Blount v. State, s. 72875

Decision Date05 December 1986
Docket NumberNos. 72875,72876,s. 72875
Citation181 Ga.App. 330,352 S.E.2d 220
PartiesBLOUNT v. The STATE (Two Cases).
CourtGeorgia Court of Appeals

George F. Peterman III, Macon, for appellant in No. 72875.

Craig M. Childs, Macon, for appellant in No. 72876 G. Theron Finlayson, Dist. Atty., Edward D. Lukemire, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendants, husband and wife, were accused, via indictment, of possessing marijuana with intent to distribute and trafficking in cocaine. Following a jury trial, defendants were convicted upon each charge. They were sentenced to serve 10 years, 5 in confinement and 5 on probation. Additionally, each defendant was fined $50,000. Defendants moved for a new trial and their motions were overruled by the trial court. Defendant husband appeals in Case No. 72875 and defendant wife appeals in Case No. 72876. Held:

1. Defendants were indicted on February 25, 1985. The indictment charged that on December 17, 1984, defendants unlawfully possessed marijuana with intent to distribute in violation of the Georgia Controlled Substances Act. It also accused defendants of knowingly and actually possessing "more than 28 grams of a mixture containing cocaine."

At the time of the offense and the indictment, OCGA § 16-13-31 read, in pertinent part: "Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in actual possession of 28 grams or more of cocaine or of any mixture containing cocaine, as described in Schedule II, ... commits the felony offense of trafficking in cocaine ..." Thereafter, OCGA § 16-13-31 was repealed. A new OCGA § 16-13-31 was enacted in its place. Effective July 1, 1985, the statute provided: "Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in actual possession of 28 grams or more of cocaine as described in Schedule II ... commits the felony offense of trafficking in cocaine...." Ga.L.1985, pp. 552, 553. Thus, the "mixture" language of the statute was omitted in the 1985 statute.

Defendants were tried in October 1985 after OCGA § 16-13-31 was amended. Relying upon Gunn v. State, 227 Ga. 786, 183 S.E.2d 389, they contend that the legislature put an end to the prosecution for trafficking in cocaine by possessing more than 28 grams of a mixture containing cocaine.

In Robinson v. State, 256 Ga. 564, 565, 350 S.E.2d 464, the Supreme Court considered the effect of the repeal of OCGA § 16-13-31 (after an indictment but prior to trial and conviction) upon a prosecution for trafficking in cocaine by possessing more than 28 grams of a mixture containing cocaine.

It held: "Gunn v. State, supra, is the law in Georgia. When a statute making described conduct a crime is repealed prior to final judgment on a conviction, the repeal ends the prosecution if the legislature has not provided otherwise in [a] saving clause. Here the legislature repealed the old law and enacted in its place a new law without including a saving clause. Thus, the appellant's conduct was no longer defined by the legislature as trafficking in cocaine, therefore, the prosecution in this case was at an end before the trial."

It follows that the prosecution of defendants for trafficking in cocaine by possessing more than 28 grams of a "mixture" containing cocaine was not authorized. The trafficking in cocaine convictions must be reversed. Robinson v. State, supra.

2. Defendants assert the evidence is insufficient to allow a rational jury to find them guilty of the crime of possessing marijuana with intent to distribute. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. We agree that the evidence is not sufficient to enable a rational factfinder to find defendant husband guilty beyond a reasonable doubt. On the other hand, we find the evidence was sufficient to find defendant wife guilty beyond a reasonable doubt.

The evidence adduced at trial demonstrates the following: On December 17, 1984, a search warrant was executed at the home of Gerald and Karen Haynes in Warner Robins. The warrant authorized the search of the Hayneses' premises, including the curtilage. Defendants were visiting the Hayneses on the day the search took place. When the police entered the house, they found defendant wife and Mrs. Haynes sitting on a couch in the living room. Defendant husband was in a bedroom in the rear of the house and Mr. Haynes was in the hallway.

As the search progressed, a large quantity of marijuana was seized in one of the bedrooms. The police searched a pocketbook which they found in the living room. The pocketbook was located about 10 or 12 feet from the couch upon which defendant wife and Mrs. Haynes sat. The officers made no inquiry as to whom the pocketbook belonged before searching it and neither defendant wife nor Mrs. Haynes claimed the pocketbook as her own. The pocketbook contained a small quantity of marijuana, a loaded .38 caliber revolver, a razor blade and a straw. Identification found inside the purse showed that it belonged to defendant wife.

A Cadillac titled in the name of the defendant wife was parked in the Hayneses' driveway. An officer asked who owned the Cadillac and defendant wife responded that she did. The officer obtained the keys to the Cadillac from either the pocketbook or defendant wife and he began to search it. In the trunk of the automobile, the officer found a suitcase which contained a plastic bag holding a large quantity of marijuana. He also found men's and women's clothing, a set of reloading scales, empty ziplock plastic bags and a "fake" oil can. Inside the oil can were six plastic bags filled with cocaine.

The foregoing evidence was presented entirely by the prosecution. Neither defendant husband nor defendant wife took the stand to testify and no evidence was introduced on their behalf.

"[A] person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint." Thomas v. State, 153 Ga.App. 686, 689, 266 S.E.2d 335.

A review of the evidence demonstrates that defendant husband did not have actual possession of contraband. Thus, we must determine whether defendant husband was in constructive possession of the contraband. In making this determination, we must keep in mind the principle that circumstantial evidence must be consistent with the hypothesis of guilt and exclude every other reasonable hypothesis. OCGA § 24-4-6.

With regard to defendant husband, we find the evidence of constructive possession lacking. "It is well established that merely having been in the vicinity of contraband does not, without more, establish possession. [Cits.]" Donaldson v. State, 134 Ga.App. 755, 756, 216 S.E.2d 645. Defendant was not shown to be in the immediate presence of any of the contraband found at the time of the execution of the warrant. His mere presence in the Hayneses' house cannot be said to demonstrate possession of the contraband found in his wife's automobile. Mitchell v. State, 150 Ga.App. 44, 46(2), 256 S.E.2d 652. Compare Clark v. State, 146 Ga.App. 697(1), 247 S.E.2d 221. Likewise, the fact that defendants were husband and wife cannot be said to establish defendant husband's connection to the contraband. See Knighton v. State, 248 Ga. 199, 200(2), 282 S.E.2d 102. That men's clothing was found in the trunk of defendant wife's automobile does not establish possession either. (In this connection, we observe that the prosecution did not demonstrate whether the clothes belonged to, or even fit, defendant husband.) Nor can it be said that the money found on defendant husband's person ($587) demonstrated a connection to the contraband. In sum, defendant was not connected to the contraband discovered in his wife's automobile. Compare Garvey v. State, 176 Ga.App. 268, 274(6), 335 S.E.2d 640. The evidence was sufficient to raise a suspicion of guilt on the part of defendant husband. But the evidence was not sufficient to authorize a jury to convict defendant husband of possession of marijuana with intent to distribute beyond a reasonable doubt. Accordingly, defendant husband's conviction must be reversed.

3. Defendant wife's ownership and control of her automobile gave rise to a presumption, in the absence of contrary evidence, that the marijuana found in the automobile was hers and in her possession. Moore v. State, 155 Ga.App. 149, 150, 270 S.E.2d 339. Evidence of equal access to the marijuana would have been sufficient to overcome the presumption. But evidence of equal access was lacking. In view of defendant wife's ownership of the automobile in which the marijuana was found and the presence of marijuana and drug paraphernalia in her pocketbook, we find that a rational trier of fact could find defendant wife guilty of possessing marijuana with intent to distribute beyond a reasonable doubt. Moore v. State, 155 Ga.App. 149, 150, 270 S.E.2d 339, supra. Defendant wife's contention that the evidence is insufficient to authorize the jury's verdict is without merit.

4. Defendant wife asserts the trial court erred in denying her motion to suppress the evidence found in her pocketbook and automobile. In this regard, defendant wife argues that she was a mere visitor at the Hayneses' residence and that, therefore, neither her pocketbook nor her automobile were properly searched pursuant to the warrant which the police executed. See Hawkins v. State, 165 Ga.App. 278, 300 S.E.2d 224.

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