                              SECOND DIVISION
                                DOYLE, C. J.,
                          MILLER, P. J., and REESE, 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.
                                http://www.gaappeals.us/rules


                                                                       June 7, 2017




In the Court of Appeals of Georgia
 A17A0446. CALCATERRA v. THE STATE.

      REESE, Judge.

      A Gordon County jury found Mark Calcaterra guilty beyond a reasonable doubt

of trafficking in cocaine, OCGA § 16-13-31 (a) (1) (C), and possession of marijuana

with intent to distribute, OCGA § 16-13-30 (j) (1). He appeals from the trial court’s

denial of his motion for new trial, contending that there was insufficient evidence to

support his conviction. For the reasons set forth, infra, we affirm.

              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
      presumption of innocence. This Court determines whether the evidence
      is sufficient under the standard of Jackson v. Virginia,[1] and does not
      weigh the evidence or determine witness credibility. Any conflicts or


      1
          443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
      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.2


      Viewed in this light, the evidence showed that, at approximately 9:40 p.m. on

March 27, 2012, the Appellant was a passenger in a car driven by his wife, Nakenya

Calcaterra (hereinafter, “Ms. Calcaterra”), as they traveled northbound on I-75 in

Gordon County. A law enforcement officer conducted a traffic stop,3 approached the

passenger side of the car, and obtained Ms. Calcaterra’s Illinois driver’s license.

When the officer asked Ms. Calcaterra if she owned the vehicle, she first said that it

belonged to her brother-in-law. When the officer asked her for the registration,

however, she backtracked and said that her brother-in-law had rented the car and

loaned it to her. The rental agreement showed that a person named “Gary Owens” had

rented the car in Ohio.4 According to the officer, while he was speaking with Ms.




      2
          Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004) (citations omitted).
      3
          A video-recording of the stop was played for the jury at trial.
      4
       At trial, the State showed that the Appellant had a brother named Gary Owens
and that Owens lived in Ohio.

                                            2
Calcaterra, he observed that the Appellant was looking straight ahead, his hands were

“clench[ing]” a cell phone, and he did not participate in the conversation.

      The officer asked Ms. Calcaterra to step out of the vehicle so he could

determine if she was impaired, and she complied. The officer asked her why she had

traveled to Georgia, and Ms. Calcaterra gave conflicting answers about when she had

driven down and whom she had been visiting. She also told the officer that her

passenger was a friend who had traveled with her on the trip, but then immediately

told him, instead, that her friend had been staying in Georgia before she came down

and that he was now riding back to Ohio with her.

      The officer walked to the passenger-side window and asked the Appellant if

he had any identification. The Appellant responded that he did not, but said that his

name was Mark Calcaterra. When asked how he knew Ms. Calcaterra, the Appellant

said that she was his wife and that they had been married since 2005. The Appellant

expressed surprise when the officer told him that Ms. Calcaterra had said he was just

a friend. When asked why he was in Georgia, the Appellant told the officer that he

came down to visit family members.

      Based upon the couple’s inconsistent responses, the officer suspected that there

might be contraband in the vehicle, and he obtained the consent of both Ms.

                                          3
Calcaterra and the Appellant to search the car. When the officer started looking

around the passenger compartment of the car, he smelled an odor that he recognized

as the smell of raw marijuana. While searching the trunk, the officer observed two

small, plastic grocery bags – one containing men’s clothing and the other containing

women’s clothing. The officer also discovered over 554 grams of cocaine of at least

60 percent purity and over 445 grams of marijuana hidden in the trunk’s side panels.5

      The officer arrested the Appellant and Ms. Calcaterra, and the State jointly

indicted them, charging them with trafficking in cocaine and possession of marijuana

with intent to distribute. In addition to the evidence concerning the traffic stop, as

recounted above, the following evidence was presented during their joint trial.

      The Appellant and his wife had seven children between the ages of five months

and eighteen years, as well as two grandchildren. In March 2012, the Appellant was

physically disabled and was not employed, while Ms. Calcaterra worked delivering

pizza. The couple was experiencing financial troubles and were behind in paying their

rent, car payment, and other bills to the extent that they were feeling “desperate.”

According to Ms. Calcaterra, the financial problems were causing her and the

      5
       This Court affirmed the trial court’s denial of Ms. Calcaterra’s motion to
suppress, which had challenged the legality of the traffic stop and the detention that
followed. See Calcaterra v. State, 321 Ga. App. 874 (743 SE2d 534) (2013).

                                          4
Appellant to fight a lot, so they decided to take a “spur-of-the-moment” trip “to get

away for a little while” and spend time together.

      The couple borrowed a car from the Appellant’s brother, left their children and

grandchildren in his care, and started driving to Georgia just after midnight on March

27, 2012. They drove to the home of the Appellant’s cousin in Atlanta, arriving at

about 10:00 a.m. The couple took a nap, and then the Appellant watched television

with his cousin for the rest of the day. Ms. Calcaterra, however, left for a few hours

before returning to the cousin’s house that evening. She picked up the Appellant, and

they started driving back to Ohio. As they were leaving, the Appellant told his cousin

that he had to “go handle some business.” They then traveled for less than an hour

before the traffic stop took place. In addition, Ms. Calcaterra admitted that, despite

their serious financial troubles, they spent at least $140 on gas and food between

leaving Ohio around midnight and the traffic stop later that evening, for the sole

purpose of spending a few hours with family members.

      After considering the evidence, the jury found both the Appellant and Ms.

Calcaterra guilty of trafficking in cocaine and possession of marijuana with intent to




                                          5
distribute.6 The trial court denied the Appellant’s motion for new trial, and this appeal

followed.

      The Appellant argues that the evidence showed that he was merely present in

the car and did not know that the drugs were hidden in the trunk.7

      A participant to a crime may be convicted although he is not the person
      who directly commits the crime. A person who intentionally aids or
      abets in the commission of a crime or intentionally advises, encourages,
      hires, counsels or procures another to commit the crime may be
      convicted of the crime as a party to the crime. Mere presence at the
      scene is not sufficient to convict one of being a party to a crime, but
      criminal intent may be inferred from conduct before, during, and after
      the commission of a crime.8




      6
      Ms. Calcaterra unsuccessfully appealed her conviction. See Calcaterra, 321
Ga. App. at 874-877.
      7
         The record shows that the trial court instructed the jury on, inter alia,
circumstantial evidence, parties to a crime, mere presence, mere association,
knowledge, criminal intent, active and constructive possession of contraband, and
joint possession.
      8
        Huntley v. State, 331 Ga. App. 42, 43 (1) (769 SE2d 757) (2015) (citation and
punctuation omitted). See also OCGA §§ 16-2-6 (The trier of fact may find that a
person acted with criminal intent through “consideration of the words, conduct,
demeanor, motive, and all other circumstances connected with the act” for which the
person is being tried.); 16-2-20 (a), (b) (3) (when a person may be convicted as a
party to a crime).

                                           6
      In support of his “mere presence” argument on appeal, the Appellant relies

solely on his wife’s exculpatory trial testimony. Ms. Calcaterra testified that, during

a stop at a gas station on the way to Georgia, her step-brother called her on her cell

phone while the Appellant was in the station buying food. According to Ms.

Calcaterra, her step-brother asked her to do him a “favor,” offering to pay her $2,000.

She did not ask what the favor was, nor did she tell the Appellant about the call. After

arriving at the Appellant’s cousin’s home and taking a quick nap, Ms. Calcaterra left

and went to her step-brother’s home, which was a few minutes away in Decatur. Her

step-brother asked her to transport some drugs to Ohio, and, when she agreed, he hid

the drugs in the car’s trunk. Ms. Calcaterra then picked up the Appellant at his

cousin’s house and started driving back to Ohio. She testified that she did not tell the

Appellant about the drugs in the trunk or the money she was paid because she knew

he would not have approved of what she was doing.

      During her testimony, however, Ms. Calcaterra contradicted herself as to

whether the couple’s ten-hour trip to Georgia had been a “spur-of-the-moment” idea

or had been planned in advance. And, during cross-examination by the State, Ms.

Calcaterra admitted that, in the four months since she and her husband had been



                                           7
arrested, she had never told authorities that her husband was innocent or otherwise

tried to exonerate him.

      The issue of whether the Appellant was a party to the crimes by aiding and

abetting Ms. Calcaterra in the commission of the drug offenses was a question for the

jury to decide.9 Further, “[a] jury is authorized to believe or disbelieve all or any part

of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence

before it.”10 Thus, the jury was authorized to reject as incredible Ms. Calcaterra’s

testimony regarding the couple’s reasons for traveling to Georgia and her claim that

the Appellant had no knowledge of the crimes she was committing.11


      9
          See Huntley, 331 Ga. App. at 43 (1).
      10
        Lewis v. State, 287 Ga. App. 379, 381 (651 SE2d 494) (2007) (citations and
punctuation omitted).
      11
         See Lewis, 287 Ga. App. at 381; see also Gordon v. State, 329 Ga. App. 2,
4 (1) (763 SE2d 357) (2014) (The jury determines the credibility of the witnesses and,
thus, was authorized to disbelieve the defense offered by the defendant.); Gaskins v.
State, 318 Ga. App. 8, 11 (1) (b) (733 SE2d 338) (2012) (The jury was authorized to
disbelieve the defendant’s explanation for how she obtained the property and to
conclude that she obtained it fraudulently.); see generally Buruca v. State, 278 Ga.
App. 650, 653 (1) (629 SE2d 438) (2006) (The evidence, although circumstantial,
was sufficient for the jury to find that the defendant was the “getaway” driver who
assisted others in committing an armed robbery and, as a result, to convict him as a
party to the crime, noting that the jury “heard and clearly rejected [the defendant’s]
claim that the robbery was a spur of the moment idea of which he had no
knowledge.”) (punctuation omitted).

                                            8
      Consequently, after viewing the evidence in the light most favorable to the

jury’s verdict,12 we conclude that it was sufficient for the jury to find that the

Appellant was guilty beyond a reasonable doubt as a party to the crimes committed

by Ms. Calcaterra.

      Judgment affirmed. Doyle, C. J., and Miller, P. J., concur.




      12
           See Rankin, 278 Ga. at 705.

                                         9
