We granted the application for discretionary appeal in these three related cases to review the evidence supporting the trial court’s decision to revoke Roy Gray, Jr.’s probation. Because the evidence did not support the trial court’s judgments, even under the more lenient standard applicable to a probation revocation, we reverse.
In 2007, Gray pled guilty to three separate indictments for two counts of robbery by sudden snatching, entering an automobile, and financial transaction card fraud and was sentenced to a term of probation in all three. In 2010, the State filed petitions to revoke his probation in all three cases, alleging that he had possessed marijuana with intent to distribute and had failed to complete a day center program. Gray contested the petition, asserting that he did not possess the marijuana and that he did not intentionally fail to complete the program but was involuntarily removed upon his arrest.
The evidence presented at the hearing showed that in 2010, a narcotics officer conducted a controlled purchase of marijuana and cocaine at a trailer in Tifton. The following day, a team of officers served a no-knock search warrant on the property. The front door was open, and Gray was sitting in a chair “just in front of the door.” When questioned, Gray told the officers that he did not live there, that he had come to retrieve his video game console from the occupants because they had been evicted, and that he was waiting for them to return from moving some of the contents of the trailer. During the search of the trailer, officers found a black bag inside a bedroom closet, and inside that bag a sandwich bag containing 1.9 ounces of marijuana. In the kitchen, officers found a bag with suspected marijuana residue, scales, and razor blades on the counter, and a bullet-proof vest was discovered in the living room.
The officer acknowledged that he did not know who owned or rented the trailer, that
The court found that a preponderance of the evidence showed that Gray had violated his probation by possessing marijuana and failing to complete the drug program and revoked three years of his probation.
A court may not revoke any part of any probated or suspended sentence unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged. OCGA § 42-8-34.1 (b). This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.
(Citations, punctuation and footnote omitted.) Scott v. State,
1. Gray contends that the trial court erred in revoking his probation because the State failed to show by a preponderance of the evidence that he possessed marijuana with intent to distribute. When the State presents no evidence that the probationer was in actual possession of contraband, it must show constructive possession. Id. at 598. Moreover, “when the State’s constructive possession case is based wholly on circumstantial evidence, the law requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” (Citation and punctuation omitted.) Id.
“A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where, as here, the contraband is hidden. [Cits.]” Mitchell v. State,
Here, the State showed only that Gray was at the open front door of a trailer and that a sandwich bag of marijuana was found in a closed container inside a closet in a bedroom. The evidence showed that other individuals had access to the trailer, including a man who sold drugs to the confidential informant. While the State contends that Gray’s “claimed ownership of some of the personal property found at the residence” supports a finding of constructive possession, under the evidence presented here, that claim did not demonstrate Gray’s residence at the trailer to the exclusion of any other reasonable hypothesis.
Ordinarily, property supporting an inference of residence for the purposes of constructive possession consists of clothing, banking or business records, or other personal items customarily kept in one’s living quarters. See, e.g., Cox v. State,
A video game console, while possibly “worth a great deal of amount of money” as the State contended, is not, without more, a personal item of this kind. Compare Glass v. State,
2. With respect to the assertion that Gray violated his probation by failing to attend the reporting center, his attorney correctly noted that there was no intentional act on his part because he was involuntarily removed from the program as a result of his arrest and that he had no “opportunity to address the arrest until his revocation hearing.” A violation of the conditions of probation generally requires some voluntary act on the part of the probationer. See, e.g., Wade v. State,
As we note in Division 1, above, the evidence was insufficient to show that Gray committed the offense for which he was arrested. It follows that “his own actions” did not cause him to be dismissed from the drug treatment program, and he therefore was not in “willful and voluntary” violation of his probation. In Oliver v. State,
Here, in contrast, the circumstantial evidence was insufficient under a preponderance of the evidence standard to exclude every other reasonable hypothesis save that of guilt. The evidence was therefore insufficient to support a finding that Gray committed the offenses charged, and it was insufficient to find that his discharge from the day center program was the result of any voluntary or wilful conduct on his part. The trial
Judgments reversed.
Notes
A finding of wilfulness is also required when the probationer has allegedly violated probation by non-payment of a fine. See Massey v. Meadows,