THIRD DIVISION

MILLER, P. J.,

MCFADDEN and MCMILLIAN, 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

November 3, 2016

In the Court of Appeals of Georgia

A16A0882. WOODRUFF v. THE STATE.

MCFADDEN, Judge.

A jury convicted Donald Lee Woodruff of possession of marijuana with intent

to distribute, possession of morphine, and possession of oxycodone. On appeal,

Woodruff arguesthat the trial court erred by failing to require the state to disclose the

identity of a confidential informant, but the confidential informant was a mere tipster,

so the trial court did not err. Woodruff also argues that he is entitled to a new trial

because during deliberations, a juror researched slang terms that Woodruff had used

to refer to narcotics. But the state presented evidence sufficient to overcome the

prejudice caused by any juror misconduct. We therefore affirm. 

1. Facts.

When we review a criminal conviction, 
the evidence must be viewed in the light most favorable to the verdict,

and the defendant no longer enjoys the presumption of innocence;

moreover, an appellate court does not weigh the evidence or determine

witness credibility but only determines whether the evidence is

sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99

SCt 2781, 61 LE2d 560) (1979).

Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013) (citation omitted).

Viewed in thislight, the evidence showed that an agent with the West MetroRegional

Drug Enforcement task force met a confidential informant who told the agent that a

particular person wasselling marijuana from a house in the Villa Rica area. The agent

determined that Woodruff resided in the house. He used the confidential informant

to conduct three controlled buys of marijuana from Woodruff. The agent obtained a

search warrant based on this activity. 

When law enforcement executed the search warrant, they foundmorphine pills,

oxycodone tablets, and 225.2 grams of marijuana in the house. Woodruff told the

officers that everything was his and that he would show the officers where all the

evidence was located so that they would not destroy his house. 

At trial, a drug identification chemist with the Georgia Bureau of Investigation

identified the pills taken fromWoodruff’sresidence as morphine and oxycodone. An

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officer who participated in the arrest identified marijuana taken from Woodruff’s

house. 

2. Identity of confidential informant.

Woodruff argues that the trial court erred by refusing to require the state to

reveal the identity of the confidential informant. We disagree. The state was not

required to disclose the informant’s identity because

the confidential informant’s sole involvement in the case was providing

information to the police officer and making controlled drug buys from

[Woodruff]. The police officer then relied upon those controlled drug

buys to obtain a search warrant for [Woodruff’s] residence. The [s]tate

did not indict [Woodruff] for the multiple sales of [drugs] to the

informant. Rather, the [s]tate indicted [Woodruff] for [possession of

morphine, possession of oxycodone, and] possession of marijuana with

the intent to distribute based on the drugs found during the execution of

the search warrant. The confidential informant was not present during

the execution of the search warrant and was not a witness to the offenses

that form the basis of the instant prosecution. Consequently, the trial

court was authorized to conclude that the informant was a mere tipster

whose identity was absolutely privileged. Therefore, the trial court

correctly denied [Woodruff’s] motion to reveal the confidential

informant’s identity.

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Reid v. State, 321 Ga. App. 653, 656 (2) (742 SE2d 166) (2013). “Because the

confidential informant appears to be a mere tipster who had neither seen nor

participated in the events, disclosure was not required.” Villegas v. State, 273 Ga.

824, 825 (3) (546 SE2d 504) (2001) (citation omitted).

3. Juror misconduct.

Woodruff argues that he is entitled to a new trial because of juror misconduct.

We find that the trial court did not abuse his discretion in denying the motion for new

trial on this ground. See Gaines v. State, 274 Ga. App. 575 (618 SE2d 197) (2005)

(“[M]otions for new trial because of improper conduct of jurors are addressed to the

sound discretion of the trial judge.”) (citation and punctuation omitted). 

At trial, the state played Woodruff’s recorded statement in which he said that

everything illegal in the house was his, describing the contraband as pills and weed.

When the officer interviewing Woodruff asked him how much he sold the pills for,

Woodruff answered that it depended on the pill. He explained, “Roxy thirties go for

twenty-two, Roxy fifteens go for twelve, Lorcets go for five, the tens go for five, the

seven-fifties go for four, the fives go for three, the footballs go for two, number five

Xanax go for $1, green [unintelligble] bars go for five, regular white bars go for

four.” 

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After the trial, while defense counsel was packing his bags in the hallway

outside the courtroom, he spoke with a juror who told him that some of the slang

terms Woodruff had used in his statement were confusing. She said that one of the

jurors had used a cell phone to look up the meaning of the slang terms to determine

whether they matched the names of the narcotics listed in the indictment, in spite of

the trial court’s repeated instructions to the jurors not to research the case. The state

does not dispute that misconduct occurred, but presented the affidavits of all 12 jurors

that the misconduct did not affect the verdict.

In a direct appeal of a criminal conviction, “[t]here is a presumption of

prejudice to the defendant when an irregularity in the conduct of a juror is shown and

the burden is on the prosecution to prove beyond a reasonable doubt that no harm has

occurred.” Simmons v. State, 291 Ga. 705, 707 (4) (733 SE2d 280) (2012) (citation

omitted). See also Greer v. Thompson, 281 Ga. 419, 421 (637 SE2d 698) (2006). The

state must overcome this presumption beyond a reasonable doubt, and we must

determine whether the juror misconduct “is so inherently prejudicial as to require a

new trial, or whether it is an immaterial irregularity without opportunity for

injustice.” Simmons, 291 Ga. at 707 (4) (citation omitted).

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We find that the state met its burden here. Notably, Woodruff admitted that all

contraband found at his house was his. A chemist identified pills taken from the

house as morphine and oxycodone, the narcotics Woodruff was convicted of

possessing. In hisstatement, Woodruff used the slang terms to generally describe his

drug-selling practices; he did not use the slang termsto identify the drugsseized from

his house. Further, the state presented affidavits from every juror, who testified that

the misconduct did not affect the verdict. Cf. Chambers v. State, 321 Ga. App. 512,

519-520 (1) (739 SE2d 513) (2013) (physical precedent only) (state did not overcome

presumption of prejudice, in part because, although eleven jurorstestified by affidavit

that they had not relied upon extra-judicial information to reach verdict, nothing in

the record allowed for such a finding for twelfth juror).

“[W]here the substance of the [juror misconduct] is established without

contradiction, the facts themselves may establish the lack of prejudice or harm to the

defendant.” Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997) (citation

omitted). Under the circumstances of this case, “we are satisfied that the juror’s

actions, while improper, were not so prejudicial as to have contributed to the

conviction, and were harmless beyond a reasonable doubt.” Id. (citation omitted).

Judgment affirmed. Miller, P. J., and McMillian, J., concur.

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