Torres v. State

Gonzalo Torres was convicted by a jury of trafficking in methamphetamine, possession of methamphetamine with intent to distribute, escape, hindering a law enforcement officer, possession of Alprazolam and possession of marijuana. He appeals following the denial of his motion for new trial, arguing in his two enumerations of error on appeal that the trial court erred in charging the jury. 1. Torres first contends that the trial court erred by refusing to give his charge on mere presence, arguing that the trial court was required to give his requested charge because this was his sole defense. But “the rule that mere presence at the scene of a crime is insufficient to convict is actually a corollary to the requirement that the State prove each element of the offense charged.” Parker v. State , 270 Ga. 256, 258 2 507 SE2d 744 1998. Here, as in Parker, “the trial court correctly instructed the jury on the duty of the State to prove each element of the crime beyond a reasonable doubt and instructed the jury fully on the law of circumstantial evidence.” Id. Under such circumstances, there was no error in the refusal to give Torres’s requested charge. See id. See also Hulsey v. State , 284 Ga. App. 461, 462 2 643 SE2d 888 2007. This is true even where the defendant asserts that “mere presence” was his sole defense. Russell v. State , 289 Ga. App. 789, 791-792 2 658 SE2d 400 2008. Smith v. State , 296 Ga. App. 160, 162 2 674 SE2d 42 2009.

Moreover, as the State points out, at the time police encountered Torres, he was in a hotel room alone, he admitted he was smoking marijuana, police found a marijuana “blunt” burning in the ashtray, two pills subsequently identified as Alprazolam were in plain view on a night stand and a palm print found on a tupperware container with 312.36 of a mixture of methamphetamine inside was a 100 percent match to Torres’s palm print. And the jury was also entitled to consider that Torres attempted to flee from police. Thus, the State showed more than Torres’s mere presence in the room where the contraband was found. This enumeration is thus without merit.