Castleberry v. State, 58221

• Decision Date: 13 December 1979
• Docket Number: No. 58221,58221
• Citation: 152 Ga.App. 769,264 S.E.2d 239
• Parties: CASTLEBERRY v. The STATE.
• Court: Georgia Court of Appeals

Page 239

264 S.E.2d 239

152 Ga.App. 769

CASTLEBERRY v. The STATE.

No. 58221.

Court of Appeals of Georgia.

Submitted July 12, 1979.

Decided Nov. 19, 1979.

Rehearing Denied Dec. 13, 1979.

Ken Gordon, Hogansville, for appellant.

H. Lamar Cole, Dist. Atty., Dwight H. May, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant Castleberry and a co-defendant, who is not involved in this appeal, were indicted and convicted of possession of more than one ounce of marijuana, a violation of the Georgia Controlled Substances Act. Defendant Castleberry was sentenced to serve a term of three years, and he appeals. Held :

1. The trial court did not err in denying defendant's motion to suppress the evidence inasmuch as the information supplied to the magistrate contained information as to the reliability of the informant, described the criminal activity so as to be more than a casual rumor circulating in the underworld, and same was not stale. See Bell v. State, 128 Ga.App. 426, 427, 196 S.E.2d 894; State v. Babb, 134 Ga.App. 302, 304(1), 214 S.E.2d 397; Pritchett v. State, 134 Ga.App. 254(1), 214 S.E.2d 180; Connell v. State, 131 Ga.App. 213(1), 205 S.E.2d 513; Parker v. State, 142 Ga.App. 195, 235 S.E.2d 585.

2. "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." Code § 38-109. In the case sub judice, the issue involved is whether the evidence was sufficient to exclude every other reasonable hypothesis save that defendant Castleberry was in possession of the marijuana in question. The state's evidence was that the residence in which defendant Castleberry lived with the co-defendant contained drug paraphernalia, drug residue and literature regarding the indoor cultivation of marijuana. In addition, a quantity (more than an ounce) of marijuana was found in the attic, accessible through a trap door from a common area (the bathroom) of the residence. Living potted plants of marijuana were also found located some distance from the residence structure behind a garage and on the opposite side of a fence. Marijuana seeds were found in a cue (pool and billiard) carrying case located in defendant's bedroom. Defendant admitted that this cue case was his property. Although the evidence showed that both the co-defendant and Castleberry lived on the premises, only Castleberry and his girl friend were there at the time of the search, and they were upstairs. Castleberry testified that he was living in the building on the date of the search and had lived there for a total of two months. He lived downstairs and the bathroom was upstairs. Castleberry had a key to the upstairs and was in the process of moving from the downstairs to the upstairs. He admitted that he lived in both areas of the dwelling. He also admitted that he and co-defendant were the only residents of the dwelling at the time of the search. The above evidence is distinguishable from the facts shown in the cases of Blankenship v. State, 135 Ga.App. 482, 218 S.E.2d 157 and Granger v. State, 142 Ga.App. 612, 614(1), 236 S.E.2d 762. Rather the case sub judice is more similar to that of Tamez v. State, 148 Ga.App. 307, 308(1), 251 S.E.2d 159 which holds that the evidence was sufficient to support the verdict. It is not necessary that the state remove every possibility of the defendant's innocence. The mere possibility that someone other than the defendant (note: The other resident was also indicted.) committed the crime charged in the indictment is not such a reasonable hypothesis as must be excluded in order for circumstantial evidence to authorize a conviction of the defendant. See Eason v. State, 217 Ga. 831(2, 3, 4, 5), 839-842, 125 S.E.2d 488; Pinson v. State, 235 Ga. 188, 189, 219 S.E.2d 125. Further, the testimony shows the defendant admitted ownership of the cue stick case in which less than an ounce of marijuana was found, and the other evidence was sufficient to authorize his conviction of possessing more than one ounce. See Harris v. State, 234 Ga. 871, 873, 218 S.E.2d 583; Harris v. State, 236 Ga. 766, 767, 225 S.E.2d 263; Moore v. State, 240 Ga. 807, 811(II, 1), 243 S.E.2d 1.

After a careful review of the trial transcript and record we are convinced, and we so hold, that a rational trier of fact (the jury in this case) could readily have found defendant guilty beyond a reasonable doubt of violation of the Georgia Controlled Substances Act (unlawful possession of more than one ounce of marijuana). The trial court did not err in denying defendant's motion for...