McDade v. State

• Decision Date: 05 June 1985
• Docket Number: No. 70083,70083
• Citation: 175 Ga.App. 204,332 S.E.2d 672
• Parties: McDADE et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 672

332 S.E.2d 672

175 Ga.App. 204

McDADE et al. v. The STATE.

No. 70083.

Court of Appeals of Georgia.

June 5, 1985.

Rehearing Denied June 24, 1985.

Certiorari Denied Sept. 3, 1985.

Randall Peek, Steven T. Maples, David R. Rogers, Decatur, for appellants.

E. Byron Smith, Dist. Atty., for appellee.

SOGNIER, Judge.

Jimmy Freeman McDade, Jimmy Kenneth McDade and Mildred R. McDade were convicted of violation of the Georgia Controlled Substances Act by possession with intent to distribute marijuana. Jimmy Freeman McDade was also convicted of possession of a firearm by a convicted felon. As appellants' enumerations of error are identical, they will be considered together.

1. Appellants contend the evidence is insufficient to support their convictions, and that it was error to deny their motions for a directed verdict of acquittal.

The evidence disclosed that on November 21, 1983 appellant called the sheriff's office complaining that a neighbor had fired into appellant's trailer. While investigating the complaint a sheriff's investigator entered appellant's trailer to check for damage and observed a rifle and shotgun in appellant's living room. A few days later the investigator remembered seeing a "rap sheet" on Jimmy Freeman McDade indicating that he was a convicted felon. The investigator verified this information and obtained a certified copy of Jimmy Freeman McDade's conviction of a sexual assault. He obtained a search warrant for appellants' trailer for firearms and ammunition, and when he entered the trailer to execute the warrant observed a rifle on the bar and another rifle in a gun rack. A holstered pistol was laying on a coffee table and a plastic bag containing seeds and green leafy material was on top of the pistol. Another plastic bag containing seeds was on the floor under the table. Continuing the search for firearms and ammunition some draperies or blankets on the living room floor were moved and a number of plastic bags were clearly visible in a hot air heater underneath the blankets. Two more shotguns were found in a bedroom and other green leafy material was found in one of the bedrooms, including "roaches" (partially smoked marijuana cigarettes) in an ashtray. Some scales of a type used to weigh drugs were found, and a police band scanner was in the living room together with a list of radio frequencies for State, local and several county police frequencies. The "green leafy material" was determined to be marijuana.

Appellants first argue that mere presence at the scene of a crime is not sufficient to support a conviction. While we agree with this general rule, it has no application to the instant case, as the trailer searched was the appellants' permanent residence. Appellants' reliance on Russell v. State, 132 Ga.App. 35, 207 S.E.2d 619 (1974) to support their "mere presence" argument is misplaced, as Russell involved guests who were present when marijuana was found, not permanent residents in the trailer.

Appellants also argue that the equal access rule precludes sustaining their conviction because the contraband was found in a common area to which many people had access. This argument is not supported by the transcript, as the evidence shows that appellants were the only occupants of the trailer and had no visitors during a nine-day period after the search warrant was issued and before it was executed. Here the appellants--father, mother and son--resided in the trailer and the bulk of the marijuana was found in a common area, the living room. The equal access rule has no application under the facts of this case where, as here, all persons having access to the contraband are alleged to have been in joint, constructive possession of that contraband. Castillo v. State, 166 Ga.App. 817, 822(2), 305 S.E.2d 629 (1983).

Appellants argue that the evidence as to possession of the marijuana with intent to distribute was circumstantial and did not exclude every reasonable hypothesis save that of appellants' guilt. We do not agree.

The marijuana was in appellants' trailer, they were the only occupants of the trailer and they had no visitors from December 21, 1983 to December 30, 1983 when the marijuana and firearms were found. The marijuana found in the hot air register was contained in eight separate packages and this, together with the scales for weighing drugs, would indicate that the marijuana was to be distributed. No defense evidence was presented, and the question of whether there was a reasonable hypothesis favorable to the appellants was a question for the jury. Jones v. State, 165 Ga.App. 36, 38(1), 299 S.E.2d 576 (1983). We find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and thus, it was not error to deny appellants' motions for directed verdicts of acquittal. Humphrey v. State, 252 Ga. 525, 527(1), 314 S.E.2d 436 (1984) 2. a. Appellants contend the search warrant was void because of "staleness." This enumeration of error is without merit. After observing guns in appellants' trailer on November 21, 1983, the investigator remembered seeing a "rap sheet" on Jimmy Freeman McDade indicating that he was a convicted felon. The investigator spent from December 1 to December 9, 1983 verifying this information, ascertaining that McDade had no permission to possess firearms and obtaining a...