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Proving Possession of Drugs That Are Not In Your Actual Possession


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Have you been charged with possession of drugs that were not in your actual possession? One of the most common questions that I am asked is: how does the state/government prove possession of drugs that are not in your actual possession – the drugs are not on your person? The question certainly makes sense, and there are bases for charging someone with possession when despite the drugs not being found on their person. However, there are also solid defenses to possession charges based solely upon constructive possession of drugs and circumstantial evidence of possession.

Maddox v. State, 322 Ga.App. 811, 746 S.E.2d 280 (2013).

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 S.E.2d 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.  Accordingly, at Maddox’s request, the court instructed the jury: (1) that a rebuttable presumption existed that the owner of the car was in exclusive control and possession of the contraband found in the car; (2) that the presumption may be overcome by operation of the equal access rule providing that evidence showing a person or persons other than the car owner had equal access to contraband found in the car “may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner …” and (3) that the mere presence of an accused as a passenger in a car in which hidden contraband is found is insufficient to support a conviction in the absence of other evidence sufficient to show that the accused had constructive possession of the contraband. State v. Johnson, 280 Ga. 511, 512–513, 630 S.E.2d 377 (2006) (emphasis, punctuation, and citation omitted); Wilkerson v. State, 269 Ga.App. 190, 191–192, 603 S.E.2d 728 (2004); compare Thompson v. State, 234 Ga.App. 74, 77, 506 S.E.2d 201 (1998) (no error in refusing passenger’s request to instruct jury on rebuttable presumption that driver had exclusive possession of contraband, and on equal access, where instructions not supported by the evidence).

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 S.E.2d 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 S.E.2d 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 S.E.2d 101 (1993) (punctuation and citation 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, 382 S.E.2d 690), 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 S.E.2d 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 S.E.2d 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, 675 S.E.2d 260. 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 S.E.2d 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 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 S.Ct. 2781, 61 L.Ed.2d 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.

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 S.E.2d 852 (1994). Like the present case, Reiddealt 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, 442 S.E.2d 852 (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 S.E.2d 190 (2002); Turner v. State, 276 Ga.App. 381, 383–384, 623 S.E.2d 216 (2005); Benitez v. State, 295 Ga.App. 658, 660, 673 S.E.2d 46 (2009); Xiong v. State, 295 Ga.App. 697, 699, 673 S.E.2d 86 (2009); Millsaps v. State, 300 Ga.App. 383, 385, 685 S.E.2d 371 (2009); Molina v. State, 300 Ga.App. 868, 871, 686 S.E.2d 802 (2009); Rogers v. State, 302 Ga.App. 65, 67, 690 S.E.2d 437 (2010); Fyfe v. State, 305 Ga.App. 322, 326–327, 699 S.E.2d 546 (2010); Bodiford v. State, 305 Ga.App. 655, 656, 700 S.E.2d 648 (2010); Wheeler v. State, 307 Ga.App. 585, 586–587, 705 S.E.2d 686 (2011); Jefferson v. State, 309 Ga.App. 861, 862–863, 711 S.E.2d 412 (2011); Holiman v. State, 313 Ga.App. at 78–79, 720 S.E.2d 363; Mercado v. State, 317 Ga.App. 403, 405, 731 S.E.2d 85 (2012); and Clark v. State, 319 Ga.App. 880, 738 S.E.2d 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 S.E.2d 629 (1983).1 Under these circumstances, the State may elect to prosecute the occupants jointly or separately (Kennemore v. State, 222 Ga. 252, 149 S.E.2d 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 S.E.2d 184 (2003); Brinson v. State, 261 Ga. 884, 413 S.E.2d 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 Reidholding 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. 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.”).

Holiman, 313 Ga.App. at 79, 720 S.E.2d 363. 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, 442 S.E.2d 852 (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.

If you have been charged with possession of drugs, possession with the intent to distribute drugs, or trafficking in drugs in Georgia, you need an exceptionally well-qualified criminal defense attorney. Contact The Sessions Law Firm today.



About the Author

Ben Sessions, Attorney at Sessions Law Group
Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.


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