Gumina v. State, s. 65947

• Decision Date: 11 May 1983
• Docket Number: Nos. 65947,65948,s. 65947
• Parties: GUMINA v. The STATE. SEARS v. The STATE.
• Court: Georgia Court of Appeals

Page 37

305 S.E.2d 37

166 Ga.App. 592

GUMINA v. The STATE.

SEARS v. The STATE.

Nos. 65947, 65948.

Court of Appeals of Georgia.

May 11, 1983.

Linda S. Sheffield, Atlanta, for appellant (Gumina).

William D. Smith, Atlanta, for appellant (Sears).

W. Bryant Huff, Dist. Atty., Genevieve L. Frazier, Asst. Dist. Atty., for appellee.

QUILLIAN, Presiding Judge.

Defendants Antonia Gumina and William Sears appeal their convictions for violation of the Controlled Substances Act by possessing LSD, cocaine and marijuana with intent to distribute. Held:

1. The evidence showed that defendants rented premises from an owner who lived on contiguous property in a house some distance away. The premises rented consisted of a main residence, a smaller house trailer and three cargo trailers, all surrounded by a chain link fence. When the premises were searched pursuant to a search warrant, Sears, Gumina and her three small children, and four other adults were there. LSD, cocaine, marijuana and drug paraphernalia were found in the main residence, most of the drugs in the master bedroom, which was Sears' and Gumina's bedroom. Numerous guns, most of them loaded, were also discovered. A police officer testified that when he showed Gumina a large quantity of marijuana found in her bedroom closet, she took some cocaine from a dresser drawer and told the officer that it was hers. A frisk search of Sears produced a glass vial with cocaine residue. Defendants testified that the other four adults were known to Sears' brother and were permitted to stay on the premises for a few days, which had extended to three weeks at the time of the search. They testified that they let the four visitors sleep in the main residence while they slept in the smaller house trailer. The defendants denied any knowledge of any drugs on the premises and implied that the drugs found there must have been brought there by others. None of the other four adults were apparently available to testify.

Defendants made motions for directed verdicts of acquittal on the grounds that the evidence showed that others had equal access to the premises, denial of which is asserted as error. We find no error.

"Whether the evidence of equal access was sufficient to rebut the presumption of possession arising from the discovery of drugs in the closet in appellant's bedroom [and in other places in his house] was a question properly left to the jury. [Cits.]" Burdett v. State, 159 Ga.App. 394(3), 395, 283 S.E.2d 622.

"The trial court did not err in denying the defendant's motion for directed verdict of acquittal on the grounds that others had equal access to the premises searched and that the circumstantial evidence did not exclude every other reasonable hypothesis save the guilt of the defendant. The totality of the evidence was sufficient to connect the defendant to the possession of the drugs and to overcome his evidence contending he resided ... at another location even though the evidence would have authorized a finding that others had equal access to the drugs. [Cits.] Here the court did charge as to equal access and equal opportunity but the jury, based upon the totality of the evidence, did not believe same but convicted the defendant as charged." Teems v. State, 161 Ga.App. 339(3), 340-1, 287 S.E.2d 774.

Moreover, "[a]s we find the evidence sufficient to authorize a rational jury to find defendants guilty beyond a reasonable doubt, 'it could hardly be found to demand a verdict of acquittal.' Milner v. State, 159 Ga.App. 887(1), 888 (285 S.E.2d 602)." Ramsey v. State, 165 Ga.App. 854(6), 303 S.E.2d 32 (1983).

2. Defendants' allegation that the search warrant was insufficient to describe the premises to be searched, and that the executing officers exceeded the scope of the warrant by searching persons and places not described in the warrant, is not meritorious.

The description given in the warrant was: "The Antonia Gumina residence 6226 Poplar, Buford, Gwinnett County, Ga. This residence is located within the southern boundary of the city limits of Buford, Ga., Gwinnett County. The house is a single family dwelling with brown wooden siding approximately 40 yds. from the front entry gate. Next to the gate is a black mailbox with the numbers, 5225 affixed there to (sic). There are several trailors (sic) located on the property which is surrounded by a six foot chain link fence with barbed wire. There is a white sign on the gate which reads: Keep Gate Closed." The affidavit attached to the warrant contained the same description except the number of the premises is given as 5225 Poplar. One of the officers who conducted the search testified that he had no difficulty in finding the premises described because he knew where it was before he met the affiant to the affidavit. Another had identified the premises from an airplane prior to the search.

When the officers arrived at 5225 Poplar Street in Buford, they found a fenced area secured by a gate. Inside the fence was a larger building which was clearly a residence, and four trailers, one of which...