Heaton v. State, 52127
| Decision Date | 28 May 1976 |
| Docket Number | No. 52127,No. 2,52127,2 |
| Citation | 227 S.E.2d 854,139 Ga.App. 83 |
| Parties | R. T. HEATON v. The STATE |
| Court | Georgia Court of Appeals |
Merritt & Pruitt, Glyndon C. Pruitt, Buford, Herbert T. Jenkins, Jr., Snellville, for appellant.
Bryant Huff, Dist. Atty., Richard T. Winegarden, K. Dawson Jackson, Robert A. Barnaby, II, Asst. Dist. Attys., Lawrenceville, for appellee.
Heaton brings this appeal from his conviction for possession of more than one ounce of marijuana in violation of the Georgia Controlled Substances Act. He was sentenced to eight years confinement, with two to be served in close confinement and the remainder on probation. Heaton enumerates as error the denial of his motion for a new trial based upon the general grounds. Held:
Heaton does not deny that a large number of growing marijuana plants were found on a residential lot owned by him, upon which his home was located and in which he and his family alone resided. Additional plants were observed growing in a corn field contiguous to his own land, and in which Heaton had been granted the sole privilege of farming though Heaton did not own this land. Two days after five large marijuana plants were first seen growing in the corn field, the five plants were observed to have been uprooted. On that same day, five mature plants were found 'curing' in the barn owned by Heaton and located on his land. Additional growing plants were found in a small greenhouse located on Heaton's residential lot and in a plantertype box located under a tree also on Heaton's property.
Heaton's assertion is that others, including neighbors, one of whom admitted growing marijuana on the property rented by the neighbot, or motorcycle riders who frequented an easement to the rear of Heaton's property over which power lines were strung, had equal access to the area where the growing marijuana was found. He contends that merely 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 an equal opportunity to commit the crime. Gee v. State, 121 Ga.App. 41, 42, 172 S.E.2d 480. Stated otherwise, Heaton contends the circumstantial evidence does not preclude every reasonable hypothesis except that of his guilt.
The fallacy in the position assumed by Heaton is that the 'equal access rule' requires evidence affirmatively showing that persons other than the defendant had equal access to the premises where the contraband was found. There was speculative evidence that others, by trespassing, might have come onto Heaton's property and cultivated marijuana plants. There was no evidence that others did perform any type of cultivation on Heaton's land or that others frequented Heaton's property. There was evidence that another person had permission to use the greenhouse for growing tomatoes. There was no evidence that this person did in fact use the greenhouse, and the evidence did show there were no tomato plants in the greenhouse when the marijuana plants were found. In short, there was no affirmative evidence adduced that persons other than Heaton had access to and did frequent his property so as to give rise to application of the 'equal access rule.' Compare, Braden v. State, 135 Ga.App. 827(1), 219 S.E.2d 479; Moreland v. State, 133 Ga.App. 723(1), 212 S.E.2d 866.
On the other hand, Heaton denied he had given permission to anyone to use his barn, or more than a limited permission to grow tomatoes in the greenhouse. He...
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Fatora v. State
...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 appli......
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Crafts v. State
...that the marijuana plants were growing on the defendant's exclusively owned and occupied residential lot. Compare Heaton v. State, 139 Ga.App. 83, 227 S.E.2d 854 (1976). There was no showing that the defendant owned and was in exclusive possession of the property on which the marijuana was ......
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Birge v. State
...determine whether he was guilty of possession as a householder. Bass v. State, 140 Ga.App. 788, 232 S.E.2d 98 (1976); Heaton v. State, 139 Ga.App. 83, 227 S.E.2d 854 (1976). There was direct evidence of the appellant's presence at the time the residence was searched, and it was for the jury......
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Rich v. State
...is premised on the evidentiary presumption attributing contraband to the head of the household where it is found. Heaton v. State, 139 Ga.App. 83, 84, 227 S.E.2d 854 (1976); Goode v. State, 130 Ga.App. 791(2), 204 S.E.2d 526 (1974). It is not applicable to growing plants because they, like ......