Opinion
66653.
DECIDED OCTOBER 11, 1983.
Drug violation. Sumter Superior Court. Before Judge Blanks.
O. Wendell Horne III, for appellant.
John R. Parks, District Attorney, Barbara Anne Kessler, Assistant District Attorney, for appellee.
Appellant was convicted of two counts of selling marijuana in violation of the Georgia Controlled Substances Act. He appeals, contending that the trial court erred in refusing to charge the jury regarding the principle that if two theories of fact exist which are equal in probability, then the one consistent with the defendant's innocence should be the theory accepted as true.
The evidence at trial revealed that appellant had sold marijuana to an undercover deputy sheriff on two separate occasions. The state's evidence consisted of the deputy's testimony and testimony concerning the chain of custody of the plastic packets of marijuana. Appellant's defense consisted of his uncorroborated assertion that he took the deputy's money but did not give him any marijuana.
"The requested charge was taken from Davis v. State, 13 Ga. App. 142 (1) ( 78 S.E. 866), and has been criticized from the date it was written." Booker v. State, 156 Ga. App. 40, 42 ( 274 S.E.2d 84), revd. on other grounds, 247 Ga. 74 ( 274 S.E.2d 334). "`If the requested charge is taken literally, if there is any evidence supporting "two theories" — one of innocence and one of guilt, then the "law compels the acceptance of the theory which is consistent with innocence." . . .'" Griffis v. State, 163 Ga. App. 491, 492 ( 295 S.E.2d 197). The Davis decision has subsequently been discredited and limited to cases where the conviction relies exclusively on circumstantial evidence. Nolen v. State, 124 Ga. App. 593 ( 184 S.E.2d 674).
In the present case, the state's case is based on the direct testimony of the undercover deputy sheriff. Furthermore, appellant's bare assertion that he didn't sell the deputy any marijuana hardly creates two sets of facts that are equally plausible. Therefore, we hold that the trial court was correct in refusing to charge this obviously inapplicable theory of law.
Judgment affirmed. McMurray, P. J., and Birdsong, J., concur.