Holland v. State

• Decision Date: 02 October 1992
• Docket Number: No. A92A1647,A92A1647
• Citation: 205 Ga.App. 695,423 S.E.2d 694
• Parties: HOLLAND v. The STATE.
• Court: Georgia Court of Appeals

Page 694

423 S.E.2d 694

205 Ga.App. 695

HOLLAND v. The STATE.

No. A92A1647.

Court of Appeals of Georgia.

Oct. 2, 1992.

Neil L. Heimanson, Atlanta, for appellant.

Dupont K. Cheney, Dist. Atty., J. Stephen Archer, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Michael Holland and his cousin Mark were jointly indicted for manufacturing marijuana. OCGA § 16-13-30(j)(1). Michael was convicted and challenges the sufficiency of the evidence and the validity of certain jury charges.

1. The evidence proves that Michael manufactured marijuana.

On a tip, sheriff's deputies, GBI agents, and drug task force members found marijuana growing in two wooded patches near Michael's home. It is on seven acres owned by his father which had been used by family as a residence for forty to fifty years.

One patch was located along an old firebreak about 600 yards from the house. A trail or path led from the back of the house to this patch and ended at the last plant. The officers arrested Mark after observing him pull up some marijuana plants from this patch. He stated that he was stealing Michael's plants.

An officer testified that Michael denied any knowledge of this marijuana plant and said that wire cages in his yard were for tomato plants. The officer asked Michael to show him the tomato plants, and Michael led him through a path of dog fennel to them. A trail leading from the tomato plants disclosed the other marijuana patch, with plants growing inside wire cages similar to those in the back yard. It was less than 100 yards from the house.

Twenty-one marijuana plants weighing two pounds ten ounces were seized from the patches. Drying marijuana leaves (less than one ounce) were found in a disabled vehicle parked in the yard.

Michael testified that as he was being arrested, he saw an officer put the wire in the yard and that he had been told this officer was out to get him. He responded to cross-examination about the paths from his yard to the marijuana patches that "[t]here are paths all over that place out there. There's three wheeler paths, there's paths, dog paths. They searched all the paths." When asked whether he believed that someone, such as the officer, would come out to his land and plant the marijuana, he responded that it was possible.

To warrant a conviction on circumstantial evidence alone the proved facts must not only be consistent with guilt but they must exclude every other reasonable hypothesis save that of guilt. Head v. State, 169 Ga.App. 947, 949, 315 S.E.2d 669 (1984). Whether there exist reasonable hypotheses save that of guilt is for the jury, unless the verdict is insupportable as a matter of law. Butler v. State, 150 Ga.App. 751, 753, 258 S.E.2d 691 (1979).

The verdict is not insupportable as a matter of law. "[T]he 'beaten path' doctrine ... allows connection of contraband found in close vicinity to a house so as to authorize rational jurors to conclude beyond reasonable doubt that the primary resident of that house owned or had control over the contraband. [Cits.]" Franklin v. State, 166 Ga.App. 375, 376-377(1), 304 S.E.2d 501 (1983); compare Mitchell v. State, 150 Ga.App. 44, 46(2), 256 S.E.2d 652 (1979). Construed in a light most favorable to the verdict, the evidence as a whole was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt. Jones v. State, 201 Ga.App. 102, 103(2), 410 S.E.2d 199 (1991).

2. There is no merit in the contention that the trial court erred in instructing the jury on parties to a crime, in accordance with OCGA § 16-2-20(a), (b)(1), (3), and (4), and OCGA § 16-2-21.

Given the proximity of the patches to Michael's residence and the paths to them and his control of the premises, and given the fact that Mark knew of one of the marijuana patches and was seen pulling such plants in it, even if resident Michael did not plant or tend the patch, the jury could have found that Michael was at least an indirect party to the act of manufacturing marijuana.

" '(W)here the evidence in a criminal case shows that two or more persons were concerned in the commission of an alleged crime, it is not harmful error for the trial court to charge (as to parties to a crime)....' [Cit.]" Lovell v. State, 189 Ga.App. 311, 312(1), 375 S.E.2d 658 (1988).

3. It was not reversible error to refuse to instruct the jury that a mere suspicion of guilt is not sufficient to authorize a conviction. But it would have been the better practice to grant the request. (See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 18 (1991).) Muckle v. State, 165 Ga.App. 873, 875(1), 303 S.E.2d 54 (1983), upon which appellant relies, states the legal principle contained in the request and cites OCGA §§ 24-4-5 and 24-4-6. The principles in those Code sections were charged, in essence as to the first and verbatim as to the second. The court instructed the jury on the presumption of innocence, the evidentiary burdens placed on the State, the definition of a reasonable doubt, and the requirement that to warrant a conviction on circumstantial evidence the proved facts must exclude every reasonable hypothesis save that of guilt. Thus the quantum of proof necessary was adequately included. See Kendrick v. State, 123 Ga.App. 785, 789(3), 182 S.E.2d 525 (1971).

4. Appellant sought an instruction, which was refused, that "[i]n making a determination of whether any other reasonable hypothesis exists, the defendant's explanation must be taken into consideration insofar as it is consistent with the circumstantial evidence properly admitted. [Cits.]" This principle is stated in Bogan v. State, 158 Ga.App. 1, 2, 279 S.E.2d 229 (1981). In none of the cases appellant cited is this principle of law discussed as a jury charge. This, of course, does not mean that it would not be a proper jury charge in an appropriate case. However, this is not one of them.

Appellant's explanation, to the effect that the police were responsible for the wire cages in his yard and marijuana on his land, was not consistent with the circumstantial evidence properly admitted. That is, it was not "a plausible explanation of the circumstances relied upon by the State...." Elam v. State, 125 Ga.App. 427, 430(2), 187 S.E.2d 920 (1972). Consequently, this charge was not adjusted to the evidence. See Joiner v. State, 163 Ga.App. 521, 523(5), 295 S.E.2d 219 (1982).

The appellant's evidence conflicted with that of the State, and the trial court did charge the jury that it should reconcile conflicting evidence to make all witnesses speak the truth so that perjury would be imputed to none of them, and to accept that evidence most reasonable and credible to them if it is in irreconcilable conflict. See Kendrick, supra.

5. Holland contends that the trial court erred in refusing to give his request to charge that the jury could find him guilty of possession of marijuana as a lesser included offense of manufacture.

We have no record of the charge conference. After charging the jury, the trial court asked if there were any exceptions to the charge. Appellant responded that since the trial court charged the jury that there may or may not be an independent crime of possession of marijuana "that could show motive, bent, scheme, what have you, then they could be authorized to convict him of possession of marijuana, which is a lesser included offense of manufacture."

As authority for his request to charge, and in argument both at trial and on appeal, appellant cites State v. Alvarado, 260 Ga. 563, 397 S.E.2d 550 (1990). In his appellate brief he argues:

"Since the trial court charged the jury that they had heard evidence of an independent crime from that with which the appellant was charged, i.e., possession of marijuana, it was incumbent upon the trial court to charge the jury the lesser included offense of marijuana possession as requested....

"It is clear...