Burdett v. State

• Decision Date: 09 July 1981
• Docket Number: No. 61763,61763
• Citation: 159 Ga.App. 394,283 S.E.2d 622
• Parties: BURDETT v. The STATE.
• Court: Georgia Court of Appeals

Page 622

283 S.E.2d 622

159 Ga.App. 394

BURDETT v. The STATE.

No. 61763.

Court of Appeals of Georgia.

July 9, 1981.

Rehearing Denied July 23 1981.

Certiorari Denied Sept. 8, 1981.

Paul S. Weiner, Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., Michael Anderson, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant appeals from his conviction of four counts of violating the Georgia Controlled Substances Act.

1. Appellant urges that it was error to fail to charge that mere presence at the scene of a crime is insufficient to establish guilt. Appellant neither requested such a charge nor objected to the failure to give it. The trial court did charge on the principles of law applicable to the crimes appellant was charged with committing and he fully instructed the jury as to the state's burden of proof in such cases. There was no error. Darden v. State, 171 Ga. 848, 862(4), 157 S.E. 48 (1930).

2. Appellant enumerates error in the giving of the following charge: "[W]here contraband is found in someone's residence, dwelling, or house, the presumption is that such contraband was possessed by the head of the household; but this presumption may be rebutted." Appellant essentially urges that this charge is impermissibly burden-shifting within the meaning of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

" 'The value of [inferences and presumptions], and their validity under the Due Process Clause, vary from case to case ... depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder's freedom to assess the evidence independently.' [Cit.] ... [T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' [Cits.] Therefore, the presumption ... might be constitutionally valid or invalid depending on the instructions given to the jurors by the court. If the presumption ... could be interpreted by the jury under the court's instructions as a burden shifting presumption or as a conclusive presumption, either interpretation would deprive the defendant of his right to have the state prove every element of the crime with which he is charged beyond a reasonable doubt. Under those circumstances, the instructions would render the presumption unconstitutional. [Cit.] On the other hand, if the instructions made clear to the jury that the presumption ... was permissive only, and that the duty still devolved upon the state to prove every element of the crime charged beyond a reasonable doubt, the presumption ... would be constitutionally permissible. [Cit.]" State of Ga. v. Hudson, 247 Ga. 36, 38, 273 S.E.2d 616 (1981). Applying this standard in the instant case, the presumption in question is a "rational" one, it being more likely than not that the head of the household possesses items found in his house. Cf. Cleveland v. State, 155 Ga.App. 267(1b), 270 S.E.2d 687 (1980); King v. State, 145 Ga.App. 789, 245 S.E.2d 310 (1978). And, in addition, the jury in the instant case was instructed that the presumption could be rebutted. See Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979). Moreover, the trial court charged on the following principles: the presumption of innocence; the state's burden of proof; reasonable doubt; credibility of witnesses; circumstantial evidence; actual and constructive possession; that no conviction would be authorized if, without appellant's knowledge and consent, the contraband was placed in his home by another; that "regardless of any presumption the Court has given you in charge, the burden of proof rests upon the State to prove the guilt of the Defendant beyond a reasonable doubt and that the Defendant has no burden of proof in this case"; and that, as to each count, if there was a reasonable doubt as to guilt it was the duty of the jury to acquit. Under these circumstances there is no merit in appellant's attack upon the charge as given. See Bridges v. State, 246 Ga. 323, 324(3), 271 S.E.2d 471 (1980); Lackey v. State, 246 Ga. 331, 337(11), 271 S.E.2d 478 (1980). Nor do we deem valid appellant's assertion that the charge was not authorized under the evidence, there being no question that appellant and his wife resided together on the premises where the contraband was found. McTier v. State, 153 Ga.App. 551, 553(3), 265 S.E.2d 876 (1980). Compare Jewell v. State, 142 Ga.App. 169, 235 S.E.2d 637 (1977).

3. Appellant enumerates as error the giving of the following charge: "[W]here one owns or is the lessee of the house or premises, a presumption exists that he is in possession of the entire premises and all of the property thereon or therein; however, this is a rebuttable presumption and may be overcome by proof that others had access to the premises." Insofar as the attack on this charge is predicated upon a Sandstrom burden-shifting argument, Division 2 of this opinion, supra, controls adversely to appellant's contention. Insofar as appellant's attack is based upon the assertion that the evidence did not...