Id. Walden found that the passenger's โsole defenseโ was that he was a โmere passenger in the carโ without actual or constructive possession of the cocaine, and that to adequately present this defense to the jury the passenger was entitled to jury instructions: (1) that a rebuttable presumption existed that the driver/owner had exclusive possession of the cocaine in the car; and (2) that evidence showing that a person or persons other than the driver/owner had equal access to the cocaine in the car may or will, depending on the strength of the evidence, overcome the presumption that the cocaine was in the exclusive possession of the driver/owner. Id. at 844โ845, 397 S.E.2d 182; see Castillo v. State, 166 Ga.App. 817, 821โ822, 305 S.E.2d 629 (1983) (setting forth the โrebuttable presumptionโ and โequal accessโ rules in the context of automobiles). We find that Walden wrongly decided that the accused passenger was entitled to jury instructions on the โrebuttable presumptionโ and the โequal accessโ rule as part of the passenger's โsole defenseโ of โmere presence.โ
1. Defendant contends that the trial court exceeded its authority in that it was authorized only to fix a sentence within the limits authorized by law, citing Richards v. State, 160 Ga. App. 489, 490 ( 287 S.E.2d 394), and OCGA ยง 16-13-30 as not allowing the fine which was not within the judicial discretion of the trial court. See also Riggins v. Stynchcombe, 231 Ga. 589, 592 ( 203 S.E.2d 208); Castillo v. State, 166 Ga. App. 817, 824 (7) ( 305 S.E.2d 629). While the statute does not authorize the fine which the defendant seeks to set aside the above cases are not applicable inasmuch as the fine was imposed as a condition of probation. See OCGA ยง 17-10-8 (formerly Code Ann. ยง 27-2529) as to payment of fine as condition precedent to probation in a felony conviction.
B. Cases Using "Any Evidence" Standard:Baxter v. State, 160 Ga. App. 181 (1981) Gaither v. State, 160 Ga. App. 705, 706 (1981) Castillo v. State, 166 Ga. App. 817 (1983) C. Cases Using Statutory "No Conflict . . . and the Evidence Shall Demand" Standard:
This principle has been expressed in numerous appellate decisions. See, e.g., Mitchell v. State, 222 Ga. App. 453, 454 (1) (b) ( 474 SE2d 306) (1996); Jackson v. State, 216 Ga. App. 842, 845 (2) ( 456 SE2d 229) (1995); Jones v. State, 200 Ga. App. 519, 521 (2) (c) ( 408 SE2d 823) (1991); Lance v. State, 191 Ga. App. 701, 703 (2) ( 382 SE2d 726) (1989); Akins v. State, 184 Ga. App. 441 (1) ( 361 SE2d 707) (1987); Castillo v. State, 166 Ga. App. 817, 822 (2) ( 305 SE2d 629) (1983). See also Knighton v. State, 248 Ga. 199, 200, n. 1 ( 282 SE2d 102) (1981), and Burdett v. State, 159 Ga. App. 394 (2) ( 283 SE2d 622) (1981), discussing instructions that a jury may presume possession from the fact that contraband was found in a person's home, but that the presumption could be rebutted.
See Miller, 273 Ga. at 831.See Warren v. State, 254 Ga. App. 52, 53-54 (1) ( 561 SE2d 190) (2002); Castillo v. State, 166 Ga. App. 817, 822 (2) ( 305 SE2d 629) (1983). 2.
Further, the evidence that Cochran and Cunningham had both controlled the car, and thus had access to the trunk of the vehicle, was consistent with their joint constructive possession of the contraband. Castillo v. State, 166 Ga. App. 817, 822 (2) ( 305 SE2d 629) (1983) ("By showing circumstantially that each of the defendants had equal access to the drugs, the state was able to support its theory that all of the defendants were parties to the crime and thus guilty of joint constructive possession of the drugs"). Although circumstantial, the evidence was sufficient to demonstrate Cochran's power and intent to exercise control over the marijuana.
The circumstantial evidence showed a connection between Taylor and the marijuana other than spatial proximity; it was sufficient to exclude every reasonable hypothesis save that of guilt, and was sufficient for the jury to find beyond a reasonable doubt that Taylor had joint constructive possession of the marijuana and was guilty as a party to the charged offense. OCGA ยง 16-13-30 Q); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Wilson v. State, 256 Ga. App. 741-743 ( 569 SE2d 640) (2002); Castillo v. State, 166 Ga. App. 817, 822 ( 305 SE2d 629) (1983). As to the trafficking in cocaine charge, the State sought to prove that Taylor, Hall, and Patten jointly occupied the apartment where the cocaine was found and that they had joint constructive possession of the cocaine.
Walton v. State, 217 Ga. App. 773, 774(1) ( 459 S.E.2d 184) (1995).Castillo v. State, 166 Ga. App. 817, 821(1) ( 305 S.E.2d 629) (1983).Jackson v. Virginia, 443 U.S. 307 ( 99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
(Citations and punctuation omitted.) Castillo v. State, 166 Ga. App. 817, 821-822 (2) ( 305 S.E.2d 629) (1983). Possession of contraband may be actual or constructive.
And "[s]ince the verdict was not based on a presumption of possession, the . . . equal access principle was not available to rebut such presumption. Castillo v. State, 166 Ga. App. 817 ( 305 S.E.2d 629; see Fears v. State, 169 Ga. App. 172, 174 ( 312 S.E.2d 174)[1983]." (Punctuation omitted.)