been different. To
prove deficient performance, one must show that his attorney performed
at trial in an objectively unreasonable way considering all the
circumstances and in the light of prevailing professional norms. Courts
reviewing ineffectiveness claims must apply a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional
performance. Thus, decisions regarding trial tactics and strategy may
form the basis for an ineffectiveness claim only if they were so patently
unreasonable that no competent attorney would have followed such a
course. If the defendant fails to satisfy either the deficient performance
or the prejudice prong of the Strickland [v. Washington, 466 U. S. 668,
695 (104 SCt 2052, 80 LE2d 674) (1984)] test, this Court is not required
to examine the other.

(Citations and punctuation omitted.) Hassell v. State, 294 Ga. 834, 837-838 (2) (755

SE2d 134) (2014).

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 Winn complains that the agent’s testimony that the CI told him that he was at

the apartment to buy drugs, that Tench had told him that she was trading sex for

drugs, and that there were text messages on Trench and Winn’s cell phone about the

sexual favors were inadmissible hearsay and trial counsel was ineffective for failing

to object to the testimony. Winn also contends that trial counsel was ineffective for

failing to object to another officer’s testimony that he had heard that Winn was the

occupant of the room that was searched in the apartment.

Upon our review of Winn’s claims, we find that he failed to satisfy either the

deficient performance or the prejudice prong of the Strickland.

At the motion for new trial hearing, trial counsel testified that he did not object

to the agent’s testimony about the CI purchasing drugs from Winn because he thought

it was admissible because the CI had testified to the same fact at trial. He also

testified that his decision to not object to the testimony about the purported sexual

favors was part of his overall trial strategy to show that Winn was arrested because

the officer believed Winn was trading drugs for sex even though Trench denied that

the two had exchanged sex for drugs. A tactical decision such as whether to object

falls within the ambit of reasonable trial strategy. See Wright v. State, 274 Ga. 730,

732 (2) (b) (559 SE2d 437) (2002). See also Butler v. State, 273 Ga. 380 (541 SE2d

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653) (2001) (the decision whether to object is a generally a question of trial strategy

that does not constitute ineffective assistance).

Winn’s contention trial counsel was ineffective for failing to object to the

agent’s testimony about the text message, is also meritless. Although trial counsel

testified that he could not recall why he did not object to or move to strike the

testimony, Winn does not demonstrate how he was prejudiced by this testimony

which was cumulative of other testimony. See Wright v. State, 291 Ga. 869, 870 (2)

(734 SE2d 876) (2012) (“If an appellant fails to meet his or her burden of proving

either prong of the Strickland test, the reviewing court does not have to examine the

other prong.”)

Lastly, trial counsel was not questioned about his failure to object to an

officer’s testimony that he heard that Winn was the occupant of the searched room.

In the absence of testimony by counsel about the alleged error, it is presumed

strategic. Tyner v. State, 313 Ga. App. 557, 565 (6) (c) (722 SE2d 177) (2012). Again,

Winn has the burden of establishing ineffectiveness of trial counsel under either

Strickland prong, and he has not done so. Id.

Accordingly, the trial court did not err in denying Winn’s motion for new trial

based on his ineffectiveness claim.

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 5. Winn contends that the trial court violated OCGA § 17-8-57 by instructing

a witness that the “What the DA says is true.” That code section, at the time of

Winn’s January 2015 trial, provided:

It is error for any judge in any criminal case, during its progress or in his
charge to the jury, to express or intimate his opinion as to what has or
has not been proved or as to the guilt of the accused. Should any judge
violate this Code section, the violation shall be held by the Supreme
Court or Court of Appeals to be error and the decision in the case
reversed, and a new trial granted in the court below with such directions
as the Supreme Court or Court of Appeals may lawfully give prohibits
a trial judge in a criminal case from expressing or intimating during the
progress of the case or in the jury charge his or her opinion as to what
has been proved or as to the guilt of the accused.3

Under former OCGA § 17-8-57, counsel was not required to object to an allegedly

improper comment by the trial judge in order to preserve the error for appellate

review. The current version of OCGA § 17-8-57,

provides that it is error for any judge, during any phase of any criminal
case, to express or intimate to the jury the judge’s opinion as to whether
a fact at issue has or has not been proved or as to the guilt of the

3
Former OCGA § 17-8-57 (2014). Effective July 1, 2015, the statute was
amended. Quiller v. State, 338 Ga. App. 206, 207 (789 SE2d 391) (2016) (citing 2015
Ga. L., p. 1050, § 1).

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 accused. And that , the defendant’s trial counsel must timely object to
a suspected violation of the statute and must inform the court of the
specific objection and the grounds for such objection, outside of the
jury’s hearing and presence. Otherwise, appellate review will be limited
to whether the judge’s comments violated the statute and, if so, whether
the violation constituted plain error that affected the substantive rights
of the parties.

(Footnote and punctuation omitted.) Whatley v. State, 342 Ga. App. 796, 808 (3) (f)

(805 SE2d 599) (2017). “Because OCGA § 17-8-57 is a procedural law and it does

not provide otherwise, the appellate courts will apply the law as it exists at the time

the appeal is decided. Thus, the current version of OCGA § 17-8-57 applies in this

case.” (Citation omitted.) Id. at 808 (3) (f) n. 44.

During the State’s direct examination of the CI, the CI refused to answer a

question, instead asserting that he was “just going to plead the Fifth.” The State

requested that the trial court instruct the CI that he had “use immunity for the course

of this trial.” The trial court responded that, “You need to answer the question. What

the DA says is true.” Winn’s trial attorney did not object.

The trial court’s statement here, when considered in context, did not express

or intimate such an opinion. The trial court’s comment was essentially a ruling on a

point of law– the inability to plead the Fifth Amendment after being granted use

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immunity. See Rogers v. State, 294 Ga. App. 195, 196 (1) (670 SE2d 106) (2008) (“A

ruling by the court on a point of law is not an expression of opinion; neither are

remarks by the court explaining the court’s rulings.”) (punctuation and footnote

omitted.)

“Although we strongly discourage the giving of direction or the use of

language that could create the appearance of alignment between the trial court and

either the prosecution or defense, [here] the trial court did not express or intimate its

opinion as to what has or has not been proved so as to violate OCGA § 17-8-57.”

(Citation and punctuation omitted.) Allen v. State, 296 Ga. 785, 789 (6) (770 SE2d

824) (2015).

Thus, this enumeration fails.

Judgment affirmed. McMillian and Mercier, JJ., concur.

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