C.A.A., In Interest of, 76399

• Decision Date: 30 June 1988
• Docket Number: No. 76399,76399
• Citation: 187 Ga.App. 691,371 S.E.2d 247
• Parties: In the Interest of C.A.A.
• Court: Georgia Court of Appeals

Page 247

371 S.E.2d 247

187 Ga.App. 691

In the Interest of C.A.A.

No. 76399.

Court of Appeals of Georgia.

June 30, 1988.

Mary M. Young-Cummings, Albany, for appellant.

Robert H. Revell, Albany, for appellee.

BIRDSONG, Chief Judge.

C.A.A., age 15, was adjudicated delinquent upon a petition alleging a violation of the Georgia Controlled Substances Act by having in his possession "less than an ounce [of marijuana], in his vehicle when the vehicle was searched by police officers." Appellant complains on appeal only on the general grounds, that the finding is contrary to the law and the evidence and not supported by the evidence. Held:

The investigating officer testified he received information from a confidential informant about a gray Pontiac Trans Am, with a certain license plate number, which stopped at Dye's Tavern in Albany. Two white youths and a black youth were in it. The black youth got out, went into the tavern and returned with marijuana. With this information, the officer and his partner drove to Dye's Tavern and saw this very same car pull up to Dye's Tavern again. The officer watched through binoculars. A black male got out and went into the tavern. There was no testimony that he appeared to have anything with him when he came out of the tavern and got in the car. The police officers could not see inside the car. The car's driver got out and looked under the hood as if something was wrong. At this point, the officer drove up behind the Trans Am and he and his partner got out of their car. They identified themselves as police officers and asked the occupants of the Trans Am to get out and, when they did so, patted them down.

The appellant, C.A.A., had been sitting in the backseat directly behind the driver. When the group emerged from the car, the officer asked who owned the car and C.A.A. said he did. When the officer told C.A.A. he had information about some drugs and he wanted to search the car, C.A.A. said, "Fine, go ahead." The officer found, directly under the seat behind the driver's seat, two manila envelopes of what tested to be marijuana.

The officer testified he never ran a license check on C.A.A. to see if he had a driver's license. He testified on cross-examination that C.A.A. did state to him sometime during the conversation that his mother owned the car, but the officer was not sure whether C.A.A. imparted this information before or after they arrived at the police station. In fact, the officer testified he did not know who owned the car. The officer testified that C.A.A. did not act differently than anyone else, that he never saw C.A.A. with the marijuana, and in fact could not see in the car at all. The other three persons in the car, two males and a female, were in fact adults, and the officer indicated on the stand that he did not know at the time that C.A.A. was a juvenile.

We do not find this circumstantial evidence sufficient to authorize a rational trier of fact to find this juvenile himself possessed the marijuana beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. OCGA § 24-4-6; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

The appellant juvenile was in the backseat of a car with three adults. There is no evidence C.A.A. knew the marijuana was in the car. The car was being driven by another adult. It was not proven who owned the car; although the officer testified C.A.A. at first said the car was his, he also testified C.A.A. said the car was his mother's. The officer did not, according to the evidence, see the black male return from the tavern with two manila envelopes; in fact, he could not see inside the car at all and saw C.A.A. engage in no suspicious behavior. In fact, he did not see anyone indulge in suspicious behavior, except that the adult black male went into the tavern and then came out, which was suspicious only because the confidential informer had just told the officer he had seen a gray Trans Am with three persons in it and one, a black male, got out and returned from the tavern with marijuana. The only evidence tying C.A.A. to possession of the marijuana under the seat behind the driver's seat is his presence in the car and his proximity to the seat.

Ordinarily, the factfinder is in the best position to determine questions of reasonableness when evidence of guilt is circumstantial. Harris v. State, 236 Ga. 242, 223 S.E.2d 643; Lewis v. State, 149 Ga.App. 181, 254 S.E.2d 142; Gee v. State, 146 Ga.App. 528, 246 S.E.2d 720; Pless v. State, 142 Ga.App. 594, 236 S.E.2d 842; Townsend v. State, 127 Ga.App. 797, 799, 195 S.E.2d 474. In this case the finder of fact stated that "there is no doubt [C.A.A.] was in his mother's car," and that he was most impressed with this redoubtable fact, since there is "a legal presumption that if you own the car or have possession of the car or the car is in your control, that you are supposed to know what is in it.... And you are responsible for what is in [it]." This is not the law.

In Farmer v. State, 152 Ga.App. 792, 795, 264 S.E.2d 235 (cert. den.), we held, after examining the rule in many cases, " ' "Where immediate and exclusive possession of an automobile, locker room, or other premises is shown, the inference is authorized that the owner of such property is the owner of what is contained therein, and this inference has been referred to as a rebuttable presumption. [Cits.]" However, "(a)s to automobiles, the rule does not apply where there is evidence in the case that the defendant has not been in possession of the vehicle for a period of time prior to the discovery of the contraband or that others have had access to it. [Cit.]" ' (Emphasis supplied.)" Where as here the evidence shows other persons had equal access to the...