                               SECOND DIVISION
                                 MILLER, P. J.,
                            RICKMAN and REESE, 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


                                                                    January 17, 2020




In the Court of Appeals of Georgia
 A19A2307. DENSON v. THE STATE.

      MILLER, Presiding Judge.

      Steven Marcus Denson seeks review of his criminal conviction and sentence

after a jury found him guilty of trafficking in methamphetamine in 2007.1 His sole

argument on appeal is that the evidence was insufficient to support his conviction.

Because the State did not present any evidence from which a reasonable jury could

infer that Denson was more than a mere bystander at the scene, we reverse Denson’s

conviction.

      1
        For reasons unknown to this Court, the trial court did not resolve Denson’s
motion for new trial (timely filed in 2007) in this run of the mill drug case until nine
years after it was filed. Although the record indicates that Denson has since finished
serving his sentence, we nevertheless exercise our discretion to hear this appeal. See
Clark v. State, 301 Ga. App. 354, 355 (687 SE2d 593) (2009) (noting that we have
the discretion to hear a criminal appeal even after the defendant has finished serving
his sentence).
      Viewed in the light most favorable to the verdict,2 the evidence adduced at trial

showed that a police officer was patrolling a neighborhood in Walker County,

Georgia, when he noticed a black pickup truck with a trailer that was sticking out of

a driveway and blocking a lane of traffic. The officer approached the house to address

the situation and saw two men outside. Once the officer made his presence known,

one of the men ran to the back of the house and the other person identified himself

as Bobby Henry.3 Henry told the officer that he had come to the house to sell a motor

and that the truck belonged to his girlfriend. Finding the situation “odd,” the officer

called for back-up and knocked on the front door. Ten minutes later, Robert Clifton,

the owner of the house, answered the door and consented to a search of the house.

The officers found Harold Green in a laundry room and Denson in the main

bathroom. When the officer found Denson, Denson told the officer that he had spent

the night and that he “did not know what was going on.” During the search of the

house, the officers found multiple ingredients and paraphernalia commonly used to

manufacture methamphetamine. The house smelled strongly of the same smell that

is usually found in methamphetamine labs, and methamphetamine lab components

      2
          Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
      3
          The man who ran away was never identified.

                                          2
were found in every room of the house except the bathroom where Denson was

found. Methamphetamine was not being “actively cooked” at the time of the search,

and the police officer who conducted the search testified that he was not certain as to

how long ago anything had been made in the house. .

      A grand jury indicted Denson on one count of trafficking in methamphetamine

by manufacture (OCGA § 16-13-31 (f)), one count of the distribution of a controlled

substance (OCGA § 16-13-30 (b)), two counts of the purchase or possession of a

controlled substance (OCGA § 16-13-30 (a)), and one count of possession of altered

ephedrine (OCGA § 16-13-30.3 (d)). At trial, a jury convicted Denson of trafficking

in methamphetamine but acquitted him of all other charges, and the trial court then

sentenced Denson to ten years’ imprisonment. Denson timely filed a motion for new

trial in June 2007. After a hearing on the motion in April 2016, the trial court denied

the motion. This appeal followed.

      Denson’s sole argument on appeal is that the evidence was insufficient to

support his conviction for the trafficking of methamphetamine because the evidence

at most showed that he was merely present at the scene. We agree.

      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


                                          3
      presumption of innocence. This Court determines whether the evidence
      is sufficient under the standard of Jackson v. Virginia 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.


(Citation and punctuation omitted.) Ratana v. State, 297 Ga. App. 747, 747-748 (678

SE2d 193) (2009). “To warrant a conviction 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.” OCGA § 24-4-6

(2003).

      “Any party to a crime who did not directly commit the crime may be indicted,

tried, convicted, and punished for commission of the crime upon proof that the crime

was committed and that he was a party thereto. . . .” OCGA § 16-2-21. A person is a

party to a crime when that person, among other things, “[i]ntentionally aids or abets

in the commission of the crime.” OCGA § 16-2-20 (b) (3).

      While mere presence at the scene of the commission of a crime is not
      sufficient evidence to convict one of being a party thereto, presence,
      companionship, and conduct before and after the offense are
      circumstances from which one’s participation in the criminal intent may

                                           4
      be inferred. If the defendant had knowledge of the intended crime and
      shared in the criminal intent of the principal actor, he is an aider and
      abettor. Hence, if the defendant was at the scene and did not disapprove
      or oppose the commission of the offense, a trier of fact may consider
      such conduct in connection with prior knowledge and would be
      authorized to conclude the defendant assented to the commission of the
      offense, that he lent his approval to it, thereby aiding and abetting the
      commission of the crime.


(Citation omitted.) Head v. State, 261 Ga. App. 185, 187 (1) (582 SE2d 164) (2003).

“[E]vidence of a defendant’s conduct prior to, during, and after the commission of a

criminal act will authorize the defendant’s conviction for commission of the criminal

act if a jury could infer from the conduct that the defendant intentionally encouraged

the commission of the criminal act.” (Citation omitted.) Ratana, supra, 297 Ga. App.

at 749.

      “[A]ny person who manufactures methamphetamine . . . in violation of this

article commits the felony offense of trafficking methamphetamine.” OCGA § 16-13-

31 (f) (2003). Georgia law defines the word “manufacture” as “the production,

preparation, propagation, compounding, conversion, or processing of a controlled

substance.” OCGA § 16-13-21 (15) (2003).




                                          5
      We agree with Denson that the evidence was insufficient to support his

conviction because there is no evidence that Denson shared the intent to traffic

methamphetamine. The evidence of the strong smell and the widespread drug

paraphernalia in the house, while sufficient to show that a reasonable person might

be aware of some sort of illegal venture being conducted in Clifton’s house, was not,

in and of itself, sufficient to eliminate all reasonable doubt as to whether Denson was

a party to the crime of trafficking. See Ratana, supra, 297 Ga. App. at 749. The

circumstances of the situation simply do not present anything that we can point to that

showed that Denson shared with the codefendants the intent to manufacture

methamphetamine or that would exclude the reasonable doubt that Denson was

simply an indifferent bystander. There is no evidence that Denson benefitted

financially from the venture, procured supplies, equipment, or knowledge for the

venture, or otherwise participated in the manufacturing, marketing, or distribution of

the methamphetamine. Moreover, the evidence in this case showed that the

methamphetamine lab was not functioning at the time of the search, and there was no

evidence presented that Denson regularly spent time at Clifton’s house such that a

jury could presume that he was present or participated when methamphetamine was

being manufactured. Because the evidence presented showed nothing more than

                                          6
Denson’s mere presence in Clifton’s house, at a time when methamphetamine was not

being actively manufactured, we conclude that the evidence was insufficient to

support Denson’s conviction for trafficking in methamphetamine. See Franks v. State,

325 Ga. App. 488, 492 (1) (758 SE2d 604) (2013) (“Mere presence, without proof of

participation, is insufficient to support a conviction.”) (citation omitted).

      We further conclude that the case relied upon by the State, Franks, supra, and

our similar decision in Hughes v. State, 309 Ga. App. 150 (709 SE2d 900) (2011), are

materially distinguishable. In Hughes, the defendant was found in a house next to a

bag of methamphetamine, with a fully functioning methamphetamine lab in the room

next door. Id. at 151-152 (1). Additionally, evidence was presented that the defendant

owned the premises in which the methamphetamine lab was found. Id. at 152 (1). In

this case, there was no evidence presented that Denson owned the house, nor was

there any evidence that Denson was in possession of illegal substances. Moreover,

the evidence in this case showed that the methamphetamine lab was not functioning

at the time of the search, and there was no evidence shown that Denson regularly

spent time at Clifton’s residence or had been there on another occasion when the lab

was operational. Similarly, in Franks, the State presented evidence that the defendant

was living in the house at the time of the arrest, that the defendant appeared nervous

                                           7
around the police and rushed ahead to alert others to the officer’s presence, that the

defendant had suffered a serious burn, and that burns are a common injury sustained

in the production in methamphetamine. Franks, supra, 325 Ga. App. at 493-494 (1).

None of these factors are present in this case. Accordingly, because the evidence

presented at trial was insufficient to sustain his conviction, we reverse Denson’s

conviction for trafficking of methamphetamine.

      We take the time to express grave concern about the severe delays that have

resulted in our resolving this direct appeal in a run of the mill criminal case nearly

thirteen years after Denson was originally convicted and sentenced, especially now

that Denson has already finished serving his substantial prison sentence. The record

in this case does not reveal to us the reason why this case languished in the trial court

for almost ten years between Denson’s conviction and his direct appeal, but we

lament that this case unfortunately serves as yet another example proving the legal

maxim that “Justice delayed is justice denied.” Because Denson has already

completed his sentence, we note that the law provides the remedy of restricting or

correcting his criminal records upon petition with the county clerk. See Doe v. State,

347 Ga. App. 246, 252-256 (4) (819 SE2d 58) (2018) (discussing the options

available under current law to restrict or correct criminal records).

                                           8
Judgment reversed. Rickman and Reese, JJ., concur.




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