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Regarding the Legal Presumption of Ownership

by merlin on May 7th, 2014
  • Sumo

There are certain legal fictions that are in place to make it easier for the prosecution, plaintiff, or defense to do their job, termed “presumptions”.  They address things like presumed ownership of property in a vehicle when a person is pulled over.  This legal presumption of ownership (of illegal drugs found in the vehicle, for example) can be rebutted by proper evidence of “equal access”, provided that evidence is appropriately before the court, and provided the jury agrees that the equal access of other persons to the vehicle mean that the defendant’s ownership of the illegal drugs is not proven beyond a reasonable doubt.

This case is State v. Johnson, 280 Ga. 511 (Ga. 2006), and it includes an excellent discussion of the mechanics of the “equal access” rule.  It also involves the Georgia Supreme Court reversing the Court of Appeals (who reversed the trial court for failing to instruct on the rule) because other evidence supported the idea that the defendant was in possession of the drugs in question (his possession of a large quantity of cash and the circumstances surrounding his co-Defendant’s residence, where multiple arrests for possession of that substance arose).  In other words, the other presumption at play in this case is the evidence necessary to term a person a “dealer”, and the Defendant was convicted for having those characteristics:

Scott Thomas Poole, Asst. Dist. Atty., Garry Thomas Moss, Dist. Atty., for appellant.

        Stacy Dane Barnett, The Barnett Law Firm, Canton, for appellee.

        HINES, Justice.

        This Court granted certiorari to the Court of Appeals in Johnson v. State, 274 Ga.App. 282617 S.E.2d 252 (2005), to review the determination by the Court of Appeals that the trial court erred in refusing to give Johnson’s requested jury charge on the doctrine of equal access in his trial for possession of cocaine with intent to distribute. Finding that the requested charge was not warranted, we reverse.

        The evidence recited by the Court of Appeals shows that, acting on information from a confidential informant, on February 11, 2002, police secured a warrant to search Johnson’s vehicle. The warrant was executed on February 19, 2002, and twelve grams of crack cocaine were found in the console in the ceiling between the two front seats. Johnson also had 997 in cash in his pocket, and there was evidence that such an amount indicated that one was a dealer of crack cocaine, rather than merely a user.

        Johnson testified at trial, denying the drugs were his, and asserting that they were planted in his vehicle by someone else. He said that while he was visiting the home of his cousin, Marvin Johnson (“Marvin”), his vehicle was unattended and unlocked. Two witnesses testified that on the night of February 19, 2002, while Johnson was inside Marvin’s house, Cedric Bridges entered Johnson’s car and moved his hands around the area above the driver’s seat. One witness testified that, immediately afterward, Bridges gave the other witness a piece of crack cocaine, said that the two witnesses should split it, and not to say anything about it. Johnson also presented his own testimony, and that another of witness, to explain the presence of the money on his person.

        The trial court denied Johnson’s request to instruct the jury regarding the doctrine of “equal access” to the place where contraband is found. A majority of the Court of Appeals reversed, ruling that an “equal access” instruction should have been given. This Court granted the State’s petition for certiorari.1

        In its discussion of the equal access rule,2 the Court of Appeals quoted from Wilkerson v. State, 269 Ga.App. 190, 191-192(2), 603 S.E.2d 728 (2004):

        The equal access rule, as it applies in the automobile context, is merely that 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.

        Johnson, supra at 284-285, 617 S.E.2d 252 (Emphasis added). Although in its decision, the Court of Appeals relied upon precedent that the purpose of an equal access charge is to rebut the permissive presumption of exclusive possession by the owner or driver of a vehicle, in this case no such presumption arose; the jury was never instructed on any presumption of possession.

The Wilkerson quote accurately reflects the law; a charge on equal access is appropriate to counter a jury instruction on presumption of possession, and is not necessary otherwise.

        Equal access is merely a defense available to the accused to whom a presumption of possession flows. Where the State did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense. [Cit.]

        Thompson v. State, 234 Ga.App. 74, 77(3), 506 S.E.2d 201 (1998). This principle has been expressed in numerous appellate decisions. See, e.g., Mitchell v. State, 222 Ga. App. 453, 454(1)(b), 474 S.E.2d 306 (1996); Jackson v. State, 216 Ga.App. 842, 845(2), 456 S.E.2d 229 (1995); Jones v. State, 200 Ga. App. 519, 521(2)(c), 408 S.E.2d 823 (1991); Lance v. State, 191 Ga.App. 701, 703(2), 382 S.E.2d 726 (1989); Akins v. State, 184 Ga. App. 441(1), 361 S.E.2d 707 (1987); Castillo v. State, 166 Ga.App. 817, 822(2), 305 S.E.2d 629 (1983). See also Knighton v. State, 248 Ga. 199, 200 (n. 1), 282 S.E.2d 102 (1981), and Burdett v. State, 159 Ga.App. 394(2), 283 S.E.2d 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. Although evidence may have been introduced that satisfied the factual predicate for a presumption charge, none was given, and qualified jurors under oath are presumed to follow the instructions given by the trial court. Allen v. State, 277 Ga. 502, 504(3)(c),591 S.E.2d 784 (2004). Accordingly, no presumption arose.

        A requested jury charge must be “legal, apt and precisely adjusted to some principle involved in the case and be authorized by the evidence.” (Emphasis in original; punctuation omitted.) Lane v. State, 268 Ga. 678, 680(2), 492 S.E.2d 230 (1997). “A requested charge should be delivered if it is a correct statement of law that is pertinent and material to an issue in the case and not substantially covered by the charge actually given.” Pruitt v. State, 258 Ga. 583, 588, 373 S.E.2d 192 (1988). As no presumption arising from the presence of cocaine in Johnson’s vehicle was placed before the jury, there was nothing to make the rebuttal of an “equal access” charge material to Johnson’s trial.3

Further, the equal access language that the Court of Appeals evaluated, by its own terms, “applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle.” Johnson, supra at 285, 617 S.E.2d 252. And, it is not the case that Johnson’s ownership of the vehicle was the sole evidence of his possession of cocaine with intent to distribute. He had a large sum of cash on his person, consistent with a person being a dealer of crack cocaine.4 See Pittman v. State, 208 Ga.App. 211, 214-215(2), 430 S.E.2d 141 (1993). Johnson was also admittedly in Marvin’s home the night of Johnson’s arrest; Marvin was arrested for possession of crack cocaine with intent to distribute within a few months of Johnson’s arrest; there had been six arrests for crack cocaine “out of [Marvin’s] house” in the year preceding trial, and “40 or 50” arrests within 50 yards of his house in the “last few years” before Johnson’s trial. As ownership of the vehicle was not the sole evidence of Johnson’s possession of crack cocaine with intent to distribute, an equal access instruction was not warranted. Wilkerson, supra at 192, 603 S.E.2d 728.

        Judgment reversed.

        All the Justices concur except BENHAM, J., who dissents.

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Notes:

  1.  Further facts can be found in the opinion of the Court of Appeals. Johnson, supra.
  2.  Johnson submitted his request for a jury instruction on equal access by filing a document that requested that the trial court give the “charges from the Uniform Jury Charges listed in Exhibit `A'”; included in Exhibit “A” was simply the text: “Equal Access — page 136.” No further elucidation concerning the language of the instruction requested appears in the record; we note that the State submitted its requests for jury instructions in a similar manner. The Court of Appeals did not address any issue concerning this procedure, and our grant of certiorari does not encompass consideration of whether this request for jury instruction satisfies Uniform Superior Court Rule 10.3, or complies with the stricture that to warrant appellate review, requests for jury instructions must be written. See Burger v. State, 245 Ga. 458, 459(5), 265 S.E.2d 796 (1980). In any event, the Court of Appeals addressed language from Wilkerson v. State, 269 Ga.App. 190, 191-192(2), 603 S.E.2d 728 (2004), and we will address the Court of Appeals’s analysis of that language.
  3.  The Court of Appeals’s opinion addresses the issue of whether “equal access” was Johnson’s “sole defense,” requiring that the jury be instructed on the principle. Tarvestad v. State, 261 Ga. 605, 606,409 S.E.2d 513 (1991). The parties also address this issue in this Court. However, we believe this discussion misses the mark. First, determination of whether a legal concept is a defendant’s sole defense most properly relates to whether a trial court must sua sponte instruct the jury on the defense. See Smith v. State, 279 Ga. 172, 174(2), 611 S.E.2d 1 (2005). When, as in this case, a request for a jury instruction is submitted to the court, the preliminary question must be whether the requested charge is appropriate. Second, “equal access” was not Johnson’s sole defense; properly viewed, his defense was that the State did not prove the elements of the crime of which he was charged, possession of cocaine with intent to distribute, and without knowledge of the presence of cocaine in his vehicle, he could have no intent concerning it. Id.
  4.  Johnson asserts that he explained his possession of the money. However, his evidence in explanation did not eliminate the State’s evidence, it simply created a question of fact for the jury’s resolution; the jury was free to reject Johnson’s evidence and conclude that possession of 997 in cash was additional evidence of Johnson’s possession of cocaine with intent to distribute. See Conaway v. State, 277 Ga., 422, 423(1), 589 S.E.2d 108 (2003).

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