☢ test - Í
by appellant found in apartment leased to appellant's girlfriend). 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.” Accord, Strozier v. State , 313 Ga.App. 804, 723 S.E.2d 39 (January 31, 2012) (spatial proximity to hidden contraband alone insufficient to support conviction for possession thereof); White (November 16, 2012), above (case law relating to possession and equal access applicable to probation revocation proceedings, citing Gray). Holiman v. State, 313 Ga.App. 76, 720 S.E.2d 363 (November 30, 2011). Physical precedent only. Cocaine trafficking conviction affirmed; defendant could be convicted of joint constructive possession with his brother where the brother was charged by the federal government, while defendant was charged by the State. Blackwell criticizes the rule requiring both persons to be charged, originating in Reid v. State, 212 Ga.App. 787, 788 n.1 (442 S.E.2d 852) (1994). “We have found no mention of this principle in any case that preceded Reid, and our opinion in Reid cites no authority for it and does not explain why it must be so. … Given the absence of an explanation for the principle, some reasonable people might question whether it is a sound one, especially considering the settled rule 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 S.E. 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 S.E.2d 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.’).” Boatner v. State, 312 Ga.App. 147, 717 S.E.2d 727 (October 19, 2011). Probation revocation partially reversed; evidence didn’t support finding that probationer possessed “a loaded rifle outside the front porch railing of Boatner’s trailer.” “[T]he State's only evidence of Boatner's possession of the rifle is the rifle's proximity to Boatner's trailer. The rifle was found leaning against the outside railing of the porch on Boatner's trailer. The probation officer acknowledged that the rifle could have belonged to any one of Boatner's neighbors. Notably, the police did not find any ammunition inside Boatner's trailer or on his property.” “Because there must be something more than mere spatial proximity that links the probationer to the prohibited item, the State did not carry its burden of showing that Boatner was in possession of the rifle.” Ferrell v. State, 312 Ga.App. 122, 717 S.E.2d 705 (October 18, 2011). Evidence supported drug convictions: “the MDMA pills were found in a prescription pill bottle belonging to Ferrell; and the pill bottle was found in the Crown Royal bag with the cocaine. ‘As long as there is slight evidence of access, power, and intention to exercise control or dominion over [the contraband], the question of fact regarding constructive possession remains within the domain of the trier of fact.’ (Punctuation and footnote omitted.) Wright v. State, 279 Ga.App. 299(1) (630 S.E.2d 774) (2006).” Accord, Stokes v. State , 317 Ga.App. 435, 731 S.E.2d 118 (August 15, 2012) (defendant had constructive possession of drugs in passenger’s shoe, which were to be defendant’s payment for driving). Nix v. State, 312 Ga.App. 43, 717 S.E.2d 550 (October 13, 2011). Conviction for felony marijuana possession was supported by presumption that driver of vehicle is “presumed to have exclusive possession and control of the marijuana found therein. Turner v. State, 277 Ga.App. 205, 206(1), 626 S.E.2d 176 (2006). Under the equal access doctrine, ‘merely finding contraband in a car [driven] by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. Whether evidence of equal access by others is sufficient to overcome the presumption that the driver possessed the contraband found in his vehicle depends on the strength of the evidence and is a question for the factfinder.’ (Citations omitted.) Id. at 206–207(1), 626 S.E.2d 176. The court instructed the jury on both the presumption of possession and the equal access doctrine. As the factfinder, the jury was entitled to reject the testimony of Nix's friend that the marijuana was his, see Wheeler v. State, 307 Ga.App. 585, 587(1), 705 S.E.2d 686 (2011), and to determine that the presumption of Nix's possession of the marijuana had not been rebutted. See Davis v. State, 272 Ga.App. 33, 34, 611 S.E.2d 710 (2005). The evidence was sufficient to authorize Nix's conviction for possession of marijuana. See id.” Bone v. State, 311 Ga.App. 390, 715 S.E.2d 789 (August 15, 2011). Conviction for possession of methamphetamine affirmed; evidence supported finding of possession: “‘so long as there is slight evidence of access, power, and intention to exercise dominion or control over the contraband, the question of fact as to constructive possession remains with the jury.’ (Footnote omitted.) Davenport v. State, 308 Ga.App. 140, 145(1)(b), 706 S.E.2d 757 (2011). In the present case the trier of fact was presented with sufficient evidence to determine beyond a reasonable doubt that Bone was guilty of possessing methamphetamine. Such evidence includes Officer Gravitt's testimony that he saw Bone tuck something into his waistband while still in the car, Bone's flight from law enforcement after being stopped for a minor traffic offense, the
Made with FlippingBook Ebook Creator