Cochran v. State

• Decision Date: 08 March 1989
• Docket Number: 77508,77507,Nos. 77506,s. 77506
• Citation: 190 Ga.App. 884,380 S.E.2d 319
• Parties: COCHRAN v. The STATE. PASSMORE v. The STATE. BALLARD v. The STATE.
• Court: Georgia Court of Appeals

Page 319

380 S.E.2d 319

190 Ga.App. 884

COCHRAN v. The STATE.

PASSMORE v. The STATE.

BALLARD v. The STATE.

Nos. 77506, 77507, 77508.

Court of Appeals of Georgia.

March 8, 1989.

Rehearing Denied March 23, 1989.

Larry B. Mims, Tifton, for appellant (case no. 77506).

Lee W. Fitzpatrick for appellant (case no. 77507).

Buckley & Buckley, Richard R. Buckley, Jr., for appellant (case no. 77508).

David E. Perry, Dist. Atty., Ronald M. Adams, Asst. Dist. Atty., for appellee.

CARLEY, Chief Judge.

Appellants appeal from their convictions for trafficking in cocaine.

1. Appellants Passmore and Ballard enumerate the general grounds. Appellant Cochran does not. The evidence adduced at trial showed that a state patrol officer stopped a vehicle for speeding. Appellant Passmore, the driver of the vehicle, produced a valid driver's license and a car registration form which indicated that the vehicle was registered to Melvin Jennings of Florida. Appellant Passmore told the officer that Jennings was a relative of appellant Cochran and he also stated that he was going to Woodbury, Georgia. The officer then questioned appellant Cochran, who was seated in the front passenger seat. Appellant Cochran told the officer the car had been borrowed so that they could attend a funeral in Camilla, Georgia. Appellant Ballard and another man were in the back seat of the car. According to the officer, one of them remarked that they were going to Valdosta while the other commented that he did not know where they were going. However, the officer did not know which man had made what statement.

Based on the discrepancies in the stated destinations, the officer requested and received permission from appellant Passmore to search the vehicle. The ensuing search disclosed no luggage in the cab or trunk, but $2,200 in cash was found in the glove compartment. When the officer could not find the latch to the hood of the vehicle, he asked for help and was aided by appellant Cochran in getting the hood open. Behind the left headlight, the officer found approximately three pounds of cocaine with a purity of 98 percent. All the occupants of the vehicle were placed under arrest.

This evidence is insufficient to authorize a finding of appellant Ballard's guilt beyond a reasonable doubt. As to him, there was not sufficient evidence of such inculpatory conduct before, during or after the offense as would authorize a finding that he was anything other than a mere passenger in the vehicle. See generally Oldwine v. State, 184 Ga.App. 173(1), 360 S.E.2d 915 (1987). Compare Robinson v. State, 175 Ga.App. 769, 772(3), 334 S.E.2d 358 (1985).

The evidence is, however, sufficient to authorize a finding that appellants Passmore and Cochran were in joint actual possession of the cocaine. See Lockwood v. State, 257 Ga. 796, 364 S.E.2d 574 (1988). "[A]ctual and constructive possession ' "often so shade into one another that it is difficult to say where one ends and the other begins." ' [Cits.]" Dalton v. State, 249 Ga. 720, 721(2), 292 S.E.2d 834 (1982). "The 'actual possession' required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the possession of such substances so as to be a party to the crime of trafficking." Barrett v. State, 183 Ga.App. 729, 736(2), 360 S.E.2d 400 (1987). Appellant Passmore was the driver of the automobile in which the contraband and $2,200 in cash were found. Appellant Cochran was the person to whom possession and control of that vehicle had been entrusted by the owner.

The "equal access" principle does not mandate the reversal of appellant Passmore's conviction. There was no affirmative evidence that anyone other than appellants Passmore and Cochran had an equal opportunity to commit the crime. See generally Prescott v. State, 164 Ga.App. 671, 672(1), 297 S.E.2d 362 (1982). " '[M]erely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. [Cits.]' [Cit.].... 'To make an affirmative showing of equal access, it is not enough to show that others might have had equal access but it must affirmatively appear that others did have equal access. It is not necessary that the [S]tate remove every possibility of defendant's innocence [cit.], but only that the evidence be sufficient to convince the rational trier of fact of the defendant's guilt beyond a reasonable doubt. [Cit.]' [Cit.]" (Emphasis in original.) Burrell v. State, 171 Ga.App. 648, 650(6), 320 S.E.2d 810 (1984). There is only mere speculation that others may have had equal access to the area under the hood of the car. Although the car was not owned by appellant Cochran, the jury would be authorized to find that the owner would not have loaned his vehicle knowing that his three pounds of cocaine and $2,200 in cash were located therein. The jury would also be authorized to find, as a rational trior of fact, that no one other than appellant Passmore, as the driver, and appellant Cochran, as the custodian, had equal access to the relatively inaccessible area under the hood of the car. Compare Shreve v. State, 172 Ga.App. 190, 322 S.E.2d 362 (1984). Any speculation that the area under the hood was easily accessible to others is negated by the evidence that the officer himself had difficulty in opening the hood and required the assistance of appellant Cochran to do so. "Whether the evidence of equal access is sufficient to rebut any inference of possession ... is a question properly left to the jury. [Cit.]" Ramsay v. State, 175 Ga.App. 97, 99(7), 332 S.E.2d 390 (1985). There being no unrebutted affirmative evidence demanding a finding of equal access, a rational trior of fact was authorized to find appellant Passmore guilty beyond a reasonable doubt of jointly trafficking in cocaine with appellant Cochran. See generally Robinson v. State, supra 175 Ga.App. at 771(2), 334 S.E.2d 358.

2. Appellant Passmore enumerates as error the denial of his motion for a continuance in order to give his counsel more time to prepare for trial. We find no abuse of discretion in the denial of the motion. See generally Burnett v. State, 240 Ga. 681, 683(1), 242 S.E.2d 79 (1978).

3. Appellant Passmore enumerates as error the denial of his motion to sever his trial from the trial of appellant Cochran. We find no reversible error in the denial of the motion. See generally Murphy v. State, 246 Ga. 626, 629(2), 273 S.E.2d 2 (1980).

4. Although appellant Passmore enumerates as error the admission of certain evidence which he contends was allegedly seized as the result of an illegal search, the record shows that he filed no timely written pre-trial motion to suppress that evidence. Accordingly, this enumeration is without merit. See generally Turner v. State, 170 Ga.App. 355, 317 S.E.2d 631 (1984).

5. In the remaining enumerations, appellants Passmore and Cochran urge that the trial court's charge was erroneous in several respects. "It is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required. [Cit.] While the specific portion[s] of the charge of which complaint is made, when torn asunder and considered as a disjointed fragment, may be objectionable, when put together and considered as a whole, the charge is perfectly sound. [Cits.] We find no harmful error in the charge." Clark v. State, 153 Ga.App. 829, 831(2), 266 S.E.2d 577 (1980).

Judgments affirmed in Case Nos. 77506 and 77507. Judgment reversed in Case No. 77508.

DEEN, McMURRAY and BANKE, P.JJ., and BIRDSONG, POPE, BENHAM and BEASLEY, JJ., concur.

SOGNIER, J., concurs in part and dissents in part.

SOGNIER, Judge, dissenting in part.

At the time the arrests were made and the indictments handed down in these appeals, the case law in this state had construed the applicable statute to authorize convictions for trafficking in cocaine based on the accused's constructive possession of the contraband. See, e.g., Blaise v. State, 185 Ga.App. 653, 654, 365 S.E.2d 499 (1988); Clark v. State, 184 Ga.App. 380, 382(1), 361 S.E.2d 682 (1987). That case law was overruled in Lockwood v. State, 257 Ga. 796, 798, 364 S.E.2d 574 (1988) which mandated a strict application of the statutory requirement of actual possession of the contraband to support a trafficking conviction. " 'A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.' " Id. at 797, 364 S.E.2d 574. It is to be noted that the legislature amended OCGA § 16-13-31(a) to delete the requirement of "actual" possession effective 52 days after Lockwood was decided. That amendment, however, is not...