Defendants, husband and wife, were accused, via indictment, of possessing marijuana with intent to distribute and trafficking in cocaine. Following a jury trial, defendants were convicted upon each charge. They were sentenced to serve 10 years, 5 in confinement and 5 on probation. Additionally, each defendant was fined $50,000. Defendants moved for a new trial and their motions were overruled by the trial court. Defendant husband appeals in Case No. 72875 and defendant wife appeals in Case No. 72876. Held:
1. Defendants were indicted on February 25, 1985. The indictment charged that on December 17, 1984, defendants unlawfully possessed marijuana with intent to distribute in violation of the Georgia Controlled Substances Act. It also accused defendants of knowingly and actually possessing “more than 28 grams of a mixture containing cocaine.”
At the time of the offense and the indictment, OCGA § 16-13-31 read, in pertinent part: “Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in actual possession of 28 grams or more of cocaine or of any mixture containing cocaine, as described in Schedule II, . . . commits the felony offense of trafficking in cocaine . . .” Thereafter, OCGA § 16-13-31 was repealed. A new OCGA § 16-13-31 was enacted in its place. Effective *331 July 1, 1985, the statute provided: “Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in actual possession of 28 grams or more of cocaine as described in Schedule II . . . commits the felony offense of trafficking in cocaine. . . .” Ga. L. 1985, pp. 552, 553. Thus, the “mixture” language of the statute was omitted in the 1985 statute.
Defendants were tried in October 1985 after OCGA § 16-13-31 was amended. Relying upon
Gunn v. State,
In
Robinson v. State,
It held: “Gunn v. State, supra, is the law in Georgia. When a statute making described conduct a crime is repealed prior to final judgment on a conviction, the repeal ends the prosecution if the legislature has not provided otherwise in [a] saving clause. Here the legislature repealed the old law and enacted in its place a new law without including a saving clause. Thus, the appellant’s conduct was no longer defined by the legislature as trafficking in cocaine, therefore, the prosecution in this case was at an end before the trial.”
It follows that the prosecution of defendants for trafficking in cocaine by possessing more than 28 grams of a “mixture” containing cocaine was not authorized. The trafficking in cocaine convictions must be reversed. Robinson v. State, supra.
2. Defendants assert the evidence is insufficient to allow a rational jury to find them guilty of the crime of possessing marijuana with intent to distribute. See
Jackson v. Virginia,
The evidence adduced at trial demonstrates the following: On December 17, 1984, a search warrant was executed at the home of Gerald and Karen Haynes in Warner Robins. The warrant authorized the search of the Hayneses’ premises, including the curtilage. Defendants were visiting the Hayneses on the day the search took place. When the police entered the house, they found defendant wife and Mrs. Haynes sitting on a couch in the living room. Defendant husband was in a bedroom in the rear of the house and Mr. Haynes was in the hallway.
As the search progressed, a large quantity of marijuana was *332 seized in one of the bedrooms. The police searched a pocketbook which they found in the living room. The pocketbook was located about 10 or 12 feet from the couch upon which defendant wife and Mrs. Haynes sat. The officers made no inquiry as to whom the pocketbook belonged before searching it and neither defendant wife nor Mrs. Haynes claimed the pocketbook as her own. The pocketbook contained a small quantity of marijuana, a loaded .38 caliber revolver, a razor blade and a straw. Identification found inside the purse showed that it belonged to defendant wife.
A Cadillac titled in the name of the defendant wife was parked in the Hayneses’ driveway. An officer asked who owned the Cadillac and defendant wife responded that she did. The officer obtained the keys to the Cadillac from either the pocketbook or defendant wife and be began to search it. In the trunk of the automobile, the officer found a suitcase which contained a plastic bag holding a large quantity of marijuana. He also found men’s and women’s clothing, a set of reloading scales, empty ziplock plastic bags and a “fake” oil can. Inside the oil can were six plastic bags filled with cocaine.
The foregoing evidence was presented entirely by the prosecution. Neither defendant husband nor defendant wife took the stand to testify and no evidence was introduced on their behalf.
“[A] person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.”
Thomas v. State,
A review of the evidence demonstrates that defendant husband did not have actual possession of contraband. Thus, we must determine whether defendant husband was in constructive possession of the contraband. In making this determination, we must keep in mind the principle that circumstantial evidence must be consistent with the hypothesis of guilt and exclude every other reasonable hypothesis. OCGA § 24-4-6.
With regard to defendant husband, we find the evidence of constructive possession lacking. “It is well established that merely having been in the vicinity of contraband does not, without more, establish possession. [Cits.]”
Donaldson v. State,
3. Defendant wife’s ownership and control of her automobile gave rise to a presumption, in the absence of contrary evidence, that the marijuana found in the automobile was hers and in her possession.
Moore v. State,
4. Defendant wife asserts the trial court erred in denying her motion to suppress the evidence found in her pocketbook and automobile. In this regard, defendant wife argues that she was a mere visitor at the Hayneses’ residence and that, therefore, neither her pocketbook nor her automobile were properly searched pursuant to the warrant which the police executed. See
Hawkins v. State,
“The courts of this state have often held that searches of persons not named in a search warrant but found on the premises to be searched are illegal absent independent justification for a personal search
(Jones v. State,
“ ‘An analysis which focuses entirely on whether a belonging is in the physical possession of a non-resident visitor to premises searchable under a warrant, while it serves to protect the zone of privacy around the visitor’s person, ignores the substantial interest the visitor has in the privacy of all his possessions, wherever located. To overcome that interest, the federal and state constitutions require a warrant supported by probable cause. And a warrant to search premises only cannot logically meet this requirement since by hypothesis there is no way to know, at the time the warrant is issued, whether the visitor or his possessions will even be present at the premises when the warrant is executed, let alone whether his possessions are likely to contain the items listed in the warrant. Of course, the rule is otherwise when the warrant is used as a basis to search the belongings of a resident of the suspect locale ... for the resident’s control over the premises provides a nexus between (him) and his belongings which is absent in connection with the possessions of a non-resident visitor. (Cits.) On the other hand, the police cannot realistically be expected to avoid searching the property of a mere visitor to the premises unless they are aware of its ownership. Absent a requirement of such awareness, the effective execution of a warrant to search a place would be impossible since the police could never be sure that a plausible repository for items named in the warrant belongs to a resident, and hence is searchable, or to a non-resident, and hence is not search-able. Because of this, without notice of some sort of the ownership of a belonging, the police are entitled to assume that all objects within premises lawfully subject to search under a warrant are part of those premises for the purpose of executing the warrant.’
State v. Nabarro,
With an eye upon the principles set forth in
Childers v. State,
With regard to defendant wife’s automobile, the police had actual knowledge that that vehicle was the property of a visitor to the searched premises. Nevertheless, a search of the vehicle was undertaken. Giving due consideration to all the circumstances that existed on the premises, we think a search of the vehicle was lawful. We realize that a person does not lose his Fourth Amendment rights when he visits the house of a friend and that a person’s property, including his automobile, cannot be searched merely because he is a visitor upon searched premises.
Hawkins v. State,
As we pointed out above, the search of defendant wife’s purse conducted prior to the search of the automobile was, under the circumstances, entirely lawful. See
Childers v. State,
There having been established a sufficient “connection” between defendant wife and the very drug-related criminal activities that existed on “the premises” then being lawfully searched, we hold that a
*336
further search of her automobile pursuant to a warrant covering “the premises” was authorized. “It is clear that [defendant wife] in this case was not a mere visitor or passerby whose privacy was invaded during the execution of the warrant.”
Albert v. State,
*336 5. Defendant wife contends the trial court erred in denying her motion for severance. The motion was predicated upon defendant wife’s assertion that she intended to take the stand on her own behalf but could not do so without endangering her privilege not to testify against her husband.
“The grant or denial of a motion to sever is within the sound discretion of the trial court and the ruling thereon will not be disturbed unless there is an abuse of discretion.
Cain v. State,
In the case sub judice, defendant wife has not made a clear showing that actual prejudice resulted from the failure to sever. See
Gann v. State,
Judgment reversed in Case No. 72875. Judgment affirmed in part and reversed in part in Case No. 72876.