concurring specially
I agree that the judgment should be vacated and the case remanded for further proceedings as set out in the majority opinion. However, I disagree with the majority’s analysis of why admission of the Similar Transaction without the appropriate findings by the trial judge was potentially harmful error.7
Although the majority ultimately and properly concludes that this evidence taken together was sufficient to authorize McCrory’s conviction, thus permitting retrial should that be necessary on remand, the majority errs by unequivocally stating that “the State could not *181establish that McCrory had actual possession of the cocaine found in the Vehicle on May 25.” (Maj. op. at 178.) Because this statement is inconsistent with the majority’s conclusion on sufficiency and is unnecessary to the analysis, I write separately to clarify that should a retrial be required, the issue of whether McCrory had actual or constructive possession of the cocaine has not been decided by this Courtandshouldnotbeconsideredlawofthecase. SeeOCGA § 9-11-60 (h) (“any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be”).
Decided March 16, 2017 Reconsideration denied March 31, 2017. Michael W. Tarleton, for appellant.Construed to support the jury’s verdict, the evidence shows that when police arrived on the scene of the altercation, they observed McCrory standing in the street with a baseball bat shouting at another man who was “quite a distance” farther away. When the officers dispatched to the scene first observed McCrory, he was located approximately five feet from the driver’s side of a white car, which was also sitting in the middle of the street. The car door was “wide open,” the keys were in the ignition, and a partially rolled marijuana joint was sitting in plain view in the ashtray. After the officer saw the marijuana joint, he looked up and observed bags used to package drugs in the sun visor, and a search revealed 65 plastic bags containing 130 hits of crack cocaine in the console arm rest between the front seats. And the vehicle in question belonged to McCrory’s girlfriend. This circumstantial evidence, as well as other evidence presented at trial, including the similar transaction evidence, was sufficient to authorize McCrory’s conviction of possession of cocaine. See, e.g., Williams v. State, 298 Ga. 208, 213 (2) (a) (779 SE2d 304) (2015) (circumstantial evidence coupled with other evidence sufficient); Taylor v. State, 305 Ga. App. 748, 751-52 (1) (700 SE2d 841) (2010) (circumstantial evidence along with other evidence such as similar transaction evidence sufficient). However, in light of the circumstantial nature of the State’s case, I cannot say that the trial court’s error in failing to make the necessary findings was harmless. See Moore v. State, 290 Ga. 805, 809 (2) (725 SE2d 290) (2012).
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Kevin C. Armstrong, Assistant District Attorneys, for appellee.Because I do not agree with all that is said in the majority opinion, that opinion is nonbinding physical precedent. See Court of Appeals Rule 33 (a).