Wilkerson v. State, 603 S.E.2d 728 (Ga. Ct. App. 2004). · Go Syfert
Wilkerson v. State, 603 S.E.2d 728 (Ga. Ct. App. 2004). Cases Citing This Book View Copy Cite
53 citation events (53 in the last 25 years) across 2 distinct courts.
Strongest positive: Maddox v. State (gactapp, 2013-07-11)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
discussed Cited as authority (rule) Maddox v. State
Ga. Ct. App. · 2013 · confidence medium
State v. Johnson, 280 Ga. 511, 512-513 ( 630 SE2d 377 ) (2006) (citation, punctuation and emphasis omitted); Wilkerson v. State, 269 Ga. App. 190, 191-192 ( 603 SE2d 728 ) (2004); compare Thompson v. State, 234 Ga. App. 74, 77 ( 506 SE2d 201 ) (1998) (no error in refusing passenger’s request to instruct jury on rebuttable presumption that driver had exclusive possession of contraband, and on equal access, where instructions not supported by the evidence). 1.
discussed Cited as authority (rule) Marquis Maddox v. State
Ga. Ct. App. · 2013 · confidence medium
State v. Johnson, 280 Ga. 511, 512-513 ( 630 SE2d 377 ) (2006) (emphasis, punctuation, and citation omitted); Wilkerson v. State, 269 Ga. App. 190, 191-192 ( 603 SE2d 728 ) (2004); compare Thompson v. State, 234 Ga. App. 74, 77 ( 506 SE2d 201 ) (1998) (no error in refusing passenger’s request to instruct jury on rebuttable presumption that driver had exclusive possession 5 of contraband, and on equal access, where instructions not supported by the evidence). 1.
discussed Cited as authority (rule) Mangum v. State
Ga. Ct. App. · 2011 · confidence medium
Issues regarding the credibility of witnesses are in the sole province of the jury and only the jury may analyze what weight will be given each witness’s testimony.” (punctuation omitted)). 10 See, e.g., Cochran, 190 Ga. App. at 886 (1) (“Whether the evidence of equal access is sufficient to rebut any inference of possession is a question properly left to the jury.” (punctuation omitted)). 11 See, e.g., Wilkerson v. State, 269 Ga. App. 190, 193 (2) ( 603 SE2d 728 ) (2004); Causey v. State, 274 Ga. App. 506, 507-08 ( 618 SE2d 127 ) (2005); Davis, 272 Ga. App. at 34 ; Cochran, 190 Ga. Ap…
cited Cited as authority (rule) Hill v. State
Ga. Ct. App. · 2010 · confidence medium
See State v. Johnson, 280 Ga. 511, 512-513 ( 630 SE2d 377 ) (2006); Wilkerson v. State, 269 Ga. App. 190, 191-192 (2) ( 603 SE2d 728 ) (2004).
discussed Cited as authority (rule) Clewis v. State
Ga. Ct. App. · 2008 · confidence medium
Miller and Ellington, JJ., concur. 1 OCGA § 16-13-30 (a). 2 OCGA § 16-12-100 (b) (8). 3 Short v. State, 234 Ga. App. 633, 634 (1) ( 507 SE2d 514 ) (1998). 4 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 5 Uriostegui v. State, 269 Ga. App. 51, 53 ( 603 SE2d 478 ) (2004). 6 Lopez v. State, 259 Ga. App. 720, 722 (1) ( 578 SE2d 304 ) (2003). 7 Maxwell v. State, 238 Ga. App. 197, 198-199 (1) ( 518 SE2d 432 ) (1999). 8 Waters v. State, 280 Ga. App. 566, 567-568 ( 634 SE2d 508 ) (2006). 9 Ramirez v. State, 290 Ga. App. 3, 4-5 (1) ( 658 SE2d 790 ) (2008). 10 Jackson v. State, …
cited Cited as authority (rule) Prather v. State
Ga. Ct. App. · 2008 · confidence medium
(Citation omitted.) Wilkerson v. State, 269 Ga. App. 190, 191-192 (2) ( 603 SE2d 728 ) (2004).
discussed Cited as authority (rule) Small v. State
Ga. Ct. App. · 2007 · confidence medium
Johnson, P. J., and Mikell, J., concur. 1 Goodroe v. State, 224 Ga. App. 378, 379 (1) ( 480 SE2d 378 ) (1997). 2 Kentucky v. Stincer, 482 U. S. 730, 744, n. 17 (107 SC 2658, 96 LE2d 631) (1987). 3 See Goodroe, supra. 4 Wilkerson v. State, 269 Ga. App. 190, 193 (3) ( 603 SE2d 728 ) (2004) (citations and punctuation omitted). 5 See Huff v. State, 274 Ga. 110, 111-112 (2) ( 549 SE2d 370 ) (2001). 6 Robertson v. State, 280 Ga. 885, 886 ( 635 SE2d 138 ) (2006). 7 Wilkerson, supra.
discussed Cited as authority (rule) State v. Johnson (2×)
Ga. · 2006 · confidence medium
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 SE2d 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.
discussed Cited as authority (rule) Patten v. State
Ga. Ct. App. · 2005 · confidence medium
Thus, pursuant to Court of Appeals Rule 25 (b) (1), the State has “consentfed] to a decision based on the appellant’s statement of facts.” Thus, we treat Patten’s facts as true. 2 See, e.g., Allen v. State, 273 Ga. App. 227, 230 (2) (b) ( 614 SE2d 857 ) (2005) (severance); Cummings v. State, 272 Ga. App. 886, 888 (1) ( 614 SE2d 121 ) (2005) (evidentiary ruling); Walker v. State, 258 Ga. App. 333, 335 (1) ( 574 SE2d 400 ) (2002) (voir dire); Davitt v. State, 257 Ga. App. 384, 385 (1) ( 571 SE2d 427 ) (2002) (improper questioning of witness). 3 See Lynd v. State, 262 Ga. 58, 61, n. 2 ( 4…
discussed Cited as authority (rule) Kirby v. State
Ga. Ct. App. · 2005 · confidence medium
However, careful review of the record makes clear that Shinall did not see Kirby until after he knocked on the door. 6 See Wilkerson v. State, 269 Ga. App. 190, 191 (2) ( 603 SE2d 728 ) (2004); Hill v. State, 253 Ga. App. 658, 659 (1) ( 560 SE2d 88 ) (2002). 7 See id. 8 See Blaylock v. State, 242 Ga. App. 195, 197 ( 529 SE2d 203 ) (2000) (“[test] results showing the presence of cocaine in [a] defendant’s system [are] ‘admissible as part of the res gestae and as circumstantial evidence that [the defendant] was involved in drug activity’ ”). 9 See Meridy v. State, 265 Ga. App. 440, 441…
discussed Cited as authority (rule) Causey v. State
Ga. Ct. App. · 2005 · confidence medium
Andrews, P. J., and Mikell, J., concur. 1 Henderson v. State, 191 Ga. App. 275, 276 (1) (a) ( 381 SE2d 423 ) (1989) (citations, punctuation and emphasis omitted). 2 Knox v. State, 216 Ga. App. 90, 92 (3) ( 453 SE2d 120 ) (1995) (citations and punctuation omitted). 3 Davis v. State, 146 Ga. App. 629, 629-630 (2) ( 247 SE2d 210 ) (1978) (citation and punctuation omitted). 4 Wilkerson v. State, 269 Ga. App. 190,192 (2) ( 603 SE2d 728 ) (2004) (citation, punctuation and emphasis omitted). 5 Davis v. State, 272 Ga. App. 33, 34 ( 611 SE2d 710 ) (2005) (citations omitted). 6 Swanger v. State, 251 Ga.…
discussed Cited as authority (rule) Johnson v. State (2×)
Ga. Ct. App. · 2005 · confidence medium
NOTES [1] OCGA § 24-4-6. [2] See Harris v. State, 223 Ga.App. 661, 663 , 478 S.E.2d 458 (1996). [3] Singleton v. State, 194 Ga.App. 5, 6 , 389 S.E.2d 496 (1989) (citation and punctuation omitted). [4] Id. [5] Id. [6] Id. [7] Id. at 5 , 389 S.E.2d 496 . [8] Id. at 5-6 , 389 S.E.2d 496 (citations and punctuation omitted). [9] See id. at 7 , 389 S.E.2d 496 . [10] Wilkerson v. State, 269 Ga.App. 190, 191 (2), 603 S.E.2d 728 (2004). [11] Id. [12] Id. at 191-192 , 603 S.E.2d 728 (citation omitted). [13] Id. at 192 , 603 S.E.2d 728 (citation, punctuation and emphasis omitted). [14] Tarvestad v. Stat…
cited Cited as authority (rule) Davis v. State
Ga. Ct. App. · 2005 · confidence medium
(Citation and punctuation omitted.) Wilkerson v. State, 269 Ga. App. 190, 191-192 (2) ( 603 SE2d 728 ) (2004).
discussed Cited "see" Toby T. Copeland v. State (2×)
Ga. Ct. App. · 2014 · signal: see · confidence high
See Wilkerson v. State, 269 Ga. App. 190, 191-192 (2) ( 603 SE2d 728 ) (2004) (presumption of constructive possession arising 7 from ownership or control of the premises can be overcome by evidence that other persons had equal access to the contraband found there).
discussed Cited "see" Copeland v. State (2×)
Ga. Ct. App. · 2014 · signal: see · confidence high
See Wilkerson v. State, 269 Ga. App. 190, 191-192 (2) ( 603 SE2d 728 ) (2004) (presumption of constructive possession arising from ownership or control of the premises can be overcome by evidence that other persons had equal access to the contraband found there).
discussed Cited "see" Dickerson v. State (2×)
Ga. Ct. App. · 2011 · signal: see · confidence high
See Wilkerson v. State, 269 Ga. App. 190, 191-192 (2) ( 603 SE2d 728 ) (2004).
examined Cited "see" Bailey v. State (3×)
Ga. Ct. App. · 2011 · signal: see · confidence high
See Wilkerson v. State, 269 Ga. App. 190, 191-192 (2) ( 603 SE2d 728 ) (2004).
discussed Cited "see" Arellano v. State (2×)
Ga. Ct. App. · 2008 · signal: see · confidence high
See Wilkerson v. State, 269 Ga. App. 190, 192-193 (2) ( 603 SE2d 728 ) (2004) (speculation that others had equal access to car did not undermine conviction, particularly where defendant drove evasively when confronted by police).
Retrieving the full opinion text from the archive…
Wilkerson
v.
the State
A04A1117.
Court of Appeals of Georgia.
Aug 20, 2004.
603 S.E.2d 728
2004 Ga. App. LEXIS 1114
Chestley N. Merritt, for appellant., Tom Durden, District Attorney, Henry P. Smith, Assistant District Attorney, for appellee.
Adams, Ruffin, Eldridge.
Cited by 19 opinions  |  Published
Adams, Judge.

Marvin Wilkerson, Sr. was convicted of trafficking cocaine, driving with an expired license tag, and driving with a suspended license.

Construed in favor of the verdict, the evidence shows that Wilkerson was driving his son’s car on February 9, 2001, with two passengers, when a police officer decided to stop him for driving with an expired license tag. (The car was registered to a man named Malcom Harper, but he had recently sold it to Wilkerson’s son.) Co-defendant Smiley was in the front seat. A 14-year-old girl was in the back seat. In response to the blue lights and siren, Wilkerson drove in a way that suggested he might not comply. After Wilkerson stopped, he twice moved his car when the officer started to get out of the patrol car, and so, the officer called for backup. Next Wilkerson was unable to produce a driver’s license and proof of insurance, and, although he gave his correct name, Wilkerson gave a false birth date to the officer. When challenged about his age, he gave the correct date and stated that his license had been suspended. After confirming the information, the officer arrested Wilkerson for driving with a suspended license.

Because neither passenger was licensed to drive and because Wilkerson told the officer that he had no one to take possession of the car, the officer impounded the vehicle. A second officer immediately began an inventory, during which the officer found a container in the trunk, in which he found suspected contraband. Drug agents were called to the scene, who then, acting on probable cause to search,[*191] searched the car again and found what turned out to be 73.2 grams of 40 percent pure cocaine as well as a small amount of marijuana.

1. Wilkerson first contends that the trial court should have granted his motion to suppress. “Atrial court’s order on a motion to suppress will not be disturbed if there is any evidence to support it____” Hobdy v. State, 222 Ga. App. 625-626 (475 SE2d 686) (1996).

Wilkerson contends that the car was not properly inventoried. He argues that the initial inventory search was invalid because the officer did not follow the applicable procedures found in the Hines-ville Police Department’s Standard Operating Procedure in that the inventory was not concluded but rather interrupted when the contraband was initially found. But Wilkerson has failed to supply any authority for this proposition. And, we fail to see how Wilkerson’s rights could have been violated by the officer’s action of terminating the initial inventory in order to call in drug agents, when, even as Wilkerson admits, the officer’s actions up to that point were proper. See also Staley v. State, 224 Ga. App. 806, 807-808 (482 SE2d 459) (1997).

2. Wilkerson contends that the evidence was insufficient to support the verdict for trafficking cocaine because there was no evidence linking him to the cocaine found in the trunk. Indeed, an officer admitted that nothing was found that tied Smiley to the contraband. No inventory was ever completed on the contents of the car, and thus nothing else was found therein that could be associated with Wilkerson. The clothes found in the trunk were never identified, and they were eventually disposed of. And officers attempted to get fingerprints from the container that held the cocaine but were unable to do so.

Nevertheless, there is a presumption that the driver is in possession of the contents of a vehicle:

In the absence of any circumstances to the contrary, a presumption arises from proof of ownership and control of premises, an automobile, or other property that the owner is in control and possession of contraband found therein. This rule is equally applicable to an automobile in which the accused is only the driver or in possession of the vehicle.

(Citations and punctuation omitted; emphasis in original.) Henderson v. State, 191 Ga. App. 275, 276 (1) (a) (381 SE2d 423) (1989). That presumption may be overcome by operation of the equal access rule:

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[*192] 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.

(Citations and punctuation omitted.) Knox v. State, 216 Ga. App. 90, 92 (3) (453 SE2d 120) (1995). The rule “applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle — ” (Citations and punctuation omitted; emphasis in original.) Pittman v. State, 208 Ga. App. 211, 214 (2) (430 SE2d 141) (1993). “Whether the evidence of equal access is sufficient to rebut any inference of possession ... is a question properly left to the jury. [Cit.]” Ramsay v. State, 175 Ga. App. 97, 99 (7) (332 SE2d 390) (1985).

In this case, evidence was presented, upon which the jury was allowed to rely, to show that none of the possible parties involved had equal access to the contents of the trunk. Harper testified that he sold the car to Wilkerson’s son on about January 20,2001, and he testified that the drugs were not his. Wilkerson said that his son was out of town, and no evidence was presented that his son had recently had access to the trunk of the car. The 14-year-old girl was in the car because she had missed her bus to school and she had been picked up for a ride because she knew Smiley. She did not look in the trunk before getting in the car, there was no testimony that the trunk was opened while she was in the car, and she denied that the contraband was hers. See Petty v. State, 221 Ga. App. 125, 126 (470 SE2d 517) (1996) (testimony from passengers that cocaine found in car did not belong to them “was circumstantial evidence from which the jury could infer that the cocaine must have belonged to [the driver]”).

That leaves Smiley. Although Smiley told an officer that he did not know anything about the drugs in the trunk, Smiley did not testify; rather, one of the officers testified to Smiley’s statement. But even if the statement was inadmissible hearsay, [1] there is “only mere speculation that other [passengers] may have had equal access to the [trunk] of the car.” (Emphasis in original.) Cochran v. State, 190 Ga. App. 884, 886 (1) (380 SE2d 319) (1989). Wilkerson was driving and therefore had the key to the car and control of the entire vehicle including the trunk; there is no evidence that Smiley did. [2] And,[*193] Wilkerson drove evasively after the officer attempted the stop. Evasive conduct during a traffic stop is one fact from which criminal intent maybe inferred. Jones v. State, 225 Ga. App. 673, 674-675 (484 SE2d 702) (1997). There being no unrebutted affirmative evidence demanding a finding of equal access, a rational trier of fact was authorized to find Wilkerson guilty of trafficking in cocaine. See generally Cochran, 190 Ga. App. at 886. See also Bruce v. State, 191 Ga. App. 580, 582 (382 SE2d 367) (1989) (no indication that person from whom defendant rented truck ever had access to the vehicle).

Decided August 20, 2004. Chestley N. Merritt, for appellant. Tom Durden, District Attorney, Henry P. Smith, Assistant District Attorney, for appellee.

3. Wilkerson contends that the trial court committed error by sentencing him on the two misdemeanor counts during his absence. The transcript shows that Wilkerson was present when the court sentenced him for trafficking cocaine but that the court failed to sentence him on the other two counts at that time. The court apparently later entered sentences on those two counts of twelve months to serve concurrently with his twelve-year (to serve) felony conviction.

“A criminal defendant has the right to be present during all portions of his or her trial, and a defendant’s absence during a critical stage of those trial proceedings, absent a waiver of the defendant’s right to be present, is not subject to harmless error analysis. [Cit.]” King v. State, 273 Ga. 258, 264 (15) (539 SE2d 783) (2000). Sentencing is a critical stage of a criminal proceeding. See Gardner v. Florida, 430 U. S. 349, 358 (97 SC 1197, 51 LE2d 393) (1977); Golden v. Newsome, 755 F2d 1478, 1483 (11th Cir. 1985); Green v. State, 194 Ga. App. 343, 346-347 (390 SE2d 285) (1990), aff’d, 260 Ga. 625 (398 SE2d 360) (1990).

But here, Wilkerson was present for the entire sentencing hearing when the information relied upon by the court for its sentencing decision was presented. He had an opportunity to present evidence and did so, raised no objection at the completion of the hearing, and was made aware of the sentence before any appellate deadlines passed. We conclude that Wilkerson was present for sentencing sufficient to satisfy the demands of due process.

Judgment affirmed.

Ruffin, P. J., and Eldridge, J., concur.
1

Any objection based on Bruton v. United States, 391 U. S. 123, 136-137 (88 SC 1620, 20 LE2d 476) (1968), was waived when the defendant did not object to this testimony when it was elicited at trial. See, e.g., Mason v. State, 262 Ga. App. 383, 384 (2) (585 SE2d 673) (2003).

2

Indeed, the trial court granted a directed verdict in Smiley’s favor on the cocaine charge because the State had not shown that Smiley had access to the cocaine.