Fatora v. State

• Decision Date: 05 November 1987
• Docket Number: Nos. 75000,s. 75000
• Citation: 185 Ga.App. 15,363 S.E.2d 566
• Parties: FATORA v. The STATE. to 75002.
• Court: Georgia Court of Appeals

Page 566

363 S.E.2d 566

185 Ga.App. 15

FATORA v. The STATE.

Nos. 75000 to 75002.

Court of Appeals of Georgia.

Nov. 5, 1987.

Rehearing Denied Nov. 20, 1987.

Certiorari Denied Jan. 14, 1988.

John A. Nuckolls, Atlanta, for appellant.

Michael Crawford, Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant was indicted for manufacturing marijuana. The evidence adduced at trial, construed most favorably to support the jury's verdict, was as follows: Defendant and his wife reside on an eight and one-half acre parcel of real property in Towns County, Georgia, "[n]ear the community of Young Harris, about a mile from the city limits." Defendant and his wife have owned this property for "[a]bout 14 years...."

During the morning of August 9, 1984, a Georgia Bureau of Investigation (GBI) "task force" was conducting an aerial observation of the Towns County, Georgia area when they sighted marijuana growing in "a heavily wooded area ..." on defendant's property. The aerial observers directed several ground-based law enforcement officers to the marijuana and they discovered three separate concealed gardens consisting of 215 healthy marijuana plants which varied in height from six to fifteen feet. Two of the gardens comprised 30 fully mature marijuana plants and the third garden comprised 185 marijuana plants which were not as mature as the plants found in the smaller gardens. The plants of the larger garden appeared to be "the second crop that year, the second planting." A fourth area, which also appeared to be a small concealed garden, was discovered on defendant's property; however, all that remained of this garden were "little sink holes that looked like some kind of plant had been pulled out of the ground."

A closer inspection of the marijuana found growing on defendant's property revealed that the gardens had been cultivated so as to produce a "higher quality marijuana" known as "sensemelia." All of the marijuana gardens were well attended and one of the smaller marijuana gardens was found within 20 yards of a "barn" or "shed" where defendant had stored lawn and garden equipment. Although none of the marijuana gardens were visible from defendant's house or from the road leading to defendant's house, all of the marijuana gardens were easily accessible from the road leading to defendant's house and all of the marijuana gardens were connected by "path[s]" or "trail[s]."

Later in the afternoon on August 9, 1984, Agent Mike Roberts of the Georgia Bureau of Investigation met defendant at his home, advised him of his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, rights and questioned defendant regarding the marijuana found growing on his property. Defendant denied knowledge of the marijuana and suggested that students of a nearby college, who defendant said had visited his property frequently, may have planted the marijuana. Agent Roberts then requested defendant to submit to a polygraph examination and defendant consented.

On September 4, 1984, defendant signed a stipulation to the effect that the results of his polygraph test would be admissible in evidence at trial. He then submitted to the polygraph examination and the results showed that defendant "was being deceptive ..." as to his lack of knowledge of the marijuana found growing on his property. Two days after the polygraph examination, defendant was arrested and charged with violating Georgia's Controlled Substances Act.

From the evidence described above, and from other evidence adduced at trial, defendant was found guilty of manufacturing marijuana. After the denial of his motion for new trial, defendant filed a notice of appeal and two identical documents entitled, "NOTICE OF APPEAL FROM ORDER TERMINATING APPEAL BOND." As a result, the appeal from defendant's conviction was docketed in this court as Case Number 75000 and separate appeals were docketed from defendant's other filings as Case Numbers 75001 and 75002.

We have examined the records with regard to Case Numbers 75001 and 75002 and find that the issues raised therein were addressed by this court in an order entered on April 29, 1987, in Case Numbers 73771 and 74190. Consequently, since there remain no unresolved issues in these appeals, Case Numbers 75001 and 75002 are hereby dismissed. We now consider Case Number 75000. Held:

1. Defendant contends in his first enumeration of error that the trial court erred in failing to grant his motion for a directed verdict of acquittal because the evidence was insufficient to connect him to the marijuana found growing on his property.

" 'A connection can be made between a defendant and contraband found in his presence by evidence which shows that the contraband was discovered on premises occupied and controlled by the defendant with no right of equal access and control in others. Mitchell v. State, 150 Ga.App. 44, 46-47 (256 SE2d 652). Such occupation and control may be inferred when the accused is the owner or tenant of the premises upon which the illicit drugs are discovered. See Mason v. State, 146 Ga.App. 557(4) (247 SE2d 118).' Morris v. State, 161 Ga.App. 141, 143 (288 SE2d 102) (1982)." Shreve v. State, 172 Ga.App. 190, 191, 322 S.E.2d 362. In the case sub judice, the evidence showing that two "crops" of mature marijuana were being cultivated on property where defendant and his wife alone reside was sufficient to sustain the rebuttable presumption that defendant was the owner of the marijuana. Hendrixson v. State, 167 Ga.App. 517, 519(5), 306 S.E.2d 350. Considering this presumption in light of other evidence showing the size of defendant's property, the number of marijuana gardens found on defendant's property, the proximity of the marijuana gardens from defendant's house and from the road leading to defendant's house and the results of defendant's polygraph examination, we find that it is not a reasonable hypothesis that defendant was completely unaware of the marijuana being manufactured on his property. See OCGA § 24-4-6; Goode v. State, 130 Ga.App. 791(2), 204 S.E.2d 526; Quarles v. State, 142 Ga.App. 394(2), 236 S.E.2d 139; Rothfuss v. State, 160 Ga.App 863, 865(2), 288 S.E.2d 579; and Meeks v. State, 178 Ga.App. 9, 13(4), 341 S.E.2d 880. Compare Ivey v. State, 226 Ga. 821(4), 177 S.E.2d 702; Prescott v. State, 164 Ga.App. 671, 673(2), 297 S.E.2d 362; Shockley v. State, 166 Ga.App. 182, 303 S.E.2d 519 and Shreve v. State, 172 Ga.App. 190, 322 S.E.2d 362, supra. See Smith v. State, 245 Ga. 205(2), 207, 264 S.E.2d 15, where the Supreme Court held "that the testimony that appellant lied during his polygraph test [was] sufficient independent evidence to corroborate the accomplice's testimony as to appellant's involvement in the crime."

Defendant attempts to shift ownership of the marijuana from himself by asserting the "equal access" rule. In this regard, defendant testified at trial that he had not been in the area where the marijuana was found "that year" and that "hunters" and "young people [came] in and out of [the area] frequently."

Although defendant's testimony supports a conclusion that others may have trespassed upon his property and planted the marijuana, there was no evidence that others did perform any type of cultivation on defendant's land. Further, " '(w)hile this "equal access" rule may be applicable with reference to the loose, portable quantities of contraband found inside the house, it is not properly applicable to the marijuana plants growing outside, which require a period of months to grow, mature, and be harvested.' Goode v. State, 130 Ga.App. 791(2) (204 SE2d 526). See also Heaton v. State, 139 Ga.App. 83, 84 (227 SE2d 854)." Hendrixson v. State, 167 Ga.App. 517, 519(4), 306 S.E.2d 350, supra. Consequently, since the equal access rule is not applicable in the case sub judice, we find that there was sufficient evidence presented from which a rational trier of fact could find defendant guilty beyond a reasonable doubt of the crime, manufacturing marijuana. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560); Hendrixson v. State, 167 Ga.App. 517, 519(4), 306 S.E.2d 350, supra.

2. In his second enumeration of error, defendant argues for the first time on appeal that the stipulation he executed, permitting the results of his polygraph test into evidence, is "defective" and will not support a basis for the admission of the results of his polygraph test at trial because it was executed "prior to the filing of [criminal] charges against [him] ..." and because he was "unrepresented at the time he signed the stipulation...." See State v. Craft, 99 Wis.2d 128, 298 N.W.2d 530.

" '(O)ne is limited in his appeal to grounds of objection which he properly presented to the trial court; he cannot make them for the first time on appeal. Abrams v. State, 223 Ga. 216(9) (154 SE2d 443).' H.W. Ivey Construction Co. v. Transamerica Ins. Co., 119 Ga.App. 794, 795(2) (168 S.E.2d 855). Grounds which may be considered on appeal are limited to those which were urged before the trial court. Kitchens v. State, 228 Ga. 624(1) (187 SE2d 268); Newberry v. State, 126 Ga.App. 81, 82 (189 SE2d 891)." Harrison v. Lawhorne, 130 Ga.App. 314, 318(5), 203 S.E.2d 292. Consequently, the issues raised in this enumeration of error will not be considered by this court. Morris v. State, 179 Ga.App. 228, 229(3), 345 S.E.2d 686.

3. Next, defendant contends the trial court erred in failing to grant his motion to suppress the results of his polygraph examination because he did not "knowingly, intelligently or willfully consent or agree to the admission of the test results as evidence as required by Georgia law." Defendant argues that he did not "freely" and "voluntarily" submit to the polygraph examination because he thought it was a condition of his employment.

The evidence at the motion to suppress hearing showed that before submitting to the polygraph examination defendant was fully advised of his right to an...