Kenneth Jerome Roundtree v. State

FOURTH DIVISION DILLARD, P. J., RICKMAN, P. J., and BROWN, J.

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. https://www.gaappeals.us/rules DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.

January 22, 2021

In the Court of Appeals of Georgia A20A2067. ROUNDTREE v. THE STATE.

DILLARD, Presiding Judge.

Kenneth Roundtree appeals from his convictions for possession of cocaine and possession of a controlled substance. In doing so, Roundtree argues that (1) there is insufficient evidence to sustain his convictions, (2) the trial court erred by failing to repeat jury instructions or answer a jury question during deliberations, and (3) a new trial should have been granted based upon the general grounds. For the reasons set forth infra, we affirm in part and reverse in part.

Viewed in the light most favorable to the jury’s guilty verdict,1 the record shows that officers made contact with Roundtree—who is homeless—because he had a probation warrant. He was taken into custody and, thereafter, searched pursuant to arrest. During this search, an officer found a folded napkin in Roundtree’s left front pants pocket. A small green bag was inside of the napkin, and two additional green bags were discovered inside Roundtree’s other pocket. Each bag contained residue of a white, powdery substance. Roundtree told the officers that he collected bags like this “all the time,” he found these particular bags near a local park, and he picked them up because children “might get the baggies and put it in their mouth and they won’t be able to handle it like a grown folk will.” The bags later tested positive for cocaine, and further testing revealed that the residue was a mixture of cocaine and a substance called Alpha-PVP.

Roundtree was subsequently indicted on one count of possession of a controlled substance and one count of possession of cocaine. After a trial by jury, he was convicted on both counts. Roundtree thereafter filed a motion for new trial and amended motion for new trial, which the trial court ultimately denied. This appeal follows.

1. Roundtree contends that there was insufficient evidence to sustain his convictions. And while we disagree that the State failed to present sufficient evidence as to the possession-of-cocaine count, we do agree with Roundtree that the evidence was insufficient as to the possession-of-a-controlled-substance count.

On appeal, we view the evidence in the light most favorable to the jury’s verdicts, and it “must be sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt.”2 In doing so, we must set aside any questions “about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact.”3 Here, Roundtree was indicted for possession of cocaine in that he did “unlawfully possess cocaine, a Schedule II controlled substance, in violation of the Georgia Controlled Substances Act[.]”4 He was further indicted for “possession of a controlled substance” in that he did “unlawfully possess Alpha-PVP (alpha- pyrrolidinopentiophenone), a Schedule 1 controlled substance, in violation of [OCGA] § 16-13-30 (a) . . . .” For each count, Roundtree argues that the evidence was insufficient to show that he knew the bags in his possession contained residue of controlled substances.

As our Supreme Court has explained, “[p]ossession of a controlled substance is not a strict liability offense.”5 So, the criminal intent required by OCGA § 16-13-

a. Possession of Cocaine.

As to possession of cocaine, the law-enforcement officer who found the bags testified that, based upon his training and experience, people will collect bags of residue in order to accumulate enough to ingest or to sprinkle into cigarettes. But the officer also testified that he did not find any cigarettes on Roundtree’s person, nor did he find any other drug paraphernalia such as a pipe, cutting blade, or syringe.

of a controlled substance would be a strict liability offense [without knowledge of the drug’s chemical identity].”).

Nevertheless, Roundtree testified in his own defense and explained why he picked up the bags: “You know, the young fellows, they go out there and they smoke, but they just throw their baggies and stuff down, so my concern is little kids going and playing in the park and they might get the baggies and put it in their mouth and they won’t be able to handle it like a grown folk will.” And although he denied knowing the bags contained cocaine residue, he admitted to having previously been convicted for sale of cocaine and, thus, knowing what cocaine looks like.

Needless to say, a jury may find criminal intention, “i.e., knowledge, ‘upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’”8 And given the foregoing testimony by Roundtree himself, the jury was presented with sufficient circumstantial evidence by which to conclude that he knew the three bags in his possession contained cocaine residue.9

b. Possession of Alpha-PVP (alpha-pyrrolidinopentiophenone).

As to the possession of a controlled substance, namely “Alpha-PVP (alpha- pyrrolidinopentiophenone),” the State failed to present sufficient evidence as to this count because “Alpha-PVP (alpha-pyrrolidinopentiophenone)” is not listed in any of the controlled substance schedules.10 Nor was there testimony or other evidence that to accept as true [the defendant’s] assertion that he believed the pills were a different Schedule I controlled substance” and “[i]t is the jury’s prerogative to choose what evidence to believe and what to reject”).

“Alpha-PVP (alpha-pyrrolidinopentiophenone)” is chemically related to any listed controlled substance.11 Indeed, the forensic chemist only referred to the drug as Alpha-PVP and was never questioned about its specific chemical properties or other information that might link it to a listed controlled substance. Nor did the State elicit any such testimony from its law-enforcement witness who was admitted as an expert in use and possession of cocaine and Alpha-PVP. As a result, the State failed to present sufficient evidence to sustain Roundtree’s conviction on the count for possession of “Alpha-PVP (alpha-pyrrolidinopentiophenone)” as a controlled

“Alpha-pyrrolidinopentiophenone, also known as alpha-PVP, optical isomers, salts and salts of isomers”). substance because it failed to present evidence that the substance in Roundtree’s possession was controlled.12 2. Next, Roundtree contends that the trial court erred by failing to repeat jury instructions or answer a jury question during deliberations. We disagree.

The record shows that during the charge to the jury, the trial court instructed the jury on knowledge as follows:

See DeLong v. State, 310 Ga. App. 518, 522 (2) (714 SE2d 98) (2011) (reversing conviction for distribution of a controlled substance when “Ambien,” as drug was referenced at trial, is not listed as a controlled substance and State failed to present evidence showing that “Ambien” is “Zolpidem,” which is listed as a controlled substance); see also Elrod v. State, 143 Ga. App. 331, 331 (238 SE2d 291) (1977) (“[Because] there is no testimony that Demerol is the equivalent of a controlled substance, [the Code section] which dictates inclusion of the trade name in controlled drug schedules cannot aid the state. Before [the Code section] is operative the trade name must be linked to its scheduled equivalent. As the state failed to carry its burden of proving by competent evidence that the drug Demerol was a narcotic regulated by law, it was error to deny defendant’s motion for a directed verdict of acquittal.”). Cf. Tant v. State, 247 Ga. 264, 267 n.1 (275 SE2d 312) (1981) (citing Elrod with approval to note that “[i]t has been held that the generic equivalent of a trade name is not the proper subject of judicial notice” but distinguishing itself from Elrod because “the testimony as to the trade name, Quaaludes, in this case was sufficiently connected with the generic equivalent, methaqualone, by the description of the pills, or tablets, by the witnesses and by the crime lab report”); Hulsey v. State, 220 Ga. App. 64, 64-65 (467 SE2d 610) (1996) (holding that State sufficiently linked trade name to controlled substance); Crosby v. State, 150 Ga. App. 804, 805 (4) (258 SE2d 593 (1979) (distinguishing Elrod and holding that State met burden of proof through testimony using controlled substance’s name as listed in Act).

Knowledge on the part of the defendant that the crimes of count one, [violating the Georgia Controlled Substances Act “VGCSA”], possession of cocaine, and count two, VGCSA, possession of a controlled substance were being committed and the defendant knowingly and intentionally participated in or helped in the commission of such crime must be proved by the State beyond a reasonable doubt.

If you find from the evidence in this case that the defendant had no knowledge that a crime was being committed or that the defendant did not knowingly and intentionally commit, participate, or help in the commission of the alleged offense, then it would be your duty to acquit the defendant.

On the other hand, should you find beyond a reasonable doubt that the defendant had knowledge of the crimes of count one, VGCSA, possession of cocaine, and count two, VGCSA, possession of a controlled substance, were being committed and that the defendant knowingly and intentionally participated or helped in the commission of it, then you would be authorized to convict the defendant.

The evidence must show beyond a reasonable doubt that the defendant had knowledge that he was in possession of the controlled substances named in the indictment.

Thereafter, during deliberations, the jury asked the trial court whether Roundtree had “to have knowledge of what he possessed?” In response, the judge instructed the jury to refer to “the charge that I’ve already given you a few minutes ago” because it “discussed that particular matter.” Of note, neither the State nor Roundtree objected to this answer, and the jury did not ask any additional questions before returning its verdict.

Roundtree argues on appeal that the trial court abused its discretion by failing to recharge the jury on knowledge. But because Roundtree’s trial counsel did not object at trial, we review this enumeration for plain error only.13 And reversal based on plain error is authorized only if “the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings.”14

Suffice it to say, satisfying all four prongs of this standard is demanding, “as it should be.”15 It is well established that when a jury does not ask the trial court to recharge its instructions, but rather to expound on them, it is “within the trial court’s sound discretion to determine the need, breadth, and formation of any additional jury instructions.”16 And here, the jury did not ask the court to recharge them as to knowledge, only whether Roundtree had “to have knowledge of what he possessed[.]”

obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” (punctuation omitted)).

As a result, the trial court did not abuse its discretion by referring the jury to its previous charge as to knowledge to answer that question and, thus, Roundtree failed to establish that the court erred, much less plainly erred.17 3. Finally, Roundtree asserts that the trial court erred in failing to grant his motion for new trial based upon the “general grounds” of OCGA §§ 5-5-20 and 5-5- 21. Once again, we disagree.

See Weyer, 333 Ga. App. at 715-16 (“[The defendant] has failed to prove that the trial court committed any error in its fashioning of a supplemental instruction to the jury regarding the definition of ‘entice,’ and thus the first prong of the test for plain error has not been satisfied.”); Lovelace v. State, 262 Ga. App. 690, 694 (5) (586 SE2d 386) (2003) (“Our Supreme Court ruled that the trial court erred in not recharging the jury because if the jury requests a recharge on any issue, it is the court’s duty to do so. Here, however, the jury did not ask for a recharge.

Supplemental instructions to the jury are generally within the discretion of the trial court. In these circumstances, we cannot say that it was an abuse of discretion for the trial court to decline to further instruct the jury.” (footnotes omitted)). Cf. Dill v. State, 277 Ga. 150, 152-53 (2) (587 SE2d 56) (2003) (“In its response to the jury, the trial court reiterated the definition of malice murder but refused to recharge the jury on the issues of presence and knowledge, despite the fact that these issues were indisputably pertinent to the jury’s request. By refusing the jury’s specific request for clarification on issues of presence and knowledge, the trial court undercut the relevance of these issues in the jury’s deliberations and effectively undermined [the defendant’s] right to have the jury fairly and completely consider these aspects of his defense.”); Edwards, 233 Ga. at 626 (2) (“It is obvious from the court’s statement that the jury had communicated a request to him for a recharge on murder and manslaughter, and that he had refused to do this. This was error.”).

On a motion for new trial, even if the evidence is legally sufficient to sustain a conviction,18 the trial court may order a new trial as the thirteenth juror only if the “verdict of a jury is found contrary to evidence and the principles of justice and equity”19 or if the verdict is “decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.”20 Importantly, OCGA §§ 5-5-20 and 5-5-21 afford the trial court “broad discretion to sit as a ‘thirteenth juror’ and weigh the evidence on a motion for new trial alleging these general grounds.”21 And in exercising discretion as the “thirteenth juror,” the trial court must consider some of the things it cannot when “assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence.”22 Even so, the trial court’s discretion to grant a new trial under these circumstances “should be exercised with caution and invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.”23 Furthermore, we presume, in the absence of affirmative evidence to the contrary, that the trial court “properly exercised its discretion [under] OCGA §§ 5-5-20 and 5-5-21.”24 In this case, the trial court’s order sets forth the standards applicable to OCGA §§ 5-5-20 and 5-5-21, respectively, considers the evidence presented at trial in support of Roundtree’s conviction for possession of cocaine, and then explains the decision not to exercise its discretion to grant a new trial as the thirteenth juror. Thus, the order “clearly indicates that [the court] properly performed its duty to exercise its discretion and weigh the evidence in consideration of the general grounds.”25 And as our Supreme Court has previously explained,

OCGA § 5-5-20, i.e., that the verdict is contrary to the evidence, addresses itself only to the discretion of the trial judge. Whether to grant a new trial based on OCGA § 5-5-21, i.e., that the verdict is strongly against the evidence, is one that is solely in the discretion of the trial court, and the appellate courts do not have the same discretion to order new trials.26

So, even when we are asked to review a trial court’s refusal to grant a new trial on the general grounds, we must review the evidence in the light most favorable to the prosecution and determine whether it supports the verdict or verdicts.27 And as explained in Division 1 (a) infra, the evidence was sufficient to support Roundtree’s conviction for possession of cocaine.

For all these reasons, we affirm Roundtree’s conviction for possession of cocaine and reverse his conviction for possession of a controlled substance, namely Alpha-PVP.

Judgment affirmed in part and reversed in part. Rickman, P. J., and Brown, J., concur.