390 S.E.2d 75 | Ga. Ct. App. | 1990
The appellants, Chuck and Shirley Ann Medley, were jointly indicted and tried on charges of unlawfully possessing the controlled substances diazepam, pentazocine, and marijuana. Shirley Ann Med
The subpoenaed witness was Steve Medley, Chuck Medley’s brother. He had been in the county jail during the week the case was originally scheduled for trial, and his attendance in the courtroom had been secured during that week by a court order directed to the sheriff. However, the case was not called for trial that week; and by the time the trial finally took place, the witness had been transported to Tennessee to answer charges pending against him in that state. When asked at the hearing on the motion for continuance what testimony the witness was expected to give, defense counsel responded, “He would testify that these pills [referring to the diazepam and pentazocine tablets] were his, Your Honor.”
The diazepam and pentazocine tablets had been seized from Shirley Ann Medley’s purse during the execution of a search warrant for the appellants’ residence. They were not in a prescription container; and according to the arresting officer, Ms. Medley acknowledged that they were hers after being advised of her Miranda rights. Neither of the appellants testified at trial. However, a local pharmacist called as a witness on their behalf testified that he had filled several diazepam and pentazocine prescriptions for Steve Medley during the months prior to their arrest. Held:
1. As there is no suggestion that the absent witness would have offered any testimony relevant to the marijuana possession charges, the trial court’s refusal to grant the continuance clearly establishes no basis for reversal of the appellants’ convictions on those charges. Accord Jackson v. State, 184 Ga. App. 133, 135 (5) (360 SE2d 907) (1987).
2. Even assuming that the diazepam and pentazocine pills found in Shirley Ann Medley’s possession were among those which had been dispensed to Steve Medley by the pharmacist, it would not follow that her possession of them was lawful. Generally speaking, it is unlawful for any person to possess or have under his or her control any controlled substances except as specifically authorized by the Controlled Substances Act. See OCGA § 16-13-30 (a). Moreover, the burden of coming forward with evidence of such an exemption is on the person claiming it. See OCGA § 16-13-50 (a); Strong v. State, 246 Ga. 612, 616 (8) (272 SE2d 281) (1980); Nix v. State, 135 Ga. App. 672, 673 (219 SE2d 6) (1975).
The exemption upon which Ms. Medley evidently relies is created by OCGA § 16-13-35 (c) (3), which authorizes the possession of a
3. The trial court was further authorized to deny the motion based on the absence of any showing that the witness’s testimony was expected to be procured at the next term of court. See Tomlin v. State, 170 Ga. App. 123, 125 (5) (316 SE2d 570) (1984).
Judgment affirmed.