LEWIS v. the STATE.

FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, 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

May 14, 2019

In the Court of Appeals of Georgia
A19A0343. LEWIS v. THE STATE.

BROWN, Judge.

Terry Allen Lewis appeals his convictions for possession of methamphetamine

with intent to distribute, possession of a firearm during the commission of a crime,

and possession of a firearm by a convicted felon. He contends that (1) his trial

counsel was ineffective for not calling certain witnesses and failing to file motions

to suppress certain evidence; (2) there was insufficient evidence to support his

convictions; and (3) the trial court erred in its charge to the jury. For the reasons that

follow, we reverse Lewis’ conviction for possession of a firearm during the

commission of a crime, but affirm the remaining convictions.

Viewed in the light most favorable to the jury’s verdict, Duncan v. State, 346

Ga. App. 777 (815 SE2d 294) (2018), the evidence shows that on September 25,
2014, Corporal Larry Bracken responded to an address on Woodside Road in

Richmond County after an anonymous caller reported traffic in and out of the vacant

house on the property. Bracken testified that the subject neighborhood had

experienced a rash of recent burglaries and that when police “get these calls, we take

action.” Bracken arrived at that address and noticed cars in the driveway and curtains

in the windows. He knocked and the woman who answered told him he had the wrong

address, that the vacant house was next door. As Bracken proceeded next door, he

noticed that the main front door was open but a glass storm door was closed, and he

could hear people moving around inside. Bracken testified that it appeared the carpet

in the home was being replaced. When no one answered Bracken’s knock, he

announced “sheriff’s office” and entered the home’s living room. As Bracken, who

was dressed in his police uniform, turned the corner from the living room to the den,

he noticed Lewis, and the two men “scared each other.” When Bracken again

announced “sheriff’s office,” Lewis reached his right hand behind his back, pulled out

a firearm, and pointed the barrel of the gun directly at Bracken. Bracken testified that

he pulled out his firearm, and as he “was pulling the slack out of the trigger [to shoot

Lewis], [Lewis] dropped his gun and threw his hands in the air.” As Lewis threw the

gun into a closet, Bracken commanded him to get his hands up and to back up away

2
from the gun. As the two men backed into the kitchen of the home, Bracken noticed

a second man sitting at the counter. Bracken placed both men in handcuffs. Bracken

testified that at that point, Lewis was under arrest.

After Lewis gave verbal consent, Bracken patted him down for weapons and

discovered in his left rear pocket a candy tin containing methamphetamine.1 Bracken

also found in the home a scale and small baggies, as well as more than $400 cash on

Lewis’ person, including twenty-one twenty dollar bills, which Bracken testified is

a sign of “selling.” Bracken patted down the second man, but found nothing. Bracken

arrested the second man for disorderly conduct and called for backup.

Bracken, who was tendered as an expert in the field of narcotics investigation,

testified that it is common for drug dealers to use vacant homes or rental cars to

distribute drugs instead of their own homes or cars because they are afraid of “asset

forfeiture.” During cross-examination, Bracken confirmed that he weighed the

methamphetamine on the scale he found in the home and that it weighed 3.9 grams.

A GBI forensic chemist testified that the methamphetamine weighed 5.07 grams.

1
Prior to patting down Lewis to check for weapons or other items that could
be used to harm the officer or Lewis, Bracken asked Lewis if there was anything else
in his pockets. Lewis said no and when Bracken asked about the “hard rectangle
object” in Lewis’ left rear pocket, Lewis “shrugged his shoulders in a manner of like
[he] [didn’t] know” what it was.

3
 Lewis testified at trial that William Walker hired him to work in the home,

“install[ing] carpet [and] vinyl[,] and fix[ing] the subfloor.” Lewis stated that he had

been on the job for three days working when Bracken appeared in the hallway. Lewis

disputed Bracken’s version of their encounter, specifically denying that he ever pulled

a gun on Bracken or that the gun even belonged to him, explaining that the first time

he saw the gun was when another officer arrived, searched the home, and “came back

out with a pistol.” He explained that he had been at the house for only fifteen minutes

when Bracken arrived and that a carpet subcontractor he had hired was mad at him,

had left the job, and “probably . . . ha[d] called” the police to complain of trespassers.

Lewis denied ever being in the kitchen where the scale and baggies were found,

explaining that the second man had been within “two feet” of the baggies, and he

claimed that Bracken found the tin container in the laundry room amongst some tools

left by the subcontractor, not Lewis’ pocket. As for the money, Lewis first testified

that his mother got it out of an ATM to give to him, but later testified that she got it

from a bank teller.

1. Lewis first argues that his trial counsel was ineffective in several ways. We

disagree.

4
 In evaluating claims of ineffective assistance of counsel, we apply the
two-pronged test established in Strickland v. Washington, [466 U. S.
668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984),] which requires a
defendant to show that his trial counsel’s performance was deficient and
that the deficient performance so prejudiced him that there is a
reasonable likelihood that, but for counsel’s errors, the outcome of the
trial would have been different. Additionally, there is a strong
presumption that trial counsel’s conduct falls within the broad range of
reasonable professional conduct, and a criminal defendant must
overcome this presumption. Lastly, unless clearly erroneous, we will
uphold a trial court’s factual determinations with respect to claims of
ineffective assistance of counsel; however, a trial court’s legal
conclusions in this regard are reviewed de novo.

(Citations and punctuation omitted.) Duncan, 346 Ga. App. at 783 (2).

(a) Lewis contends that counsel was deficient in failing to call as a witness the

second man arrested at the scene because he would have testified that the scale and

baggies belonged to him and that he had a lawful purpose for possessing the items.2

At trial, Lewis told the court that he “would have liked to call witnesses in [his]

case[,]” including Jimmy Lanier, the second man in the home. When asked at the

2
At trial, Bracken testified that the second man was charged with disorderly
conduct, “a county ordinance of drug paraphernalia being in or around.” Lewis posits
that the disorderly conduct charge supports the inference that the second man – and
not he – possessed the scale and baggies.

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motion for new trial hearing why he did not call Lanier as a witness at trial, trial

counsel testified “I would not say that there was a [trial] strategy there.” Lanier did

not testify at the motion for new trial hearing.

Because Lanier did not testify at the motion for new trial hearing, we have no

idea whether he would have testified as Lewis hypothesizes. “The failure of trial

counsel to employ evidence cannot be deemed to be prejudicial in the absence of a

showing that such evidence would have been relevant and favorable to the

defendant.” (Footnote an punctuation omitted.) Herrington v. State, 285 Ga. App. 4,

6 (b) (645 SE2d 29) (2007). See also Hunt v. State, 278 Ga. 479, 480-481 (4) (604

SE2d 144) (2004) (failure of trial counsel to call investigator as a witness not

prejudicial in absence of showing that evidence was crucial to defense). Accordingly,

counsel was not ineffective in this regard.

(b) Lewis next argues that his trial counsel was ineffective for failing to call his

mother as a witness. Lewis’ mother testified at the motion for new trial hearing that

two days before her son was arrested, she withdrew $400 from her bank and gave it

to him so that he could reclaim something from a pawn shop. Trial counsel explained

that he did not call Lewis’ mother as a witness because he “was not overly troubled

6
about the money. I was more concerned about the fact that there was a scale in the

kitchen and baggies that looked like somebody was selling the drug from the house.”

In evaluating this claim, we are guided by the principles stated above as well

as the general rule that “trial counsel’s decision as to which defense witnesses to call

is a matter of trial strategy and tactics, and tactical errors in that regard will not

constitute ineffective assistance of counsel unless those errors are unreasonable ones

no competent attorney would have made under similar circumstances.” (Citation and

punctuation omitted.) Muckle v. State, 302 Ga. 675, 680 (2) (808 SE2d 713) (2017).

In this case, Lewis was in possession of at least 3.9 grams of methamphetamine – and

in the presence of a scale and baggies – when he pointed a gun at a uniformed police

officer investigating a report of traffic in and out of the vacant home in which Lewis

alleges he had been working for three days. As the State points out, even if Lewis’

mother explained to the jury why her son had a large sum of cash, she could not

explain the drugs, gun, scale, and baggies. Trial counsel recognized this obstacle and

chose not to draw attention to it. Under these circumstances, we conclude that trial

counsel’s decision not to call Lewis’ mother was reasonable trial strategy and not

deficient performance. See id.

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 (c) Lewis next contends that trial counsel should have filed a motion to

suppress the evidence seized from the home, including the firearm and drugs, because

Bracken did not have a lawful reason to be in the allegedly vacant home after he

realized that it was being worked on. At the motion for new trial hearing, trial counsel

testified that he did not file a motion to suppress on this ground because Bracken

knocked on the door of the home and received no response, “[h]e was still

investigating the possibility that there was a burglary in progress. I was of the opinion

that he had a right to enter the house, particularly since there was no response to his

knocking.”

“[W]hen trial counsel’s failure to file a motion to suppress is the basis for a

claim of ineffective assistance, the defendant must make a strong showing that the

damaging evidence would have been suppressed had counsel made the motion.”

(Punctuation and footnote omitted.) Duncan, 346 Ga. App. at 783 (2). “As a general

rule . . . a person who is aggrieved by an illegal search and seizure only through the

introduction of damaging evidence secured by a search of a third person’s premises

or property has not had any of his Fourth Amendment rights infringed.” (Citation and

punctuation omitted.) Jones v. State, 320 Ga. App. 681, 685 (2) (740 SE2d 655)

(2013).

8
 [T]o challenge a search and seizure, a defendant must show he had an
expectation of privacy in the premises searched or in the property seized.
And the burden is on the one claiming a violation of Fourth Amendment
rights to demonstrate that he has standing to contest such violation, i.e.,
that he has a legitimate expectation of privacy in the premises searched
or the property seized.

(Citations and punctuation omitted.) Id. See also Atwater v. State, 233 Ga. App. 339,

340 (2) (503 SE2d 919) (1998), citing Rakas v. Illinois, 439 U. S. 128 (99 SCt 421,

58 LE2d 387) (1978). While an overnight guest in a private residence may have a

legitimate expectation of privacy in that residence, “a person who is merely present

with the consent of the householder has no such expectation.” (Citation and

punctuation omitted.) Barlow v. State, 327 Ga. App. 719, 722 (1) (761 SE2d 120)

(2014). See also Minnesota v. Carter, 525 U. S. 83, 90-91 (119 SCt 469, 142 LE2d

373) (1998) (person present in another’s dwelling to engage in purely commercial

transaction, who is on the premises for a relatively short time, and who does not have

a previous connection with the householder, has no legitimate expectation of privacy

in the premises).

Aside from testifying that he was hired to work in the home by a man named

William Walker, whom Lewis stated is “[r]eal estate,” Lewis has failed to come

9
forward with any evidence that would suggest that he otherwise had a legitimate

expectation of privacy in the vacant home, and Walker did not testify at trial or at the

motion for new trial hearing. Given that Lewis lacked standing to challenge the

search of the home, his trial counsel was not ineffective for failing to file a meritless

motion to suppress the evidence found in the home.3

(d) Lewis next argues that trial counsel should have filed a motion to suppress

related to the search of the candy tin because it was “[w]ithout warrant, consent,

probable cause, or exigent circumstances.” At the motion for new trial hearing, trial

counsel testified that he did not file a motion to suppress the methamphetamine

because “Bracken, prior to doing the pat down, asked Mr. Lewis for permission to

search, and permission, as I recall, was granted. I mean, Mr. Lewis said, yeah, you

can search me.” When asked about not filing a motion to suppress on the specific

issue of going into the candy tin, trial counsel stated: “I don’t know, maybe I was

thinking that when someone consents to a search of his person that he consents to a

search of everything on his person.”

3
We note further that Lewis had no standing to challenge the seizure of the
firearm because he had no possessory interest in it, having discarded it in a home in
which he had no expectation of privacy. See, e.g., United States v. Bushay, 859
FSupp.2d 1335, 1352 (3) (b) (N.D. Ga., 2012).

10
 Warrantless searches are unreasonable under the Fourth Amendment unless

they fall within a well-established exception to the warrant requirement. See Arizona

v. Gant, 556 U. S. 332, 338 (II) (129 SCt 1710, 173 LE2d 485) (2009). “[S]uch

exceptions include searches conducted pursuant to consent, the existence of exigent

circumstances, and searches incident to a lawful arrest.” Caffee v. State, 303 Ga. 557,

560 (2) (814 SE2d 386) (2018). Pretermitting the issue of consent, Bracken had

probable cause to arrest Lewis for threatening him with a gun. Because “probable

cause existed for [Lewis’] arrest[,] the subsequent search which yielded the illegal

contraband was permissible as a search incident to a lawful arrest.”4 Mashburn v.

State, 186 Ga. App. 488, 489 (367 SE2d 881) (1988). See also United States v.

Robinson, 414 U. S. 218, 235 (III) (94 SCt 467, 38 LE2d 427) (1973) (“A custodial

arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth

Amendment [and] a search incident to the arrest requires no additional justification[;]

it is the fact of the lawful arrest which establishes the authority to search.”); Chimel

v. California, 395 U. S. 752, 763 (89 SCt 2034, 23 LE2d 685) (1969) (noting that

4
The cases relied on by Lewis are inapposite as neither concerns a search
incident to arrest. See Mason v. State, 285 Ga. App. 596 (647 SE2d 308) (2007); State
v. Jourdan, 264 Ga. App. 118 (589 SE2d 682) (2003).

11
arresting officer may search arrestee in order to remove any weapons useful for

resisting arrest or effecting escape and that such a search may only include “the

arrestee’s person and the area ‘within his immediate control’ – construing that phrase

to mean the area from within which he might gain possession of a weapon or

destructible evidence”); Caffee, 303 Ga. at 562-564 (2) (b) (probable cause to arrest

defendant for possession of marijuana authorized warrantless search of his pocket as

incident to arrest). To the extent Lewis takes issue with Bracken actually opening the

tin, we find no merit in this contention. In Robinson, the United States Supreme Court

upheld the search of an arrestee’s person and container within his pocket, finding as

follows:

Since it is the fact of custodial arrest which gives rise to the authority to
search, it is of no moment that [the officer] did not indicate any
subjective fear of the respondent or that he did not himself suspect that
respondent was armed. Having in the course of a lawful search come
upon the crumpled package of cigarettes, he was entitled to inspect it;
and when his inspection revealed the heroin capsules, he was entitled to
seize them as “fruits, instrumentalities, or contraband” probative of
criminal conduct.

(Footnotes omitted.) 414 U. S. at 236 (IV). See Bagwell v. State, 214 Ga. App. 15, 16

(446 SE2d 739) (1994) (rejecting defendant’s argument that officer was without

12
authority to open container discovered in pocket during search incident to arrest). See

also Graves v. State, 138 Ga. App. 327, 329 (226 SE2d 131) (1976). Given the

foregoing, trial counsel was not ineffective for failing to file a meritless motion to

suppress this evidence.

2. Lewis next contends that the evidence was insufficient to support his

convictions because Bracken’s testimony was “wholly incredible of belief” and

contained numerous contradictions and inconsistencies.

When evaluating the sufficiency of evidence, the proper standard for
review is whether a rational trier of fact could have found the defendant
guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99
SCt 2781, 61 LE2d 560) (1979). This Court does not reweigh evidence
or resolve conflicts in testimony; instead, evidence is reviewed in a light
most favorable to the verdict, with deference to the jury’s assessment of
the weight and credibility of the evidence. Resolving evidentiary
conflicts and inconsistencies, and assessing witness credibility, are the
province of the factfinder, not this Court.

(Citation and punctuation omitted.) Escutia v. State, 277 Ga. 400, 402 (2) (589 SE2d

66) (2003). Having reviewed the evidence in the light most favorable to the verdict,

we conclude that a rational trier of fact could have found Lewis guilty beyond a

reasonable doubt of the crimes charged.

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 3. Lewis last contends that the trial court committed plain error by failing to

instruct the jury on (a) the definition or elements of possession of a firearm during the

commission of a crime and (b) impeachment. We agree with the former argument but

not the latter.

(a) Lewis did not object at trial to the trial court’s failure to charge the jury on

the definition or elements of possession of a firearm during the commission of a

felony. Accordingly, his challenge is reviewed for plain error only. See OCGA §

17-8-58 (b). Lewis contends that plain error is shown because the jury could not

know how to reach a decision without knowing all of the elements of the crime

charged.

“In reviewing a challenge to the trial court’s jury instruction, we view the

charge as a whole to determine whether the jury was fully and fairly instructed on the

law of the case.” (Citation and punctuation omitted.) Pippen v. State, 299 Ga. 710,

712 (2) (791 SE2d 795) (2016).

Under plain error review, we will reverse the trial court only if the
alleged instructional error was not affirmatively waived, was obvious
beyond reasonable dispute, likely affected the outcome of the
proceedings, and seriously affected the fairness, integrity, or public
reputation of judicial proceedings.

14
(Citation and punctuation omitted.) Cato v. State, 304 Ga. 496, 498 (2) (820 SE2d 41)

(2018). “[S]atisfying the plain-error standard is difficult, as it should be.”

(Punctuation and footnote omitted.) State v. Crist, 341 Ga. App. 411, 415 (801 SE2d

545) (2017).

A review of the record shows that the trial court instructed the jury on the

elements of possession of methamphetamine with intent to distribute, but did not

instruct the jury on the elements of possession of a firearm during the commission of

a crime. But, the trial court read the indictment to the jury, in relevant part, as follows:

And, in the second count, . . . Lewis is charged with possession of a
firearm during the commission of a crime, for that the accused in the
County of Richmond and on the 25th day of September, 2014, did have
on his possession a firearm, to-wit: a Ruger LCR .38-caliber revolver
during the commission of a crime involving possession of a controlled
substance as provided in the Official Code of Georgia 16-13-30, to-wit:
possession of methamphetamine, which crime was a felony. . . .

The trial court also instructed the jurors that the indictment formed the issue that they

had been sworn to try, and that the State had the burden of proving beyond a

reasonable doubt every material allegation of the indictment and every essential

element of the crimes charged. The trial court also sent the indictment out with the

jury during its deliberations and instructed the jury that the State must prove beyond

15
a reasonable doubt that Lewis “knowingly and intentionally participated in [both

crimes] or helped in the commission of such crime[s].”

OCGA § 16-11-106 (b) provides that

[a]ny person who shall have on or within arm’s reach of his or her
person a firearm . . . during the commission of, or the attempt to commit:
. . . (4) Any crime involving the possession, manufacture, delivery,
distribution, dispensing, administering, selling, or possession with intent
to distribute any controlled substance . . . as provided in Code Section
16-13-30 . . . and which crime is a felony, commits a felony. . . .

(Emphasis supplied.)

We find the trial court’s omission here to be error in light of the evidence

presented at trial. On the element of possession, the trial court only read the

indictment which did not include the definition of possession as provided in OCGA

§ 16-11-106 (b). Here, Lewis presented at least some evidence that he did not pull the

gun on Bracken and that it may have belonged to the disgruntled carpet subcontractor.

Under the charge as given, the jury could have convicted Lewis of possession of a

firearm during the commission of a crime simply because the officer found the gun

in the home where Lewis had been working, even though the law requires that Lewis

had the firearm “on or within arm’s reach of his . . . person.” Id. We conclude that this

16
omission affected Lewis’ substantial rights and likely contributed to the outcome of

the case in that it allowed the jury to convict Lewis without considering one of the

essential elements of the crime. Accordingly, we reverse Lewis’ conviction on the

charge of possession of a firearm during the commission of a crime. See, e.g., Aguilar

v. State, 340 Ga. App. 522, 524 (1) (798 SE2d 60) (2017) (reversing conviction for

sexual battery where trial court failed to charge element of lack of consent); Patterson

v. State, 328 Ga. App. 111, 120-121 (4) (761 SE2d 524) (2014) (reversing conviction

for possession of hydrocodone where trial court misstated the law and failed to charge

the jury that possession “had to be knowing”).

(b) Lewis claims that the trial court erred in failing to charge the jury on

impeachment despite his request and the trial court’s own statements during the

charge conference that it would give the charge. Because Lewis did not object to the

omission of this charge, we again review this challenge only for plain error and find

none.

The trial court instructed the jury on witness credibility, noting the various

factors that may be considered in resolving credibility issues as follows:

You must determine the credibility or believability of the witnesses. It
is . . . for you to determine what witness or witnesses you will believe

17
 and what witness or witnesses you do not believe, if there are some that
you do not believe. In deciding their credibility or believability, you may
consider all of the facts and circumstances of the case, the manner in
which the witnesses testify, their interest or lack of interest in the case,
their means and opportunity for knowing the facts about which they
testify, the nature of the facts about which they testify, the probability
or improbability of their testimony, and the occurrences about which
they testify. You may also consider their personal credibility insofar as
it may appear to you, legitimately, from the trial of this case.

The trial court further charged that “[i]t is for you to determine whether or not a

witness has been impeached and to determine the credibility of such witness and the

weight of the witness’s testimony given during the trial of the case and how you will

receive it.” It also charged on false statements by a witness. The trial court’s charge,

when read as a whole, was sufficient to inform the jury how to properly examine and

weigh the evidence in this case. Under the circumstances, we find that reversal is not

warranted based on the trial court’s failure to charge on impeachment. See, e.g.,

Simonette v. State, 262 Ga. App. 117, 119 (584 SE2d 623) (2003) (failure to charge

on impeachment through crimes of moral turpitude harmless where trial judge gave

lengthy instruction on witness credibility); Blackstock v. State, 270 Ga. 117, 119-120

(5) (506 SE2d 130) (1998) (failure to charge jury on false statement by witness did

18
not mandate reversal where trial court properly instructed on impeachment and

credibility of witnesses).

Judgment affirmed in part and reversed in part. Barnes, P. J., and Mercier, J.,

concur.

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