746 S.E.2d 280 | Ga. Ct. App. | 2013
Marquis Rashad Maddox was found guilty by a jury of possession of cocaine and marijuana found hidden in a car in which he was a passenger. He was also found guilty of giving false information to a police officer. Maddox appeals claiming: (1) that the evidence was insufficient to support his conviction for constructive possession of the cocaine and marijuana, and (2) that the trial court erred by denying his request to instruct the jury that, where there is evidence that another occupant of the car had equal access to and jointly possessed the contraband, but the State did not charge the other occupant, the State had the burden to prove that he was in sole constructive possession of the contraband. For the following reasons, we find no error and affirm.
The State presented the following evidence in support of the charges. A uniformed police officer investigated a car backed into the driveway of an abandoned house at midnight. As he approached, the officer saw four occupants in the car, one in the front passenger seat, and three in the back seat. The man in the front passenger seat, later identified as Maddox, exhibited a shocked expression when he saw the officer and quickly exited the car. The officer instructed Maddox to get back in the car and told the other occupants to stay in the car and show their hands. The officer asked all the occupants for identification for the purpose of checking for outstanding warrants. At that point, the officer could smell the odor of marijuana coming from the interior of the car. Maddox and at least one of the other occupants provided the officer with false identification information. After other officers arrived, all of the occupants were told to get out of the car and a search of Maddox revealed that he was carrying two separate bundles of cash — a $181 bundle (consisting of five $20 bills, two $10 bills, nine $5 bills, and sixteen $1 bills), and a $500 bundle (consisting of nineteen $20 bills, nine $10 bills, three $5 bills, and fifteen $1 bills). Maddox was also carrying two cell phones. In the center console, located between the front passenger seat and the driver’s seat, police found a bag of suspected crack cocaine, a bag of suspected marijuana, and an electronic weighing device. The investigating officer, who was trained and experienced in narcotics investigations, testified that the amount of cash, the denominations of the bills, and the multiple cell phones found on Maddox’s person, were items commonly associated with persons possessing and selling narcotics. The officer testified that the electronic weighing device was commonly used in the sale of narcotics. One of the rear seat occupants was carrying a loaded handgun, which the officer testified was also commonly associated
The State’s contention was that Maddox, who was seated in the front passenger seat of the car, had constructive possession of the cocaine and marijuana found in the console located between the driver’s seat and the front passenger seat. No possession charges were brought against the driver of the car, or against its owner, or against the rear seat passengers. Maddox contends that the circumstantial evidence presented by the State failed to prove beyond a reasonable doubt that he had constructive possession of the contraband, and failed to exclude the reasonable hypothesis that either the driver or the owner of the car had sole constructive possession of the contraband.
[T]he law recognizes that possession can be actual or constructive, sole or joint.... A person has actual possession of a thing if he knowingly has direct physical control of it at a given time. 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. If one person alone has actual or constructive possession of a thing, possession is sole, but if two or more persons share actual or constructive possession of a thing, possession is joint.
Holiman v. State, 313 Ga. App. 76, 78 (720 SE2d 363) (2011). The trial court instructed the jury on the above principles. Based on evidence that the owner of the car was present at the scene and that there were three other passengers in the rear seat of the car, the trial court gave additional instructions requested by Maddox in support of his defense that he was merely present in the car as a passenger; that he did not know about or possess the hidden contraband; and that the owner of the car had exclusive constructive possession of the contraband.
1. We find that the State presented evidence sufficient for the jury to reject Maddox’s defenses and to find beyond a reasonable doubt that, because he knowingly had both the power and intention to exercise dominion or control over the cocaine and marijuana found next to him in the car’s console, he had constructive possession of the contraband. Allen v. State, 191 Ga. App. 623, 624 (382 SE2d 690) (1989).
“A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where, as here, the contraband is hidden.” Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997). And “[e]vidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” Whipple v. State, 207 Ga. App. 131, 132 (427 SE2d 101) (1993) (citation and punctuation omitted). The State’s evidence showed more than Maddox’s mere presence in the car and spatial proximity to the contraband. The evidence showed not only that Maddox had easy access to the contraband located next to him in the console “and thus the power to exercise control over it” (Allen, 191 Ga. App. at 625), but also that he had the intent to exercise control over the contraband. Intent to exercise control may be inferred from the circumstances. Strozier v. State, 313 Ga.App. 804, 808 (723 SE2d 39) (2012). The State produced evidence that the amount and denominations of the bills possessed by Maddox, and the two cell phones he carried, linked him to the possession and sale of the contraband. Id. The odor of marijuana
When the State’s constructive possession case is based wholly on circumstantial evidence, “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.” Former OCGA § 24-4-6. The circumstantial evidence produced by the State was consistent with the charge that Maddox had constructive possession of the contraband; was sufficient to exclude every reasonable hypothesis save that of his guilt; and was sufficient to allow the jury to find beyond a reasonable doubt that Maddox had constructive possession of the contraband. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). The evidence was also sufficient to prove beyond a reasonable doubt that Maddox was guilty of giving false information to the police officer. Id.
2. Maddox claims the trial court erred by refusing his request to instruct the jury that, where evidence shows another occupant of the car with equal access jointly possessed the contraband, but the State did not charge the other occupant, the State had the burden to prove that he was in sole constructive possession of the contraband. There was no error in refusing to give this instruction. Even assuming there was evidence that another uncharged occupant had equal access and jointly possessed the contraband, we conclude the State was not required to prove that Maddox had sole constructive possession.
The instruction requested by Maddox is based on a line of cases in this Court originating with Reid v. State, 212 Ga. App. 787 (442 SE2d 852) (1994). Like the present case, Reid dealt with contraband hidden in a car with multiple occupants. Citing to no authority, Reid held: When more than one occupant has equal access to hidden contraband, but only one occupant is prosecuted for possession of the contraband, the State has the burden of proving that the prosecuted occupant “was in sole constructive possession” of the contraband. Id. at 788, n. 1 (emphasis in original). For the reasons set forth below, we now conclude there is no reasonable basis for this holding, and overrule Reid in part to the extent it adopted this holding. To the
Circumstantial evidence that multiple occupants of a car had equal access to hidden contraband may support the theory that all the occupants were guilty as parties to the crime and had joint constructive possession of the contraband. Castillo v. State, 166 Ga. App. 817, 822 (305 SE2d 629) (1983).
the settled rule [is] that the failure of the State to prosecute one party to a crime ordinarily offers no defense to other parties to the crime. See OCGA § 16-2-21 (party to a crime can be convicted even if the principal has not been prosecuted); Davis v. State, 163 Ga. 247, 248 (135 SE 916) (1926) (“Failure to prosecute the principal will in no wise relieve the accessory.”); see also Grimes v. State, 245 Ga. App. 277, 278*816 (2) (537 SE2d 720) (2000) (“A party to a crime may be prosecuted and convicted for the commission of the offense regardless of whether anyone else was prosecuted”).
Holiman, 313 Ga. App. at 79. And as the dissent in Reid pointed out, whether another occupant of the car was also in constructive possession of the hidden contraband, so that the defendant’s constructive possession was joint instead of sole, was irrelevant to whether the evidence was sufficient to find the defendant guilty. Reid, 212 Ga. App. at 791 (Beasley, P. J., dissenting). The State was not required to prove that Maddox was in sole constructive possession of the contraband in order to obtain a conviction, but could produce evidence proving beyond a reasonable doubt that Maddox had sole or joint constructive possession of the contraband.
Judgment affirmed.
An equal access jury instruction, where supported by some evidence of equal access, is appropriate only to counter an instruction given to the jury on the permissive presumption that the owner or driver of the car has exclusive possession of contraband hidden in the car. Johnson, 280 Ga. at 512-513.
