Kirchner v. State
322 Ga. App. 275
| Ga. Ct. App. | 2013Background
- Kirchner was convicted by a Cherokee County jury of felony possession of marijuana (>1 ounce), misdemeanor possession (<1 ounce), tampering with evidence, and contributing to the delinquency of a minor.
- The larger evidence stemmed from police discovery of about 13 ounces of marijuana in a locked gun safe in Kirchner’s home, linked to her son D. K., and other marijuana-related paraphernalia found throughout the house.
- Witnesses described open marijuana use, sales by D. K., and a pervasive odor of marijuana in Kirchner’s downstairs family room.
- Kirchner allowed officers into the home under a pretext to use the bathroom, during which time she allegedly assisted in concealing drugs and later attempted to wash baggies containing marijuana in the dishwasher.
- The State relied on ownership and residency of the home to argue Kirchner constructively possessed the drugs, and on deliberate-ignorance and common-criminal-intent theories to support knowledge and participation.
- Kirchner did not testify or present defense witnesses, arguing the drugs and activities were solely D. K.’s and that she lacked knowledge or control.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for felony possession | Kirchner contends she lacked dominion over the drugs in the safe. | Kirchner argues D. K. had exclusive access; she did not exercise control. | Sufficient evidence supported constructive possession and participation. |
| Knowledge construct required for possession | Knowledge could be shown by actual knowledge or deliberate ignorance. | Kirchner challenges knowledge by implying lack of actual knowledge. | Deliberate-ignorance inference properly applied; evidence supported knowledge. |
| Presumption of possession where owner/resident | Owner/resider presumption applies to control the contraband in the home. | Equal-access doctrine cannot rebut the presumption absent joint possession. | Presumption established control; equal-access rebuttal not available here. |
| Tampering with evidence—sufficiency and variance | Washing baggies to destroy evidence showed intent to obstruct. | Evidence-trial variance or lack of testing undermined proof of marijuana residue. | Circumstantial evidence and surrounding facts supported tampering conviction; no fatal variance. |
| Contributing to the delinquency of a minor | Kirchner aided D. K. in possessing marijuana. | Conviction rests on the same evidence as felony possession; insufficient by itself. | affirmed in light of sufficiency of principal possession conviction. |
Key Cases Cited
- Smoot v. State, 316 Ga. App. 102 (Ga. App. 2012) (constructive possession and presumption principles for premises)
- Clewis v. State, 293 Ga. App. 412 (Ga. App. 2008) (equal-access doctrine limitations on rebutting possession presumption)
- Pruitt v. State, 282 Ga. 30 (Ga. 2006) (presence at scene not enough; common-criminal-intent inference)
- Able v. State, 312 Ga. App. 252 (Ga. App. 2011) (deliberate-ignorance knowledge doctrine)
- Rosser v. State, 284 Ga. 335 (Ga. 2010) (circumstantial evidence linking to marijuana admissible without direct testing)
- Jones v. State, 268 Ga. App. 246 (Ga. App. 2004) (police opinions plus circumstantial evidence can prove possession)
- Phillips v. State, 242 Ga. App. 404 (Ga. App. 2000) (inference of possession from context and conduct)
- Eberhart v. State, 241 Ga. App. 164 (Ga. App. 1999) (circumstantial-evidence standard for excluding other hypotheses)
- King v. State, 317 Ga. App. 834 (Ga. App. 2012) (limitations on expert opinion proving substance identity in absence of testing)
- Chambers v. State, 260 Ga. App. 48 (Ga. App. 2003) (limits of lay witness testimony on drug identity when testing unavailable)