Opinion
A05A1594
DECIDED: OCTOBER 24, 2005
Following a bench trial, Gregory Turner appeals his conviction of possession of cocaine, challenging the sufficiency of the evidence. Discerning no error, we affirm.
"On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and [Turner] no longer enjoys a presumption of innocence." Berry v. State. The standard of review for sufficiency of the evidence, set out in Jackson v. Virginia,
Berry v. State, ___ Ga. App. ___ (1) (slip op. 1) (Case No. A05A0903; decided July 29, 2005).
Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).
is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In addition, appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.
Davis v. State, 270 Ga. App. 777 (1) ( 607 SE2d 924) (2004).
So viewed, the record shows that officers on routine patrol spotted Turner's car entering the parking lot of a hotel at approximately 3:00 a.m. in a high drug trafficking area. They ran his tag, which came back registered to a different car. The officers pulled Turner over and asked him to explain the tag discrepancy. Turner responded that he had "owned the car for a while" and produced a five-month-old bill of sale.
While talking to Turner, the officers noticed an open container of an alcoholic beverage in the car. They asked Turner and his passenger to step out of the vehicle and obtained permission from Turner to search the car. The search uncovered a bag of cocaine weighing less than one ounce under the passenger's seat. The officers testified that both Turner and his passenger denied ownership of the drugs.
Turner was arrested and charged with possession of cocaine. He was convicted following a bench trial in which the State argued Turner was in joint constructive possession of the cocaine, and his sole enumeration on appeal is that evidence of equal access prevents a finding of constructive possession of the cocaine beyond a reasonable doubt.
Under Georgia law, the driver and owner of an automobile, in the absence of any circumstances to the contrary, is presumed to have possession and control of contraband found in the automobile, but this presumption is rebuttable by evidence of equal access. And in [an automobile] context, evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. However, the equal access rule, conceptually and historically, has no application where, as here, all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of that contraband.
(Citation and punctuation omitted; emphasis supplied.) Davis, supra at 779 (1).
Warren v. State explains the reason for not applying the "equal access" rule where joint constructive possession is alleged:
Warren v. State, 254 Ga. App. 52, 54 (1) ( 561 SE2d 190) (2002).
Possession of contraband may be actual or constructive. Moreover, joint constructive possession with another will sustain a conviction for possession of contraband. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. 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. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.
The State argued that Turner was in joint constructive possession of the cocaine, and therefore the "equal access" rule did not apply to eliminate the presumption of possession arising from Turner's ownership and driving of the vehicle. See Boykin v. State ("`if all occupants of a vehicle had equal access to contraband, they may be found in joint constructive possession'"). The trial court was authorized to find the evidence of joint constructive possession sufficient to convict Turner of the charged crime. See Davis, supra at 779 (1).
Boykin v. State, 264 Ga. App. 836, 839 (2) ( 592 SE2d 426) (2003).
Judgment affirmed. Miller and Bernes, JJ., concur.