Kelly Stroud v. State , 812 S.E.2d 309 ( 2018 )

FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, 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
March 1, 2018
In the Court of Appeals of Georgia
A17A1679. STROUD v. THE STATE.
BRANCH, Judge.
Following a jury trial, Kelly Stroud was convicted in Spalding County Superior
Court of a single count each of possession of cocaine, failure to maintain lane, and
driving with a suspended license. Stroud now appeals from the denial of his motion
for a new trial, arguing that the evidence was insufficient to sustain his conviction for
failure to maintain lane. Additionally, Stroud asserts that the trial court erred in
denying his motion to suppress and in refusing to give his requested jury instructions
on equal access and circumstantial evidence. For reasons explained more fully below,
we affirm Stroud’s conviction for driving with a suspended license. We reverse,
however, Stroud’s conviction for failure to maintain lane, finding that the evidence
was insufficient to support that conviction. We further find that in denying Stroud’s
motion to suppress, the trial court failed to determine whether the impoundment of
Stroud’s car was reasonably necessary under the circumstances. Accordingly, we
vacate the order denying the motion to suppress and remand for further proceedings
on the same. Finally, we find that the trial court committed plain error when it failed
to give Stroud’s requested charge on circumstantial evidence and for that reason, we
reverse the trial court’s denial of Stroud’s motion for a new trial on the charge of
possession of cocaine.
“On appeal from a criminal conviction, the defendant is no longer entitled to
a presumption of innocence and we therefore construe the evidence in the light most
favorable to the jury’s guilty verdict.” Marriott v. State, 320 Ga. App. 58, 58 (739
SE2d 68) (2013) (citation omitted). So viewed, the record shows that late on the
evening of March 9, 2009, a patrol officer with the City of Griffin Police Department
observed a car driven by Stroud traveling west on Broad Street. As the officer
watched, the car “made a wide right turn onto 14th Street, heading northbound” and
crossed into “the southbound lane of 14th Street.” The officer conducted a traffic stop
of Stroud based on his alleged failure to maintain his lane. When the officer ran an
identification check on Stroud, he learned that Stroud’s driver’s license had been
suspended. Upon learning of the suspended license, the officer immediately arrested
2
Stroud, handcuffed Stroud’s hands behind his back, and placed Stroud in the back of
the officer’s patrol car. The officer then conducted a search of Stroud’s car and found
a glass pipe of the type used to smoke crack cocaine and two small pieces of an off-
white substance located in between the driver’s seat and the car’s center console.
Subsequent forensic tests showed the off-white substance to be cocaine with a weight
of approximately .06 grams.
Stroud moved to suppress the items seized from his car, arguing that their
discovery resulted from an illegal search. At the hearing on the motion to suppress,
which was held immediately before trial, the arresting officer testified that the search
of Stroud’s vehicle was not performed incident to his arrest, but instead was
performed because police had to impound the car. The officer further explained that
an impound was necessary because Stroud, the car’s sole occupant, lacked a valid
license and therefore could not drive the car. The officer, however, provided no
explanation for why the car had to be removed from the scene immediately — i.e.,
there was no evidence that the car was illegally or dangerously parked or that it was
a hazard to traffic. When questioned about whether Stroud had been given the
opportunity to call someone to retrieve the car from the scene, the officer responded
that he did not speak with Stroud about that possibility, but that a second officer was
3
present and he might have had that discussion with Stroud, but the arresting officer
could not remember.
The arresting officer also testified that he could not remember whether he
searched the car before or after he had called for a tow truck, and he acknowledged
the search might have occurred before he began the impound process. The State
introduced into evidence the inventory sheet made as part of the car’s impoundment,
but neither the cocaine nor the crack pipe were listed on that sheet.1 The arresting
officer indicated that he did not personally fill out the impound inventory sheet, and
the sheet reflects that someone other than the arresting officer signed it on behalf of
the police department. Additionally, the arresting officer could not say at what point
after he seized the contraband the remainder of the car’s contents were inventoried
and the form completed.
Based on this evidence, the trial court denied the motion to suppress, finding
that because Stroud was being arrested, the law required that the car be impounded
and its contents inventoried. Immediately following that ruling, the case proceeded
to trial, at which the arresting officer gave testimony that was substantially similar to
1
The items listed on the inventory sheet were a portable CD player and “12
keys on a keychain.”
4
that given at the motion to suppress hearing, with one exception. At trial, the officer
testified that the second officer at the scene “tried to get someone [to retrieve the car
for Stroud, but] no one was available to get the vehicle [,] [so] we impounded the
vehicle.”2
Stroud testified in his own defense and admitted that he had been driving with
a suspended license. Stroud also claimed that neither the pipe nor the cocaine
belonged to him and that he was unaware those items were in his car. According to
Stroud, because he was currently unemployed, he used his car to give people rides in
exchange for cash. Just before the traffic stop, Stroud had dropped off a passenger,
whom he could identify only as a white female. Based on Stroud’s testimony as well
as the testimony of the arresting officer, who acknowledged that the contraband was
located in an area of the car accessible to passengers, Stroud requested a jury charge
on equal access. Over Stroud’s objection, the trial court declined to give this charge,
finding that it did not apply because there were no other passengers present in
Stroud’s car at the time of the traffic stop.
2
This unidentified second officer did not testify at either the motion to
suppress hearing or at trial.
5
The trial court also declined to give Stroud’s requested jury charge on
circumstantial evidence, which was based on what was then OCGA § 24-4-6. In
explaining this refusal, the trial court stated that the principles contained in the
requested charge would be covered by the court’s standard charge on circumstantial
evidence.
The jury found Stroud guilty on all counts and the trial court sentenced him to
15 years for possession of cocaine and 12 months on each charge of driving with a
suspended license and failure to maintain lane, with all sentences to run
consecutively. Following his conviction Stroud filed a motion for a new trial, which
was denied. This appeal followed.3
3
Stroud was convicted and sentenced in October 2009 and his motion for new
trial was filed that same month. When no trial transcript had been filed after 17
months, Stroud’s attorney filed three separate motions between March 23 and
November 28, 2011, seeking copies of that transcript. Over two years after the new
trial motion was filed, a hearing on that motion was scheduled for December 14,
2011, but was continued until January 30, 2012, based on the lack of the trial
transcript. The trial court denied the motion for a new trial immediately following the
January 30 hearing, and Stroud timely filed his first notice of appeal. This Court
subsequently remanded the case in April 2012 because of the absence of a transcript
from the hearing on the motion for new trial. Following a second hearing, Stroud’s
new trial motion was again denied in November 2012. Stroud’s attorney filed an
untimely notice of appeal in January 2012, and it does not appear that the case was
transmitted to this Court for docketing. In July 2015, Stroud’s new counsel filed a
motion for an out-of-time appeal, which the trial court granted on August 20, 2015.
Stroud filed a second notice of appeal the following day. Approximately two years
6
1. Although Stroud has not challenged his conviction for driving with a
suspended license, we note that the evidence set forth above, including Stroud’s
admission that his license had been suspended, supports his conviction for that crime.
See Wilson v. State, 278 Ga. App. 420, 421 (629 SE2d 110) (2006) (“to establish the
offense of driving with a suspended license, the State must show that the accused was
driving, that his license was suspended, and that the accused had received actual or
legal notice of the suspension”) (punctuation and footnote omitted); OCGA § 40-5-
121 (a). We therefore affirm Stroud’s conviction for driving with a suspended license.
2. Stroud contends that the evidence was insufficient to sustain his conviction
for failure to maintain lane. We agree.
Stroud was charged with a violation of OCGA § 40-6-48, which provides, in
relevant part, that “[w]henever any roadway has been divided into two or more clearly
marked lanes for traffic . . . [a] vehicle shall be driven as nearly as practicable entirely
within a single lane and shall not be moved from such lane until the driver has first
ascertained that such movement can be made with safety.” OCGA § 40-6-48 (1).
later, in May 2017, the Clerk of the Spalding County Superior Court transmitted the
record to this Court, and the current appeal was docketed. We trust that on remand,
the trial court will be cognizant of the more than eight-year delay suffered by Stroud
in having his claims of error heard and will, to the extent possible, expedite further
proceedings in this case.
7
Thus, to convict a defendant of violating this statute, the State must prove that the
road on which the defendant was driving at the time of the alleged violation was, in
fact, “divided into two or more clearly marked lanes for traffic.” See Stewart v. State,
288 Ga. App. 735, 738 (3) (655 SE2d 328) (2007) (punctuation omitted). Here, given
that no evidence was presented to establish that 14th Street was “divided into two or
more clearly marked lanes,” the evidence was insufficient to convict Stroud of failure
to maintain lane. Id.In an effort to avoid this result, the State cites Moore v. State, 234 Ga. App.
332 (506 SE2d 685) (1998), where this Court summarily held that an “arresting
officer’s testimony that he observed [the defendant] weave across the road was
sufficient to sustain the conviction for lane violations under OCGA § 40-6-48.” Id.
at 333 (3) (d). Moore, however, did not address whether the State had proved that the
roadway in question was divided into clearly marked lanes. Accordingly, Moore did
not establish binding precedent with respect to that question. See State v. Outen, 289
Ga. 579, 582 (714 SE2d 581) (2011) (although the question at issue may have been
before the court in previous cases, those cases did not directly address the question
and therefore “no binding precedent was established”) (citation and punctuation
omitted); Abreu v. State, 206 Ga. App. 361, 363 (2) (425 SE2d 331) (1992) (same).
8
See also Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529)
(1960) (“[q]uestions which merely lurk in the record, neither brought to the attention
of the court nor ruled upon, are not to be considered as having been so decided as to
constitute precedents”) (citations and punctuation omitted). This case is instead
controlled by Stewart, which requires that we reverse Stroud’s conviction for failure
to maintain lane.
3. Stroud contends that the trial court erred in denying his motion to suppress
the contraband found in his car because the search of that vehicle violated the Fourth
Amendment.
At a hearing on a motion to suppress, the trial judge sits as the trier of
fact. On appeal from the grant or denial of such a motion, therefore, this
Court must construe the evidence most favorably to uphold the findings
and judgment of the trial court, and that court’s findings as to disputed
facts and credibility must be adopted unless clearly erroneous. However,
we owe no deference to the trial court’s conclusions of law and are
instead free to apply anew the legal principles to the facts.
Watts v. State, 334 Ga. App. 770, 771 (780 SE2d 431) (2015) (citation and
punctuation omitted).
“On a motion to suppress, the State bears the burden of proving that the search
at issue did not violate the Fourth Amendment.” Watts, 334 Ga. App. At 775 (1)
9
(citation omitted). To carry its burden in this case, the State was required to show that
the warrantless search of Stroud’s car was justified. Police officers may conduct a
warrantless search of a vehicle without violating the Fourth Amendment in two
situations. The first is where the search is conducted incident to the arrest of the
driver and/or the car’s occupants. See Grimes v. State, 303 Ga. App. 808, 812 (1) (b)
(695 SE2d 294) (2010). The search-incident-to-arrest exception applies only to those
situations where “the arrestee is unsecured and within reaching distance of the
passenger compartment at the time of the search,” or where “it is reasonable to
believe evidence relevant to the crime of arrest might be found in the vehicle.”
Arizona v. Gant, 556 U. S. 332, 343 (III) (129 SCt 1710, 173 LE2d 485) (2009)
(citation and punctuation omitted). And as a general rule, in cases where “a recent
occupant [of the vehicle] is arrested for a traffic violation, there will be no reasonable
basis to believe the vehicle contains relevant evidence.”4 Id. at 343-344 (III) (citations
omitted) (holding the search of defendant’s car incident to his arrest for driving
without a license violated the Fourth Amendment because “police could not expect
4
The State does not contend that the search in this case falls within the search-
incident-to-arrest exception to the Fourth Amendment. Instead, the State argues that
the search was legal under the impound-inventory exception, discussed infra.
10
to find evidence [related to that crime] in the passenger compartment of [the] car”).
Id. at 344 (III) (citation omitted).
The second situation where police may conduct a warrantless search of a car
arises where the police have impounded the vehicle and, as part of the impoundment
process, they take an inventory of the car’s contents. Grimes, 303 Ga. App. at 812 (1)
(b). Under the impound-inventory exception, where officers have a reasonable basis
for impounding the car, the Fourth Amendment allows
police to conduct a warrantless, non-investigatory search of the vehicle,
pursuant to standard police procedures, to produce an inventory of the
vehicle’s contents to protect the owner’s property, or to protect police
from potential danger or claims for lost or stolen property. Thus,
justification for an inventory search is premised upon the validity of the
impoundment of the vehicle.
Armstrong v. State, 325 Ga. App. 690, 691 (1) (754 SE2d 652) (2014) (citations and
punctuation omitted; emphasis supplied). “Impoundment of a vehicle is valid only if
there is some necessity for the police to take charge of the property,” and police “may
not use an impoundment or inventory as a medium to search for contraband.” Canino
v. State, 314 Ga. App. 633, 639-640 (3) (725 SE2d 782) (2012) (punctuation and
footnote omitted). See also Fortson v. State, 262 Ga. 3, 4 (1) (412 SE2d 833) (1992)
11
(holding that police must have a valid justification for impounding a vehicle, as they
may not use an inventory search as a pretext for an investigatory search). Thus, “to
determine whether an inventory search was authorized, [a court] must first determine
whether the impoundment was reasonably necessary under the circumstances.” Scott
v. State, 316 Ga. App. 341, 343 (729 SE2d 481) (2012). “The test is whether, under
the circumstances, the officer’s conduct in impounding the vehicle was reasonable
within the meaning of the Fourth Amendment.” Humphreys v. State, 287 Ga. 63, 77
(7) (694 SE2d 316) (2010) (citation omitted). See also Scott, 316 Ga. App. at 343
(“[t]he test is whether the impoundment was reasonably necessary under the
circumstances, not whether it was absolutely necessary”) (citation and punctuation
omitted).
Reasonable necessity for impounding a defendant’s vehicle has been found
where the car is an out-of-state rental vehicle, Humphreys, 287 Ga. at 77 (7); the car
cannot be safely or legally driven, id.; see also Davis v. State, 331 Ga. App. 171, 174
(769 SE2d 183) (2015); Ahmad v. State, 312 Ga. App. 703, 706 (1) (719 SE2d 563)
(2011); Bell v. State, 302 Ga. App. 519, 520 (691 SE2d 573) (2010); the car is
illegally or dangerously parked, Davis, 331 Ga. App. at 174; Armstrong, 325 Ga.
App. at 691 (1); or the car is connected to a crime for which the defendant is arrested.
12
Humphreys, 287 Ga. at 77 (7); Grizzle v. State, 310 Ga. App. 577, 579 (1) (713 SE2d
701) (2011). Cf. Canino, 314 Ga. App. at 641 (3) (State failed to establish that
impoundment was reasonably necessary where car was unconnected to defendant’s
arrest for a traffic offense, car was legally parked, and officers “made no effort to
determine whether one of [defendant’s] friends could take possession of the car or
whether [defendant] wanted to make arrangements for alternate disposition”); State
v. Bell, 259 Ga. App. 328, 330 (577 SE2d 39) (2003) (same); State v. Lowe, 224 Ga.
App. 228, 230 (480 SE2d 611) (1997) (same); Strobhert v. State, 165 Ga. App. 515,
515 (301 SE2d 681) (1983) (same, and noting that although defendant ultimately may
have been unable to make alternate arrangements for his vehicle, “the crucial fact .
. . is that the arresting officer made absolutely no effort to explore the possible
alternatives”).
At the conclusion of the motion to suppress hearing, defense counsel moved
for a directed verdict in Stroud’s favor on the ground that the State had failed to carry
its burden to show the search was illegal. The trial court denied both that motion and
the motion to suppress, ruling that because Stroud’s car was being impounded, an
inventory search of the vehicle was legally required. Notably, although the crucial
inquiry on this motion to suppress was whether the impoundment of Stroud’s car was
13
reasonably necessary under the circumstances, the trial court did not address this
question. Given the trial court’s failure to address the question necessary to decide
the motion to suppress, we vacate the denial of that motion and remand for further
proceedings on the same. On remand, the trial court should not only determine
whether the impoundment of Stroud’s car was reasonably necessary under the
circumstances, it should also make any factual and credibility findings necessary to
support its conclusion. See Watts, 334 Ga. App. at 780 (1) (b) (reversing denial of
motion to suppress and remanding for determination of factual questions necessary
to decide that motion).
Additionally, we note that much of the evidence presented at the motion to
suppress hearing — including the testimony of the arresting officer — conflicted with
the same officer’s assertion that the contraband was discovered during an inventory
search of Stroud’s vehicle. Instead, that evidence indicated that the cocaine was
seized during a search of Stroud’s car performed incident to his arrest. On remand,
therefore, the trial court should also make factual and credibility findings to support
its conclusion that the discovery of the contraband occurred during an inventory
search. See Shaw v. State, 324 Ga. App. 670, 671-672 (751 SE2d 478) (2013)
(finding that no evidence supported the conclusion that contraband was discovered
14
during an inventory search, as opposed to a search incident to arrest, where search
was conducted “immediately after” the defendant was arrested and secured and there
was “no evidence” that defendant’s vehicle was parked illegally or hazardously or
that the arresting officer “completed his department’s standard inventory form listing
the items he seized from the vehicle in connection with [its] impoundment”).
4. Stroud’s opening brief asserted that the trial court erred in denying his
requested jury instruction on equal access. In his reply brief, however, Stroud
concedes that the trial court’s refusal to give the equal access charge was appropriate
because the trial court did not instruct the jury on presumption of possession. See
State v. Johnson, 280 Ga. 511, 513 (630 SE2d 377) (2006) (“a charge on equal access
is appropriate to counter a jury instruction on presumption of possession, and is not
necessary otherwise”). Accordingly, Stroud has abandoned this enumeration of error.
5. Stroud filed a written request to charge the jury on the language of what was
then OCGA § 24-4-6, which provides, “[t]o 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
15
accused.”5 The trial court refused to give the requested charge, stating that
circumstantial evidence would be “covered” by the charges the court planned to give.
Although the trial court did charge the jury on circumstantial evidence, that charge
did not encompass the language or principles found in former OCGA § 24-4-6.6 As
he did in his motion for a new trial, Stroud contends on appeal that the trial court’s
refusal to give his requested charge constitutes reversible error. We agree.
Because Stroud failed to object to the jury charge given at trial, we must decide
whether the refusal to give the requested charge constitutes plain error. See State v.
Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011). Under the plain error standard, we
5
This exact language is now codified in Georgia’s current evidence code at
OCGA § 24-14-6.
6
The trial court gave the following charge on circumstantial evidence:
[E]vidence may be either direct or circumstantial or both. Direct
evidence is evidence that points immediately to the question at issue.
Evidence may also be . . . proved by a fact by inference. This is referred
to as circumstantial evidence.
Circumstantial evidence is the proof of facts or circumstances by
direct evidence from which you may infer other related or connected
facts that are reasonable and justified in the light of your experience.
The comparative weight of circumstantial evidence and direct
evidence on any given issue is a question of fact for you, the jury, to
decide.
16
must first determine whether there is an error that has not been affirmatively waived.
Id. at 33 (2) (a). If such an error exists, we must then determine whether that error was
plain and obvious, “whether it likely affected the outcome of the proceedings,” and
whether “the error seriously affect[ed] the fairness, integrity or public reputation of
the proceedings below.” Id. (citations and punctuation omitted).
Here, given that Stroud made a written request for the jury charge at issue, he
has not affirmatively waived any error resulting from the trial court’s refusal to give
that charge. See Durham v. State, 292 Ga. 239, 241 (3) (734 SE2d 377) (2012).
Additionally, in 1994, the Supreme Court of Georgia established a bright-line rule
requiring a trial court to charge the jury on former OCGA § 24-4-6 when the State
introduces both direct and circumstantial evidence against the defendant and the
defendant requests such a charge. Mims v. State, 264 Ga. 271, 272-273 (443 SE2d
845) (1994). See also Davis v. State, 285 Ga. 176, 180 (674 SE2d 879) (2009) (“if the
case relies to any degree upon circumstantial evidence, a charge on [former OCGA
§ 24-4-6] is required upon written request”) (citation, punctuation and emphasis
omitted). Given this well-established law, we must conclude that the trial court’s
refusal to give the requested charge constitutes plain and obvious error. Stanbury v.
State, 299 Ga. 125, 129-130 (2) (786 SE2d 672) (2016) (“[f]or an error to be obvious
17
for purposes of plain error review, it must be plain under controlling precedent or in
view of the unequivocally clear words of a statute or rule”) (citation and punctuation
omitted). See also Durham, 292 Ga. at 241 (3) (trial court’s refusal to give the
requested charge on circumstantial evidence constituted plain and obvious error in
light of well-established precedent).
In determining whether this error likely affected the outcome of the
proceedings, we note that the State’s case against Stroud for possession of cocaine
was entirely circumstantial. Specifically, the evidence of possession consisted of the
circumstance that the contraband was found in Stroud’s car.7 Given that the evidence
against Stroud was not overwhelming and that Stroud offered in his defense what the
jury might have viewed as a reasonable hypothesis supporting his innocence, we find
7
The record shows that a note sent out by the jury during its deliberations
contained a series of questions indicating that jurors had some concern about the lack
of direct evidence against Stroud. The jury asked:
Where exactly in the car was the pipe [and] cocaine found — ‘between
seats’ or ‘between the console [and] driver’s seat? Why was there no
drug test done [on defendant] after drugs were found in car? Why were
fingerprints not taken [from] crack pipe?
18
that this error likely affected the outcome of the proceedings. “Indeed, under all the
circumstances of this case, the trial court adversely affected [Stroud’s] ‘substantial
rights’ by failing to provide the required [circumstantial evidence] charge because the
charges as given failed to provide the jury with the proper guidelines for determining
[Stroud’s] guilt or innocence.” Stanbury, 299 Ga. at 131 (2) (citation, punctuation and
emphasis omitted). See also Davis, 285 Ga. at 180 (2) (trial court’s refusal to give a
requested jury charge on OCGA § 24-4-6 constituted harmful error where the State
relied primarily on circumstantial evidence and the direct evidence against the
defendant was not “overwhelming”); Butler v. State, 298 Ga. App. 129, 130 (1) (679
SE2d 361) (2009) (same).
We also find that the trial court’s refusal to give the requested charge seriously
affected the fairness and integrity of the judicial proceedings below. This conclusion
is based not only on the obvious nature of the error, but also on the fact that the error
both lessened the State’s burden and usurped, to some degree, the function of the jury.
As former OCGA § 24-4-6 reflects, where a case depends to any extent on
circumstantial evidence, the State bears the burden of coming forward with sufficient
evidence to exclude every reasonable hypothesis other than the accused’s guilt. And
whether the State has met this burden is for the jury to determine — i.e., the jury must
19
decide whether there is a reasonable hypothesis that supports the accused’s
innocence. See Julius v. State, 286 Ga. 413, 415 (1) (687 SE2d 828) (2010); Stewart,
288 Ga. App. at 737 (2). Here, however, as the instruction was not given, the jury did
not know that the State was required to exclude every reasonable hypothesis other
than the accused’s guilt and that the jury was required to determine whether such a
hypothesis existed. Accordingly, we find that the trial court’s refusal to give Stroud’s
requested charge on former OCGA § 24-4-6 constitutes plain error. See State v.
Alvarez, 299 Ga. 213, 215 (790 SE2d 66) (2016) (the trial court’s “failure to instruct
the jury that the State had the burden of disproving [defendant’s] justification
defense” likely affected the outcome and fairness of the trial); Stanbury, 299 Ga. at
131 (2) (where only evidence of defendant’s involvement in the crime was
accomplice testimony, trial court’s failure to give an accomplice corroboration
instruction “seriously affected the fairness, integrity, or public reputation of the
[trial],” as the absence of such a charge meant that “an accused would have no way
of knowing whether the jury secured his conviction through permissible means”)
(citation and punctuation omitted). We therefore reverse the denial of Stroud’s motion
for a new trial on the charge of possession of cocaine.
20
For the reasons set forth above, we affirm Stroud’s conviction for driving with
a suspended license and we reverse his conviction for failure to maintain lane.
Additionally, we vacate the order of the trial court denying Stroud’s motion to
suppress and remand for further proceedings on that motion consistent with this
opinion. Finally, we reverse the order of the trial court denying Stroud’s motion for
a new trial on the charge of possession of cocaine.
Judgment affirmed in part, reversed in part, vacated in part, and case
remanded with direction. McFadden, P. J., and Bethel, J., concur.
21