Maddox v. StateMaddox v. State
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- Andrews
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
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
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 coming from the car occupied by Maddox, combined with other circumstantial evidence of intent, supported an inference that he was connected to the contraband. Vines v. State, 296 Ga. App. 543, 545-547 (675 SE2d 260) (2009). Maddox exhibited a shocked expression and immediately exited the car when he saw the officer approach, and he gave the officer a false name, circumstances from which intent to exercise control over the contraband may be inferred. Id. at 545-546. Similar transaction evidence showing that Maddox had two prior convictions for possession of cocaine and one prior conviction for possession of marijuana provided additional proof of intent. Taylor v. State, 305 Ga. App. 748, 751 (700 SE2d 841) (2010).
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
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 extent this holding has been restated in subsequent cases, those cases are also overruled in part, including: Warren v. State, 254 Ga. App. 52, 54 (561 SE2d 190) (2002); Tamer a State, 276 Ga. App. 381, 383-384 (623 SE2d 216) (2005); Benitez v. State, 295 Ga. App. 658, 660 (673 SE2d 46) (2009); Xiong v. State, 295 Ga. App. 697, 699 (673 SE2d 86) (2009); Millsaps v. State, 300 Ga. App. 383, 385 (685 SE2d 371) (2009); Molina v. State, 300 Ga. App. 868, 871 (686 SE2d 802) (2009); Rogers v. State, 302 Ga. App. 65, 67 (690 SE2d 437) (2010); Fyfe v. State, 305 Ga. App. 322, 326-327 (699 SE2d 546) (2010); Bodiford v. State, 305 Ga. App. 655, 656 (700 SE2d 648) (2010); Wheeler v. State, 307 Ga. App. 585, 586-587 (705 SE2d 686) (2011); Jefferson v. State, 309 Ga. App. 861, 862-863 (711 SE2d 412) (2011); Holiman v. State, 313 Ga. App. at 78-79; Mercado v. State, 317 Ga. App. 403, 405 (731 SE2d 85) (2012); and Clark v. State, 319 Ga. App. 880 (738 SE2d 704) (2013).
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).1 Under these circumstances, the State may elect to prosecute the occupants jointly or separately (Kennemore v. State, 222 Ga. 252 (149 SE2d 471) (1966)), or may elect to prosecute only one of the occupants for directly committing the crime, but nevertheless prove the sole prosecuted occupant was guilty as a party to the crime. Trumpler v. State, 261 Ga. App. 499, 500-501 (583 SE2d 184) (2003); Brinson v. State, 261 Ga. 884 (413 SE2d 443) (1992). We find no basis for the holding in Reid that the State is required under these circumstances to prove that the prosecuted occupant had sole constructive possession of the contraband. We questioned the Reid holding in Holiman, supra, but found it unnecessary in that case to rule on whether to disavow it. As Holiman pointed out,
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. SeeOCGA § 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 (2) (537 SE2d 720) (2000) (“Aparty 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.
Phipps, C. J., Barnes, P. J., Ellington, P. J., Doyle, P. J., Miller, Dillard, McFadden, Boggs, Ray, Branch and McMillian, JJ., concur.
Notes
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.