Farmer v. State, 58110

• Decision Date: 25 January 1980
• Docket Number: No. 58110,58110
• Parties: FARMER v. The STATE.
• Court: Georgia Court of Appeals

Page 235

264 S.E.2d 235

152 Ga.App. 792

FARMER v. The STATE.

No. 58110.

Court of Appeals of Georgia.

Argued July 9, 1979.

Decided Sept. 19, 1979.

Rehearing Denied Dec. 18, 1979.

Certiorari Denied Jan. 25, 1980.

Douglas W. McDonald, Cornelia, for appellant.

V. D. Stockton, Dist. Atty., Michael H. Crawford, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Appellant appeals from his conviction for possession of marijuana.

The undisputed testimony of appellant is as follows: While driving around in his father's car in Toccoa one Sunday afternoon, appellant was stopped by one Tony Miller, who was from Anderson, South Carolina and whom appellant had met briefly before. Miller, who apparently was somewhat the worse for drink, asked appellant to drive him around while he looked for two girls he knew from Elbert County. Appellant transferred to Miller's 1968 Pontiac and proceeded to drive around. This was about 4:00 p. m. A few minutes later, Miller spotted his female friends, got out of his car, and "got" with the girls. He told appellant that appellant could drive his car around, whereupon appellant drove off and saw Tony Miller no more. Appellant soon met Roger Pace, and from about 4:30, he and Pace just rode around "like the rest of the people in town, just messing around at the Wigwam and getting something to eat." Appellant was drinking. A while later, appellant and Pace met up with one Tony Westmoreland, and the three rode around in Miller's 1968 Pontiac until about 9:00 p. m., when appellant took Westmoreland to his home. After a brief visit, appellant and Pace left to drop Pace off at his truck at the Dairy Queen. They detoured to stop by appellant's father's house to explain why appellant had not returned his father's car.

While appellant and Pace were on their way to fulfill this mission, the incident giving rise to this case occurred. A police officer drove by and saw the 1968 Pontiac cross the center line. The officer turned around. Meanwhile appellant and Pace stopped briefly at a gas station. The officer met the Pontiac as it came out of the station driveway with its lights out and again followed the car. The officer testified that he saw the passenger, Pace, bend forward over his seat as if to get something or put something under the seat, but at trial, Pace denied having bent over. (Pace was acquitted at the joint trial.) Immediately, the officer switched on his blue lights and appellant stopped at a motel.

The officer walked up to the driver's side of the 1968 Pontiac and, thinking perhaps the passenger had gotten a gun from under the seat, threw his flashlight beam into the car. From where he stood at the car door, the officer saw a white towel bundled up on the passenger's floorboard. Only about two inches of the towel were visible; the rest was covered from view by the seat. A small corner of the towel stuck up facing the officer and the driver's side of the car and, in the opening, the officer saw a green leafy-looking substance in a plastic bag. After having appellant get out of the car to take a balloon test, the officer arrested him for driving under the influence and requested a tag check, which came back indicating that the tag was registered to a woman in South Carolina for a 1966 Chevrolet. During this activity, Pace got out of the car once, then got back in. Finally the officer went to the passenger's side of the car and had Pace get out. He then reached into the car for the bundle, which was actually protruding about four to six inches from under the seat. The officer pulled out the bundle and discovered three bags about ten inches long containing a substance which, eventually, tested positive for marijuana.

There was no other evidence of marijuana use, no smoke, no odor, no marijuana butts or smoking paraphernalia. There was no weapon found on the scene. Appellant and Pace did not attempt to flee, but were polite and cooperative, even helpful. The officer conceded, from what he had observed, that if the white bundle was pushed under the seat it might be difficult or impossible to see from the front seat because of the seat's overhang; and that it was possible that the bundle had slid out when the car was brought to a stop at the motel. Appellant testified that no one had put anything in the car while he was driving it. Tony Miller was not found. Held:

1. For the reasons hereinafter developed, we hold that the trial court's denial of appellant's motion for directed verdict of acquittal at the conclusion of all the evidence was error. It was also error for the trial court to charge as to a presumption of possession of the marijuana based on appellant's operation of the automobile, in the face of the evidence offered by appellant.

The only direct evidence against the appellant in this case is that marijuana was found partially concealed under the passenger's seat in the vehicle which appellant was driving. Appellant gave evidence that the car was not his, that he had been driving the car only five or six hours since its owner had lent it to him, that he never looked under the seat and had not seen the towel or its contents before the officer pulled it out of the car. Likewise, the passenger denied any knowledge of the marijuana. No attempt was made to dispute appellant's testimony. No proof or evidence whatsoever was offered by the state that appellant, or indeed that anyone, owned the car; more to the point, no evidence was offered by the state that appellant had controlled or possessed the car for any substantial period of time before the arrest, to the exclusion of all other persons. As we view the state of the evidence together with the charge of the court, the conviction for possession of marijuana is based solely on the presumption arising out of the fact that Farmer was the operator of a car in which marijuana was found.

The correct rule of constructive possession of contraband found in a vehicle owned or being driven by an accused has been often stated, Davis v. State, 146 Ga.App. 629, 247 S.E.2d 210; Elrod v. State, 128 Ga.App. 250, 251, 196 S.E.2d 360; Shepherd v. State, 77 Ga.App. 857, 858, 50 S.E.2d 111. However, except for Shepherd, supra, its application has not been heretofore reached, since this type of case generally has been decided on the sufficiency of the circumstantial evidence, Elrod, supra, 128 Ga.App. p. 252, 196 S.E.2d 360; Neal v. State, 130 Ga.App. 708, 204 S.E.2d 451; Watson v. State, 93 Ga.App. 368, 369, 91 S.E.2d 832, or on a supervening application of the equal access rule. Davis, supra, 146 Ga.App. p. 630, 247 S.E.2d 210.

We do not state a new rule but specifically apply what has repeatedly been said: " '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...