                              FIRST DIVISION
                                DOYLE, C. J.,
                         PHIPPS, P. J., and BOGGS, 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/


                                                                       July 7, 2015




In the Court of Appeals of Georgia
 A15A0488. MORALES v. THE STATE.

      PHIPPS, Presiding Judge.

      Ricardo Morales was found guilty of trafficking methamphetamine, possession

of methamphetamine with intent to distribute, possession of methamphetamine,

possession of marijuana with intent to distribute, and possession of marijuana (more

than one ounce),1 in connection with drugs found in a residence he had been visiting.

Morales appeals following the denial of his motion for new trial, contending that the

      1
         The indictment included the following charges against Morales: Count 1 -
trafficking methamphetamine, by possessing more than 28 grams of a mixture
containing methamphetamine (OCGA § 16-13-31 (e)); Count 2 - possession of
methamphetamine with intent to distribute (OCGA §§ 16-13-30 (b); 16-13-26 (3));
Count 3 - possession of methamphetamine (OCGA § 16-13-30 (a)); Count 4 -
possession of marijuana with intent to distribute (OCGA § 16-13-30 (j)); and Count
5 - possession of marijuana, more than one ounce (OCGA §§ 16-13-30 (a), (j) (1); 16-
13-2 (b)). At sentencing, Counts 1 and 3 merged with Count 2, and Count 5 merged
with Count 4. Thus, Morales was sentenced on only Counts 2 and 4.
evidence was insufficient to sustain his convictions, and that he received ineffective

assistance of counsel. Because the evidence was not sufficient, we reverse the

convictions.

      1. Morales asserts that the evidence was insufficient because the state failed to

prove that he possessed any of the drugs. We agree.

               On appeal from a criminal conviction, the evidence must be
      viewed in the light most favorable to support the verdict, and the
      defendant no longer enjoys a presumption of innocence. We determine
      only whether the evidence authorized the jury to find the defendant
      guilty beyond a reasonable doubt, and in doing so we neither weigh that
      evidence nor judge the credibility of the witnesses.2


      So viewed, the trial evidence showed the following. Law enforcement officers

testified that in January 2009, they were conducting a surveillance of two residences

on a particular street. James Senft and Cynthia Smith lived in one of the residences

(hereafter the Senft residence),3 and Morales lived in the other residence, which was

across the street. After seeing a black truck for which they had been on the lookout


      2
       Castillo v. State, 288 Ga. App. 828 (655 SE2d 695) (2007) (citations and
punctuation omitted).
      3
      Senft and Smith were indicted along with Morales on the drug charges.
Morales and Senft were tried together; Smith pled guilty prior to trial.

                                          2
arrive at and leave the Senft residence, officers initiated a stop of that vehicle, then

searched the driver, M. T. The search revealed methamphetamine, and the driver was

arrested.

      On February 26, 2009, officers resumed their surveillance and conducted a

controlled drug purchase at the Senft residence. One of the officers then applied for

and obtained a “no-knock” warrant to search that residence.

      Meanwhile, officers who had continued the surveillance saw two men arrive

at the Senft residence in separate vehicles; one of the men, Morales, was in a silver

or gold sport utility vehicle, and the other man, Senft, was in a white truck. Morales

and Senft entered the residence and, from what the officers were able to observe from

their vantage point down the street, walked down a hallway toward the rear of the

Senft residence. “[A] little while” later, a third man, Jerry Craig Bradshaw, arrived,

entered the residence and walked toward the rear of the residence. “[W]ithin a few

minutes” - without knocking or announcing “police”- officers threw a “flashbang”

device into the Senft residence as “a distraction,” and entered the front room. The

officers detained Senft and Smith, the only (non-law enforcement) individuals in the

residence. Morales and Bradshaw had fled through a back door of the residence “as



                                           3
the flashbang was going off.” Officers chased and apprehended Bradshaw as he fled,

but they were unable to apprehend Morales that night.

      Officers searched a bedroom at the rear of the Senft residence. The bedroom

was “full of junk,” and “[j]ust cluttered with everything.” Officers found in the

bedroom a Ziploc bag containing 15.68 ounces of marijuana; the bag was on a

bedspread or pillow on the floor. About one foot away from the bag of marijuana was

a Ziploc bag containing 108.17 grams of methamphetamine; that bag was also on the

floor of the bedroom, beside “a blanket or something that was all jumbled up,” under

a chair. Scales, baggies, and drug paraphernalia were found in the living room. The

officers searched the home’s three occupants, and found $2,927 cash on Senft’s

person, $700 cash on Smith’s person, and $1,616 cash on Bradshaw’s person.

      Testifying on behalf of the state, Smith stated that on the date of the search,

Morales and Senft had entered the Senft residence and walked to a bedroom in the

back of the house, while she was in the front room of the residence. Bradshaw had

also gone to that bedroom. Smith testified that she had not seen what the three men

were doing in the bedroom, and that the bedroom door was closed; that the officers

had entered the residence a few minutes after the three men entered, while she was



                                         4
in another bedroom; and she believed that Morales and Bradshaw had exited through

the back door of the residence.

      In order to prove the drug charges brought against Morales, the state was

required to prove that he had possessed the methamphetamine and marijuana (in the

required amounts, as specified in the indictment).4 Where, as here, the state provided

no direct evidence that Morales had actual possession of the drugs, the state was

required to prove that he had constructive possession thereof.5

              To prove constructive possession, the state is required to show
      that although not in actual possession, the defendant knowingly had both
      the power and the intention at a given time to exercise control over the
      drugs. Evidence merely showing that contraband was found in a
      residence occupied by the defendant is not sufficient to support a
      conviction, especially where other persons had equal access to the
      contraband and therefore an equal opportunity to commit the offense.6


“Mere spatial proximity to contraband is not sufficient to prove constructive

possession. Rather, the [s]tate must show that [Morales] had the power and intent to

      4
          See n. 1, supra; see also OCGA §§16-13-30 (a) (b) (j) (2009); 16-13-31 (e)
(2009).
      5
          See Johnson v. State, 282 Ga. App. 52, 54 (1) (637 SE2d 775) (2006).
      6
      Id. (footnotes omitted); see Vines v. State, 296 Ga. App. 543, 545 (1) (675
SE2d 260) (2009).

                                          5
exercise control over the drugs, which requires evidence of some meaningful

connection between the defendant and the drugs.”7

      Morales did not own or lease the Senft residence, and had merely been a visitor

there. Consequently, there is no presumption that he possessed the drugs found in the

Senft residence.8

      Although Morales was in the Senft residence just before the officers conducted

the search, he had arrived only minutes earlier; and there was no evidence that he had

possessed the drugs while there, or had carried the drugs into the residence.

Additionally, there was no evidence that the officers found anything in the residence

“that linked [Morales] to the residence such as clothing, bills, fingerprints, financial

statements, photographs, records, books, or other personal belongings.”9 Nor was

there evidence that the officers found drugs, cash or other evidence on Morales’s




      7
       Scott v. State, 326 Ga. App. 115, 117 (1) (756 SE2d 220) (2014) (citation and
punctuation omitted).
      8
       Cf. Bailey v. State, 294 Ga. App. 437, 439-440 (1) (669 SE2d 453) (2008)
(where evidence shows that a defendant owned or controlled premises where
contraband was found, it gives rise to a rebuttable presumption that the defendant
possessed the contraband).
      9
          Brown v. State, 285 Ga. App. 330, 332 (646 SE2d 273) (2007).

                                           6
person linking him to the contents of the Senft residence.10 Indeed, several other

people were present at the residence when the drugs were discovered, such that other

persons had equal (or greater) access to the contraband and equal (or greater)

opportunity to commit the crimes.11 There was no evidence that the marijuana and

methamphetamine found in Ziploc bags (one bag was on top of a bedspread or pillow

on the floor, and the other was “beside a blanket or something that was all jumbled

up,” under a chair on the floor in the cluttered bedroom), would have been plainly

visible to Morales, or that Morales had the power and intention to exercise control

over the drugs while he was in the bedroom.

      That Morales fled when officers - who had not identified themselves as police

officers - entered without knocking and threw a “flashbang” device into the Senft

residence, was not sufficient evidence to support the guilty verdict, as it is well

established that neither presence at the scene nor flight, nor both together, without

more, is conclusive evidence of guilt.12




      10
           See id.
      11
           See Johnson, supra.
      12
           Id.

                                           7
      Finally, Morales’s convictions cannot be upheld on the ground that he was a

party to the crimes, because the state failed to present evidence that he intentionally

caused another to commit the crimes, aided or abetted in the commission of the

crimes, or advised or encouraged another to commit the crimes.13 There was no

evidence that Morales had participated in the criminal activity that had occurred on

the property.14 Consequently, the state’s evidence did not show essential links

between Morales’s conduct and the drug possession, trafficking and intent to

distribute charges.15 Therefore, his convictions must be reversed.16


      13
           See Scott, supra.
      14
           See id.; Crenshaw v. State, 183 Ga. App. 527, 529 (1) (359 SE2d 419)
(1987).
      15
         See, e.g., Flores v. State, 308 Ga. App. 368, 373 (4) (707 SE2d 578) (2011)
(defendant’s mere presence in vehicle, which he did not own or control and in which
methamphetamine was found, was insufficient to sustain his conviction for trafficking
methamphetamine; the state had failed to present evidence of some meaningful
connection between the defendant and the drugs); Brown, supra at 332-333 (even
though defendant had arranged a drug deal for a confidential informant, defendant’s
presence outside the residence was insufficient to sustain his conviction for
trafficking cocaine where no evidence linked the defendant to the property or to the
drugs found inside); Stringer v. State, 275 Ga. App. 519, 521-522 (621 SE2d 761)
(2005) (reversing conviction for possession of cocaine where no evidence linked
defendant to cocaine found in hotel room other than fact that the defendant was in the
room and it was registered in his name). Compare Lott v. State, 303 Ga. App. 775,
779 (1) (694 SE2d 698) (2010) (evidence supported possession for trafficking
conviction even though the two defendants did not own or rent the house where the

                                          8
      2. In light of our holding in Division 1, it is unnecessary to address Morales’s

claim that he received ineffective assistance of trial counsel.

      Judgment reversed. Doyle, C. J., and Boggs, J., concur.




drugs were found, because there was evidence that: the defendants were in the house
when it was searched; they had keys to the house, they were depicted in photographs
that appeared to have been taken inside the house; one defendant ran toward the
bedroom where the drugs were found; officers executing the search warrant found the
defendants’ personal items inside the residence; an individual arrested for selling
drugs told officers he had bought the drugs at that house from a man known as
“Boogie”; and when an officer called out that name, one of the defendants answered).
      16
           See Scott, supra at 119 (1).

                                          9
