State v. Alvarado
| Decision Date | 08 November 1990 |
| Docket Number | No. S90G0840,S90G0840 |
| Citation | 397 S.E.2d 550,260 Ga. 563 |
| Parties | The STATE v. ALVARADO. |
| Court | Georgia Supreme Court |
Jack O. Partain III, Dist. Atty., Michael R. McCarthy, Asst. Dist. Atty., Conasauga Judicial Circuit, Dalton, for State.
Harlan M. Starr, Bates, Kelehear & Starr, Dalton, for Alvarado.
We granted certiorari to consider how the concepts of "actual" possession and "constructive" possession, and the requirement that both types of possession be "knowing," apply in a cocaine trafficking case.
At the time that the alleged offense occurred, OCGA § 16-13-31 required proof of "actual" possession to constitute trafficking, whereas either actual or constructive possession constituted the offense of possession of a controlled substance under OCGA § 16-13-30. The defendant asserted that he lacked knowledge of the presence of cocaine in the automobile which he was driving but also requested that the trial court charge the jury on unlawful possession of a controlled substance as a lesser included offense.
Defendant was stopped for a traffic violation. Officers discovered a large amount of cocaine in a false compartment in the door of his car. Defendant contended that he did not know that the cocaine was in the car. At his trial for cocaine trafficking the theory of the defense was that the cocaine had been placed in the compartment either by a person who had possession of the car for several days or some unknown person. At his trial the court refused to charge on the lesser included offense of possession of cocaine even though defendant made a written request for the charge. Defendant was convicted of trafficking in cocaine.
On appeal the state argued that the lesser included offense was not reasonably raised by the evidence and that defendant was either guilty of the greater offense or not guilty. The Court of Appeals reversed, finding that a jury issue was raised as to whether defendant exercised actual or constructive possession and that, therefore, the lesser offense of possession of cocaine was reasonably raised by the evidence. Alvarado v. State, 194 Ga.App. 781, 391 S.E.2d 668 (1990).
Appellee responds that the Court of Appeals correctly found that the trial court erred in not charging on the lesser included offense of possession of cocaine. At the time of the charge against him conviction of the offense of trafficking required proof of actual, as opposed to constructive, possession. The Court of Appeals distinguished Santone v. State, 187 Ga.App. 789, 371 S.E.2d 428 (1988) and Hernandez v. State, 182 Ga.App. 797, 357 S.E.2d 131 (1987), relied upon by the state, by concluding that in these cases the type of possession was not at issue.
The Court of Appeals found that the difference between actual and constructive possession, often one of degree, was a question for the jury in appellee's case. We agree. The cocaine was located in the rear quarter panels of the car. To gain access to it one would have to remove part of the rear seat and also side plastic moldings of the back seat arm rest and, finally, uncover an opening covered by a plate attached by three phillips screws. This evidence raised an issue of direct physical...
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