Caseflicks

Court of Appeals of Georgia • 2008

Kier v. State

663 S.E.2d 832 | 292 Ga. App. 208 | 2008 Fulton County D. Rep. 2243 | 2008 Ga. App. LEXIS 739

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Takeaway

In short, this case holds that a passenger’s proximity to marijuana in a vehicle, without evidence linking her to its control or possession, cannot support a conviction for constructive possession.

Background

During a traffic stop, Sergeant Zack Tanner smelled marijuana and saw smoke inside a car driven by Cory Dixon. A juvenile sat in the front passenger seat, while Lavashiae Kier and Chiquita Baker sat in the rear. Police found crack cocaine in the driver’s-door compartment, arrested Dixon, and directed the passengers to leave the car. Officers then found a recently smoked, hand-rolled marijuana cigarette on the rear floorboard behind the center console. Tanner arrested all three passengers for marijuana possession.

At Kier’s bench trial, Baker testified that Dixon and the juvenile had smoked marijuana during the ride and disposed of their cigarette when police stopped the car. Baker also testified that Kier did not smoke with them, did not know Baker was carrying marijuana, and was never seen with marijuana that night. Tanner acknowledged that the juvenile appeared to have rolled the cigarette; marijuana residue was found on the front passenger seat and floor, but not near Kier, on her seat, or on her person. Kier had no paraphernalia. The trial court convicted Kier of possessing less than one ounce of marijuana. She appealed, challenging the sufficiency of the evidence and also raising Sixth Amendment claims concerning a continuance and an incarcerated witness.

Issues

Issue #1

Whether the evidence was sufficient to prove beyond a reasonable doubt that Kier constructively possessed the marijuana cigarette.

Holding

No. The State proved only Kier’s proximity to the marijuana, not a sufficient connection showing that she knowingly had the power and intent to control it.

Reasoning

Because no witness saw Kier actually possess the cigarette, the State’s case depended entirely on constructive possession. Constructive possession requires more than being near contraband: the State had to prove that Kier knowingly had both the power and the intention to exercise control over the marijuana.

The record contained none of the surrounding circumstances that could support an inference of Kier’s intent to control the drug. There was no evidence that she fled, resisted, acted suspiciously, gave inconsistent explanations, appeared intoxicated, possessed cash or paraphernalia associated with drugs, or had marijuana residue on her body or in her seating area.

The evidence instead pointed away from Kier. Tanner testified that the juvenile in the front passenger seat appeared to have rolled the cigarette, and residue was located on the floor and the front passenger seat rather than near Kier. Baker’s testimony further supported the innocent explanation that Kier was merely a rear-seat passenger while Dixon and the juvenile smoked marijuana.

When constructive possession rests wholly on circumstantial evidence, Georgia law requires the proved facts to exclude every reasonable hypothesis other than guilt. The evidence was equally consistent with Kier’s innocent hypothesis that she had no involvement with the cigarette. Mere presence in a car where marijuana is found does not create a presumption of possession, even if the contraband is nearby.

The same evidence also could not establish that Kier was a party to another person’s possession. Without evidence connecting her to the marijuana or showing participation in its possession, the conviction could not stand.