Gray v. State, 313 Ga. App. 470

Gray, on three related probation cases from 2007, was revoked in 2010 after petitions alleging marijuana possession with intent to distribute and failure to complete a day center program.
The evidence included a controlled marijuana purchase near a trailer, a no-knock search of the trailer, and a bag containing 1.9 ounces of marijuana found in a bedroom closet.
Gray was at the open front of the trailer and claimed he did not reside there, awaiting occupants to retrieve his property.
The State presented circumstantial evidence and argued Gray’s ownership of some personal property supported constructive possession, but there was no direct proof Gray resided at the trailer or owned the premises.
The trial court found a preponderance of the evidence of the violations and revoked three years of probation, which this Court reverses on appeal.
Key issue: the evidence did not exclude other reasonable hypotheses and did not meet the preponderance standard for possession with intent to distribute or for willful noncompliance with the day-center program.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State proved marijuana possession with intent to distribute.	Gray failed to show actual possession; circumstantial evidence insufficient.	State’s constructive-possession theory supported by Gray’s presence and property ownership claims.	Evidence insufficient; no preponderance to prove possession with intent to distribute.
Whether Gray’s failure to attend the day center was a willful violation.	Gray willfully failed to complete the program.	Removal due to arrest, not voluntary noncompliance, so no willful violation.	Not a willful violation; probation revocation reversed.
Applicability of standard for constructive possession in probation revocation.	Constructive possession can be shown by proximity and ownership of items.	Proximity alone insufficient; must exclude reasonable hypotheses.	Proximity and ownership not enough; reversed for lack of preponderance.

Scott v. State, 305 Ga. App. 596 (Ga. Ct. App. 2010) (probation revocation requires preponderance; manifest abuse standard)
Brown v. State, 294 Ga. App. 1 (Ga. Ct. App. 2008) (possession evidence must exclude other hypotheses)
Anderson v. State, 212 Ga. App. 329 (Ga. Ct. App. 1994) (presence in another’s house with drugs nearby insufficient)
Oliver v. State, 305 Ga. App. 779 (Ga. Ct. App. 2010) (comparison of willful violation with voluntary offense)
Massey v. Meadows, 253 Ga. 389 (Ga. 1984) (wilfulness required for non-payment of fines)