O'NEILL v. State

Hines, Justice,

dissenting.

I respectfully dissent because the majority has usurped the province of the trial court by essentially retrying this drug case and then wrongly concluding that the evidence fails to show that defendant O’Neill possessed methamphetamine. The majority reverses the Court of Appeals, and thereby, acquits O’Neill of the drug charge against him, based upon its determinations that the Court of Appeals improperly relied upon a statement made to police by O’Neill’s co-conspirator, and that there exists another reasonable hypothesis save O’Neill’s guilt. But, such reasoning is fatally flawed.

First, the issue before this Court is not an assessment of the *130evidence recited by the Court of Appeals, but rather, scrutiny of the evidence considered by the factfinder at trial, which in this case was the trial court itself. In a bench trial, this Court is to presume that the trial court separated admissible evidence from inadmissible evidence and considered only the former in reaching its judgment. Thomas v. State, 284 Ga. 540, 545 (2) (668 SE2d 711) (2008). And the record in this case does not rebut the presumption that the trial court considered only admissible evidence in finding O’Neill guilty. This Court is never to re-weigh evidence or to resolve any conflicts in it; instead, our role is to review the evidence, post-conviction, in a light most favorable to the judgment of guilt, giving deference to the factfinder’s assessment of the weight and credibility of the evidence. Young v. State, 280 Ga. 65, 66 (1) (623 SE2d 491) (2005). Our mandate is to apply the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Young v. State, supra at 66 (1). Second, the majority bases its alternative “reasonable hypothesis” on the very statement that it finds inadmissible. There is little question that the evidence before the trial court, who was sitting as the finder of fact as well as the determiner of law in this case, was more than sufficient under Jackson v. Virginia.

As noted, O’Neill was tried before the court sitting without a jury, and he stipulated to the evidence presented at the hearing on his motion to suppress and to the results of the state crime lab’s analysis of the seized contraband. He was found guilty of and sentenced for unlawful possession of methamphetamine inside a ring box found close to him in a motel room in which police uncovered significant quantities of methamphetamine, methylenedioxymeth-amphetamine, and alprazolam. The evidence against O’Neill, though circumstantial, was compelling. The motel room was rented by an area resident who paid cash, circumstances indicative of drug activity. When the police entered the motel room, they were confronted by a scene familiar to them in handling drug cases — the presence of weapons. There were knives scattered all around the room with a knife by O’Neill’s hands. O’Neill appeared to be passed out on the bed, but the police considered him a threat to their safety in the event that he was feigning unconsciousness. O’Neill apparently could not stand when asked to do so and had to be helped to sit up for a “pat down.” The officers spied on the bed near O’Neill the ring box in question and two glass pipes of a type commonly used to smoke methamphetamine placed in an ashtray. The ring box contained approximately 2.86 grams of crystal methamphetamine. All of the drugs found in the room, save the methamphetamine in the ring box, were claimed by or linked to one or the other of O’Neill’s *131companions. In addition, the officers learned from O’Neill’s cohorts that O’Neill “had been either drinking or smoking the entire night.”

Certainly, to warrant a conviction based upon circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but also must exclude every other reasonable hypothesis save that of the guilt of the accused. Smith v. State, 284 Ga. 304, 306 (2) (667 SE2d 65) (2008). The circumstantial evidence authorized the finding that O’Neill had equal access to the methamphetamine, and therefore, was in joint possession of it. Davis v. State, 270 Ga. App. 777, 779 (607 SE2d 924) (2004); Washington v. State, 251 Ga. App. 206, 209 (1) (553 SE2d 855) (2001). Compare Granger v. State, 142 Ga. App. 612 (236 SE2d 762) (1977). The fact that O’Neill may have been asleep or unconscious at the time the drugs were found does not preclude such a finding. There was ample evidence from which the trial court could conclude that O’Neill consciously and knowingly possessed the methamphetamine prior to his apparent loss of consciousness. Barfield v. State, 160 Ga. App. 228, 230 (3) (286 SE2d 516) (1981). Again, O’Neill’s companions told police that O’Neill was in the altered state because of his nightlong “drinking or smoking,” which is the statement taken to task by the majority. Contrary to the majority’s assertion, the record does not establish the timing of the statement, much less that it was made after the men were in custody and the conspiracy at an end. In fact, the record supports the contrary conclusion. One of the officers testified that the men were “formally arrested” only “subsequent to the search of the room and after [the officers] had obtained all the evidence.” The statement was admissible against O’Neill because the criminal enterprise, in which O’Neill was a co-conspirator, was still pending. Redwine v. State, 280 Ga. 58, 63 (3) (d) (623 SE2d 485) (2005); compare Fetty v. State, 268 Ga. 365, 371 (7) (489 SE2d 813) (1997). The obvious import of the statement is that O’Neill both smoked the crystal methamphetamine and consumed alcohol, resulting in his unresponsive state. But, even absent such statement, O’Neill’s apparent complete loss of consciousness and difficulty in waking signaled a state other than normal sleep; the trial court could have readily surmised from its examination of the evidence at hand that O’Neill’s lethargy and loss of consciousness were the aftereffects, in whole or in part, of his ingestion of methamphetamine. See Keef v. State, 220 Ga. App. 134, 137 (1) (b) (469 SE2d 318) (1996) (defendant driver falls asleep behind the wheel following ingestion of methamphetamine and alcohol). Moreover, the trial court, when serving as factfinder at trial and in arriving at a judgment, may take into account knowledge gleaned from the court’s own experience, in this instance, any experience in dealing with those under the influence of methamphetamine. State v. Mallory, 180 Ga. App. 815, *132816 (350 SE2d 823) (1986). O’Neill’s unresponsiveness in conjunction with the undisputed evidence of the crystal methamphetamine, the apparently-used drug paraphernalia and ashtray at O’Neill’s fingertips, and the other suspicious circumstances outlined above raise the reasonable inference that O’Neill possessed, and indeed, personally used the methamphetamine.

Yet, the majority blinds itself to these circumstances, and produces its own alternative theory. The majority opinion hinges on its finding that the evidence suggests the hypothesis that only O’Neill’s cohorts possessed and used the crystal methamphetamine, and that O’Neill lost consciousness solely as the result of his drinking alcohol or, as a fallback, some other unknown or undisclosed condition. But, this hypothesis is patently unreasonable. There was no evidence of O’Neill’s exclusive drinking, much less copious alcohol consumption, save a strained construction of the co-indictees’ statement to police, which statement has been wholly discredited by the majority. In fact, the only evidence to support the majority’s offered hypothesis of O’Neill’s drunkenness is the statement to police which the majority has decided was inadmissible. Thus, the majority’s analysis forecloses its conclusion. The police officers testified in detail of what they observed after entering the motel room; yet, there was no mention of alcohol containers, empty or otherwise, found near O’Neill or in the motel room at all. Nor was there any evidence of the odor of alcohol on or about O’Neill. This would most certainly have been the case had O’Neill been drinking alcohol in such quantity so as to have rendered him unconscious solely from its ingestion. The trial court could consider the absence of evidence of O’Neill’s alcohol consumption or the absence of evidence that O’Neill was suffering from some other condition which would have rendered him unconscious.

In any event, whether every reasonable hypothesis except that of the guilt of the defendant has been excluded is a question for the finder of fact. Barfield v. State, 160 Ga. App. 228, 231 (3) (286 SE2d 516) (1981). This is so because “the factfinder has heard the witnesses and observed them testify,” and therefore, “is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court.” Boyd v. State, 291 Ga. App. 528, 530 (662 SE2d 295) (2008). Here, the trial court sitting as factfinder resolved the issue of possession of the methamphetamine adversely to O’Neill. Barfield v. State, supra at 231 (3). It was authorized to reject as unreasonable possibilities which were only theoretical, as those now offered by the majority. Walker v. State, 282 Ga. 406, 408 (1) (651 SE2d 12) (2007).

Simply, the majority has parsed the evidence and substituted its judgment for that of the trial court. It has exceeded the bounds of *133appellate review, resulting in Mr. O’Neill’s unfounded freedom. The Court of Appeals correctly upheld the trial court’s judgment of conviction against O’Neill, and it should be affirmed.

Decided March 9, 2009. Gary V. Bowman, for appellant. Tommy K. Floyd, District Attorney, David E. Slemons, Assistant District Attorney, for appellee.

I am authorized to state that Justice Carley and Justice Thompson join in this dissent.