THOMPSON, Presiding Justice.
Appellant Dominic Trent Stacey was convicted and sentenced for malice murder, theft by receiving, possession of cocaine, and other crimes following the shooting death of Andrew Gibby.
On the evening of November 13, 2006, Stacey and his roommate, Joseph DeDeaux, attempted to hijack a car. Their target was Andrew Gibby, a local drug dealer who drove an Oldsmobile Cutlass with white, 22-inch, rims. DeDeaux arranged to buy marijuana from Gibby in a grocery store parking lot near Stacey and DeDeaux's apartment. Gibby arrived in his Oldsmobile with a friend, Daniel Smith; Stacey and DeDeaux approached the car wearing hooded sweatshirts. During the drug transaction, Stacey pulled a gun and opened fire on Gibby and Smith. Gibby died from five shots to the head, neck, and torso; Smith was injured by a shot to his shoulder. Gibby's car accelerated forward and crashed while Stacey and DeDeaux fled the scene on foot.
Officers executed a no-knock search warrant on the evening of November 14, 2006, and arrested Stacey and DeDeaux in their residence. The officers discovered the stolen nine-millimeter Ruger pistol that Stacey used to shoot Gibby and Smith, an accompanying magazine for the pistol, crack cocaine, and other drug paraphernalia in Stacey and DeDeaux's shared bedroom. The gun was reported stolen several weeks prior to the murder. The officers found the gun under DeDeaux's mattress and the magazine was next to Stacey's mattress. Stacey was laying on his mattress. The cocaine was "directly off the edge of [Stacey's] mattress ... within less than a foot of his body." Stacey admitted to the shooting in his police interview, but asserted self-defense.
1. Stacey concedes the evidence was sufficient to sustain his convictions for murder, assault, and possession of a firearm, and this Court agrees. At issue is Stacey's contention that the evidence was insufficient to sustain his convictions for theft by receiving or possession of cocaine. To evaluate this evidence, we must review it in a light most favorable to the verdict and defer to the fact finder's assessment of its weight and credibility. Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Viewed in this manner, we find the evidence was (a) sufficient to sustain Stacey's conviction for possession of cocaine, but (b) insufficient to sustain his conviction for theft by receiving.
(a) Although police observed Stacey lying on his mattress with the crack cocaine in reach, a finding of constructive possession must be based upon some connection between defendant and the contraband other than mere spatial proximity. Brown v. State, 244 Ga.App. 440, 442(2), 535 S.E.2d 785 (2000). Stacey lived with DeDeaux in the bedroom where the cocaine was found, creating a rebuttable presumption that they had joint possession of the drugs. See Fyfe v. State, 305 Ga.App. 322, 699 S.E.2d 546 (2010) (living in a residence where drugs are found creates a rebuttable presumption of possession); see also Marshall v. State, 273 Ga.App. 17, 19(2)(a), 614 S.E.2d 169 (2005). Stacey did not rebut that presumption at trial.
On the contrary, Stacey admitted he was aware that DeDeaux sold drugs and witnesses testified to Stacey's drug use. Moreover, the gun Stacey used in the drug-related murder of Gibby and other drug paraphernalia were found near the cocaine in Stacey and DeDeaux's room. See Moody v. State, 232 Ga.App. 499, 502 S.E.2d 323 (1998) (circumstantial evidence of constructive possession of drugs included presence of a pistol in plain view). Viewing the evidence in the light most favorable to the verdict, we conclude the evidence was sufficient to prove Stacey possessed the cocaine.
(b) A person commits theft by receiving when he receives, disposes of, or retains stolen property which he knows or should know is stolen. OCGA § 16-8-7. "`[B]ecause of its very nature, this crime is one that is usually proved in whole or in part by circumstantial evidence.'" Martin v. State, 300 Ga.App. 39, 40, 684 S.E.2d 111 (2009). Stacey admitted he shot Gibby and Smith with the Ruger pistol in question, which was reported stolen several weeks prior to the murder. At issue is whether Stacey knew or should have known the gun was stolen when he received and used it. Knowledge that property is stolen "`may be inferred from circumstances, when the circumstances would excite suspicion in the minds of ordinarily prudent persons.'" Id.
2. Stacey contends the trial court erred in giving and failing to give certain instructions to the jury, including a charge on impeachment. However, Stacey made no requests to charge, and raised no objections, at the charge conference. Failure to object to a jury charge precludes appellate review unless the charge constitutes plain error. OCGA § 17-8-58.
This Court employs a four prong test to determine whether plain error occurred: (1) there must be a legal error that is not affirmatively waived; (2) the error must be clear or obvious; (3) the error must affect the outcome of the trial court proceeding; and (4) the error must "seriously affect[] the fairness, integrity or public reputation of a judicial proceeding." (Punctuation omitted.) State v. Kelly, 290 Ga. 29, 32-33, 718 S.E.2d 232 (2011).
None of the jury charges at issue were plain error because they did not constitute clear or obvious error and they did not affect the outcome of the trial. As for the trial court's charge on impeachment, we note that an "unauthorized charge on an unavailable method of impeachment is generally harmless error" and a conviction "will not be reversed when it is highly probable that an erroneous jury instruction did not contribute to the verdict." Francis v. State, 266 Ga. 69, 72, 463 S.E.2d 859 (1995) (quoting Hill v. State, 155 Ga.App. 718, 719(1), 272 S.E.2d 508 (1980)).
3. Stacey contends the trial court erred in rejecting his Batson claim alleging discriminatory use of peremptory strikes to exclude prospective jurors. See generally Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). A Batson claim requires three steps: "(1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent." Thomas v. State, 274 Ga. 156, 161, 549 S.E.2d 359 (2001); Stokes v. State, 289 Ga. 702, 704, fn. 2, 715 S.E.2d 81 (2011). The first step is not particularly onerous; it requires only evidence sufficient for the trial judge to draw an inference of discrimination. Pierce v. State, 286 Ga. 194, 199, 686 S.E.2d 656 (2009). Here, the State used nine of its ten peremptory strikes against non-white prospective jurors
(a) "[T]o carry the burden of production at step two, the proponent of the strike need not offer an explanation that is `concrete,' `tangible,' or `specific.' The explanation need not even be `case-related.' The explanation for the strike only needs to be facially race-neutral." Toomer v. State, 292 Ga. 49, 54, 734 S.E.2d 333 (2012). Explanations are race-neutral when based on personal experience of the venireman in question rather than a "characteristic or stereotype peculiar to any race." Thomas v. State, supra, 274 Ga. at 161, 549 S.E.2d 359. Seven of the potential jurors had personal experiences which the prosecutor believed would render them unsuitable. Juror Pringle worked for a group home with teenage boys close in age to the defendant; juror Tate was a social worker; juror Johnson had multiple conflicts with the criminal justice system; juror Sesay was a cab driver who was overly cautious about crime and may have blamed the victim, a
(b) "[B]oth the United States Supreme Court and this Court have squarely held that a peremptory strike based upon a juror's demeanor during voir dire may be race-neutral at Batson step two." Toomer v. State, supra, 292 Ga. at 54, 734 S.E.2d 333. The prosecutor based two peremptory strikes upon the potential jurors' demeanors. Juror Waddy exhibited defensive body language and facial expressions toward the State. See Arrington v. State, 286 Ga. 335, 340, 687 S.E.2d 438 (2009) (body language and facial expressions constitute race-neutral explanations for a peremptory strike). Juror Ross was very defensive and "almost hostile" with the prosecutors. See Duffie v. State, 301 Ga.App. 607, 611, 688 S.E.2d 389 (2009) ("It is well established that perceived hostility toward the State and, conversely, perceived favoritism toward the defendant, constitute race-neutral reasons for striking a prospective juror").
Given the State's explanations, we agree with the trial court that the State provided sufficient race-neutral explanations for its use of peremptory strikes.
4. Stacey contends the State improperly questioned a police officer about Stacey's credibility and improperly cross-examined him by asking inappropriate questions. However, as he conceded in his brief, Stacey's trial counsel did not object to these questions at trial.
Georgia "has long followed the contemporaneous objection rule, which provides that counsel must make a proper objection on the record at the earliest possible time to preserve for review the point of error." State v. Larocque, 268 Ga. 352, 353, 489 S.E.2d 806 (1997). Because contemporaneous objections were not raised below, these grounds present nothing for our review. Stacey's description of the State's conduct as "improper" is irrelevant. We have long held that the "contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct." Spencer v. State, 260 Ga. 640(9), 398 S.E.2d 179 (1990); see also Watson v. State, 278 Ga. 763, 775, 604 S.E.2d 804 (2004).
5. Stacey next argues that he received ineffective assistance of counsel because his trial lawyer failed to object to the State's questions discussed in Division 4, supra. However, Stacey's first appellate counsel did not raise these issues at the motion for new trial or prior to the docketing of this appeal in this Court. Cf., Lewis v. State, 291 Ga. 273, 731 S.E.2d 51 (2012). Claims of ineffective assistance of trial counsel must be raised before appeal if possible. Id. at 281, 731 S.E.2d 51. A motion for new trial represents such an opportunity and "failure to seize that opportunity is a procedural bar to raising the issue at a later time." Id. Although Stacey's second appellate counsel now attempts to raise these claims on appeal, "[o]nce a claim is procedurally barred, there is nothing for this Court to review. To hold otherwise would eviscerate the rule requiring that ineffectiveness claims be raised at the earliest practicable moment." Wilson v. State, 286 Ga. 141, 144, 686 S.E.2d 104 (2009). It follows that Stacey's claims of ineffective assistance of counsel are procedurally barred and cannot be properly considered by this Court.
At the Jackson-Denno hearing, the trial court viewed videotape of the police interview and heard testimony from Stacey and the police officers present at the interview. The officers took multiple steps to ensure Stacey was aware of his rights during the interview. Stacey was given a form stating his Miranda rights, he read the rights back to the officers and signed his initials on the form. While reading his Miranda rights, Stacey asked, "So I can have an attorney?" The officers interpreted this inquiry as a question regarding Stacey's rights rather than a request for an attorney at that time. One of the officers then read the waiver of rights section of the form and Stacey signed the waiver. The interview continued without an attorney present.
A defendant must make a request for counsel "sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350 (129 L.Ed.2d 362) (1994). Reviewing the transcript of the hearing and the videotape of the interview, we agree with the trial court that the remark at issue was not a clear request for an attorney to be present and that Stacey sufficiently understood his rights.
Judgment affirmed in part and reversed in part.
All the Justices concur.