Mobley v. State
Decision Date | 24 February 1989 |
Docket Number | No. 77853,77853 |
Citation | 380 S.E.2d 290,190 Ga.App. 771 |
Parties | MOBLEY v. The STATE. |
Court | Georgia Court of Appeals |
Richard D. Phillips, Ludowici, for appellant.
Glenn Thomas, Jr., Dist. Atty., Richard H. Taylor, John B. Johnson III, Asst. Dist. Attys., for appellee.
Appellant was tried before a jury and convicted of possession of marijuana and possession of a firearm by a convicted felon. He appeals from the judgments of conviction and sentences entered on the jury's guilty verdicts.
1. The evidence adduced at trial showed that appellant resided in a house that he shared only with his wife and their small child. Acting pursuant to a search warrant, police officers discovered marijuana in various locations throughout appellant's house. Five bags were found in a hutch in the dining room. In the bedroom, another bag and a bottle containing marijuana were found. In addition, three bottles of marijuana seeds were found in the refrigerator and another bottle of seeds was discovered in the bedroom. Two of the four bottles of seeds bore a label with appellant's name. The officers also found rolling paper, a cigarette rolling machine and a guide for growing marijuana. Under the mattress in the bedroom, four handguns were found, including a loaded .38 caliber pistol.
On this evidence, appellant, who was previously convicted of selling marijuana in 1976, enumerates as error the denial of his motion for a directed verdict of acquittal. He relies upon Smith v. State, 180 Ga.App. 657, 350 S.E.2d 302 (1986). In Smith v. State, supra at 658, 350 S.E.2d 302, this court held that
In Knighton v. State, 248 Ga. 199, 200(2), 282 S.E.2d 102 (1981), the Supreme Court held (Emphasis supplied.) It is clear, however, that the holding in Knighton is not so broad as to render unconstitutional any and all rebuttable presumptions regarding the possession of contraband. (Emphasis supplied.) Knighton v. State, supra 248 Ga. at 200(2), 282 S.E.2d 102, fn. 1. Thus, notwithstanding the unconstitutionality of a rebuttable presumption of possession as against a husband, there is a viable rebuttable presumption of possession, without regard to gender or marital status, as against the owner or lessee of the premises where the contraband is found. It follows that, insofar as Smith v. State, supra 180 Ga.App. at 657, 350 S.E.2d 302, holds that "ownership of the premises does not raise a presumption that the owner possessed all property contained therein[,]" it is in conflict with controlling Supreme Court authority and, accordingly, that decision is hereby overruled. (Emphasis supplied.)
Although the evidence in the present case does show that appellant is a husband, it also shows he is the owner or lessee of the premises where the drugs and the firearms were found. Based upon this evidence, the jury was accordingly "permitted, but not required, to presume that [he was] in possession of the entire premises and all the property thereon or therein[,]" including the drugs and firearms. Knighton v. State, supra 248 Ga. at 200(2), fn. 1, 282 S.E.2d 102. Appellant's wife was the only other adult who was shown to have access to the premises. It is clear, however, that the evidence that appellant's wife had access to the premises does not demand a finding that the presumption as against appellant had been rebutted. The presumption as against the owner or lessee is only rebutted by evidence that (Emphasis in original.) Allums v. State, 161 Ga.App. 842, 845, 288 S.E.2d 783 (1982). Since appellant's wife was a member of appellant's immediate household, it follows that evidence of her access would not be sufficient to rebut, as a matter of law, the initial presumption which arose against appellant and that such evidence would not demand appellant's acquittal under the "equal access" rule. Instead, the totality of the evidence was such as to be inculpatory of appellant's wife without being exculpatory of appellant because the jury was authorized to find that they had shared non-exclusive and joint possession of the drugs and the firearms was authorized. See generally Luke v. State, 178 Ga.App. 614, 615(1), 344 S.E.2d 452 (1986); Barnes v. State, 175 Ga.App. 621, 334 S.E.2d 205 (1985); McLeod v. State, 170 Ga.App. 415, 417(3), 317 S.E.2d 253 (1984); Kenerleber v. State, 137 Ga.App. 618, 224 S.E.2d 476 (1976). "As in Prescott v. State, 164 Ga.App. 671, 672(1) (297 SE2d 362) (1982), so here: 'Appellant made no affirmative showing ... that anyone other than himself and his wife had had actual access to the [premises] during several days or weeks prior to the discovery of the [drugs and firearms].' " (Emphasis supplied.) Barnes v. State, supra 175 Ga.App. at 626(1), 334 S.E.2d 205.
There is no requirement that the State must in every case prove that contraband was in the exclusive possession of one who is otherwise shown to be the owner or lessee of the premises. While evidence that the defendant-owner or lessee shared the premises with another does not demand a conviction, it may nevertheless authorize the jury, as the trior of fact, to find that the defendant was in at least joint possession of the contraband. In the present case, the presumption that arose against appellant as the owner or lessee of the premises was not rebutted as a matter of law and Lane v. State, 177 Ga.App. 553, 554(1), 340 S.E.2d 228 (1986). As to both of appellant's convictions, the trial court correctly denied appellant's motion for a directed verdict of acquittal.
2. The trial court sentenced appellant for felony possession of marijuana. See OCGA § 16-13-30(j)(2). Appellant enumerates his sentence as error, urging that he should have been sentenced for misdemeanor possession of one ounce or less of marijuana. See OCGA § 16-13-2(b).
The evidence clearly authorized a finding that appellant was in possession of more than one ounce of marijuana. However, even if the evidence in the present case had demanded a finding that appellant was in possession of less than one ounce of marijuana, his applicable sentence would nevertheless be for the commission of a felony. Only a "person [who] would have...
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