Lockwood v. State
364 S.E.2d 574
Ga.
1988
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LOCKWOOD v. THE STATE.

45085

Supreme Court of Georgia

FEBRUARY 5, 1988

(364 SE2d 574)

GREGORY, Justice.

The subdivision relies on certain recorded restrictive covenants placed upon the subdivision property by the original grantors, particularly Restrictive Covenant No. 10 which provides: “No noxious or offensive activity shall be carried on upon any lot or parcel in said subdivision, nor shall anything be done thereon which may or may become an annoyance or nuisance to the neighborhood; and no business or trade of any nature or character be transacted in said subdivision.” The trial court held that the foregoing restrictive covenant was overly broad and contrary to public policy. However, the trial court cited no authority for its ruling and we have found none that prohibits a restriction against the operation of businesses in a residential subdivision. See

. Here, the restrictive covenant clearly and unambiguously prohibits the operation of a business in the subdivision properties. Id. Moreover, additional language in the preamble to the restrictive covenants indicates the intent that the subdivision properties maintain an exclusively residential character and that any nonresidential use of the properties be prohibited. See
. It is uncontroverted that the Gallahers operate a “family day care home” in their house in the subdivision, providing care for up to fifteen children throughout the day. The Gallahers’ business violates the subdivision‘s restrictive covenants and the trial court erred as a matter of law by denying the subdivision‘s motion to enjoin the business.

Judgment reversed. All the Justices concur.

DECIDED FEBRUARY 5, 1988.

Gleason & Davis, Frank M. Gleason, John W. Davis, Jr., for appellants.

Gwynn M. Adcock, R. Wayne Peters, for appellees.

GREGORY, Justice.

Lockwood was convicted of the offense of trafficking in cocaine, OCGA § 16-13-31 (a), and was sentenced to thirty years in prison. The Court of Appeals affirmed the conviction.

. We reverse.

Lockwood and his co-defendant, Curtis A. Phillips, Jr. were arrested on July 24, 1986 as they were travelling north on Interstate 75 in Catoosa County. They were initially stopped for speeding and improper lane usage. A subsequent consent search of the vehicle, which belonged to Lockwood, revealed four bags of cocaine concealed behind the rear seat.

Lockwood contends the trial court erred in charging the jury that they were authorized to convict Lockwood of trafficking in cocaine if the jury found beyond a reasonable doubt that he had actual or constructive possession of the cocaine.1 We agree. OCGA § 16-13-31 (a) provides that “[a]ny 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 . . . commits the felony offense of trafficking in cocaine. . . .“(Emphasis supplied.) The indictment alleged that Lockwood did “unlawfully knowingly actually possess more than four hundred (400) grams of cocaine, a controlled substance, in violation of the Georgia Controlled Substances Act.” However, in the charge to the jury the trial court stated that “[y]ou would be authorized to convict if you should find beyond a reasonable doubt that the defendant had actual or constructive possession either alone or jointly with others.”

“The law recognizes two kinds of possession, actual possession and constructive possession. 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 the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.”

. See
and Evans v. State, 167 Ga. App. 396 (306 SE2d 691) (1983). There is most assuredly a difference between actual and constructive possession even if the difference is only a matter of degree.
.

In light of this we hold that the trial court committed error by charging that the jury was authorized to convict Lockwood based on a finding that he was in constructive possession of the cocaine. The statute clearly requires a finding of actual possession and not constructive possession.

Judgment reversed. All the Justices concur, except Marshall, C. J., Clarke, P. J., and Weltner, J. who dissent.

WELTNER, Justice, dissenting.

The only kind of possession in this case is actual possession, as the contraband was found in Lockwood‘s car while he was driving it. Because there was no evidence that could have supported a finding of any other kind of possession, the trial court‘s charge as to constructive possession was surplusage, and harmless.

I am authorized to state that Chief Justice Marshall and Presiding Justice Clarke join in this dissent.

DECIDED FEBRUARY 5, 1988.

Vincent, Chorey, Taylor & Feil, John L. Taylor, Jr., John L. Schaub, Condon, Latona, Pieri & Dillon, John P. Pieri, for appellant.

David L. Lomenick, Jr., District Attorney, David J. Dunn, McCracken K. Poston, Jr., Assistant District Attorneys, for appellee.

Notes

1
The trial court charged the jury as follows: “I charge you that the law recognizes two kinds of possession, actual and constructive possession. 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 the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. If one person alone has actual or constructive possession of the thing, possession is sole. If two or more persons shared actual or constructive possession of the thing, possession is joint. You would be authorized to convict if you should find beyond a reasonable doubt the defendant had actual or constructive possession either alone or jointly with others. I charge you that to support a finding of constructive possession, the circumstantial evidence must be both consistent with the theory of possession, and must also exclude every other reasonable possibility. A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Spatial proximity just simply means the space between.” During deliberations the jury was returned to the courtroom whereupon the following colloquy took place: “THE COURT: Mr. Foreman, ladies and gentlemen of the jury, I have this note from you, and I quote, sir, we have different interpretations of the term possession of cocaine. Could you please correct us on this matter as it applies to this case. Do you have reference to the possession as I had explained it to you in the charge, is that the question? THE FOREMAN: Yes, sir.” Following this exchange, the court repeated its earlier charge on actual and constructive possession in all material respects. The jury then retired and reached its verdict in thirty minutes.