Cleveland v. State, 59954

• Decision Date: 14 July 1980
• Docket Number: No. 59954,59954
• Citation: 270 S.E.2d 687,155 Ga.App. 267
• Parties: CLEVELAND et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 687

270 S.E.2d 687

155 Ga.App. 267

CLEVELAND et al. v. The STATE.

No. 59954.

Court of Appeals of Georgia.

Argued May 13, 1980.

Decided June 20, 1980.

Rehearing Denied July 14, 1980.

Jane Kent-Plaginos, Cumming, for appellants.

Howard T. Oliver, Jr., Sol., for appellee.

QUILLIAN, Presiding Judge.

The defendants, husband and wife, appeal their convictions for violation of the Georgia Controlled Substances Act. Held :

1. (a) Our laws provide for the direction of a verdict of acquittal (Code Ann. § 27-1802; Ga.L. 1971, pp. 460, 461) and where the evidence demands a verdict of acquittal the failure of a trial judge to so direct a verdict is reversible error. Bryan v. State, 137 Ga.App. 169 (2), 223 S.E.2d 219. Appellee's argument to the contrary is predicated on obsolete and superseded authority.

(b) The arresting officers, after observing the house where the defendants, husband and wife, lived, obtained a search warrant for the premises. One of the officers testified that when they knocked on the door and identified themselves as police, he saw the defendant wife run towards the bathroom. The officers kicked down the door and forced their way into the bathroom where they found the defendant wife and an unidentified male. The commode had been flushed but there was a plastic bag containing marijuana and particles of marijuana still floating in the water. The defendant husband was in the living room with two other persons. Insofar as the record reveals, he had no marijuana in his actual possession.

"In the case of a dwelling home, occupied by a single family, the contents therein, including any drugs, may be inferred to have been in the possession of the head of the household." Sisson v. State, 141 Ga.App 559, 560 (3), 234 S.E.2d 146. " 'In this State the husband is recognized by law as the head of his family, and, where he and his wife reside together, the legal presumption is that the house and all the household effects, including any intoxicating liquors, belong to the husband as the head of the family. This presumption of course is rebuttable.' " Barron v. State, 46 Ga.App. 829 (1), 169 S.E. 323. Accord, King v. State, 145 Ga.App. 789 (2), 245 S.E.2d 310. This is true, "even though the wife pays the house rent and supports the husband." Patterson v. State, 8 Ga.App. 454, 69 S.E. 591. Although there having been many changes regarding the husband-wife relationship, Code § 53-501 on which this legal principle is predicated remains unamended and inviolate.

Here, although the defendant wife owned the home, the jury was authorized to infer that the defendant husband, as head of the household, was in constructive possession of the contraband.

The defendant wife was found, along with an unidentified man, in the bathroom where marijuana was being flushed down the toilet. Despite her explanation that the man was in possession of the marijuana, the jury was authorized to determine at least that the two were acting in concert. See Latimer v. State, 134 Ga.App. 372 (2), 214 S.E.2d 390.

It was not error to fail to direct a verdict of acquittal in favor of the defendants. From the evidence adduced at trial a rational trier of fact could have found the defendants guilty beyond a reasonable doubt.

2. A witness for the state, in explaining the circumstances leading to the defendant's arrest, related that prior to obtaining a search warrant for defendant's house he observed the house for "approximately two hours." He then responded to the following question: "What was the activity down there?", by answering: "Several visitors visitors (sic) in and out, these visitors were known as drug users." Counsel for defendants then objected and moved for a mistrial on the grounds that the evidence was prejudicial in that it put the defendants' character in evidence and had no bearing on the offense with which they were charged.

Regardless of whether the testimony be construed as attributing to the defendants' unlawful conduct or merely that they kept "bad company," we find no reversible error.

In this case the state had the burden of establishing the defendants' guilt and overcoming their testimony that they had no knowledge of the presence of marijuana on the premises. The testimony was offered in explanation of the grounds for a search and...