equal access rule in Georgia

2017As the Supreme Court held in State v. Johnson, 280 Ga. 511, 513 ( 630 SE2d 377 ) (2006), even if evidence presented by the State gives rise to the presumption, the trial court must instruct the jury as to the presumption of possession arising from the defendant’s control of the vehicle before it can properly instruct the jury as to the equal access defense.

2017As the Supreme Court held in State v. Johnson, 280 Ga. 511, 513 ( 630 SE2d 377 ) (2006), even if evidence presented by the State gives rise to the presumption, the trial court must instruct the jury as to the presumption of possession arising from the defendant’s control of the vehicle before it can properly instruct the jury as to the equal access defense.

2008See Doyal v. State, 287 Ga. App. 667, 672 (8) ( 653 SE2d 52 ) (2007); Lance v. State, 191 Ga. App. 701, 703 (2) ( 382 SE2d 726 ) (1989) (“when the trial judge elects not to charge the court on the presumption of possession, an equal access instruction is not required”).

2008See Doyal v. State, 287 Ga. App. 667, 672 (8) ( 653 SE2d 52 ) (2007); Lance v. State, 191 Ga. App. 701, 703 (2) ( 382 SE2d 726 ) (1989) (“when the trial judge elects not to charge the court on the presumption of possession, an equal access instruction is not required”).

2006This 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.

2006This 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.

1989The jury was charged inter alia on the principles of circumstantial evidence, reasonable doubt, actual and constructive possession, joint possession, and that mere presence at the scene of the crime will not support conviction. “ ‘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 o

1989The jury was charged inter alia on the principles of circumstantial evidence, reasonable doubt, actual and constructive possession, joint possession, and that mere presence at the scene of the crime will not support conviction. “ ‘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 o

2011See generally Farmer v. State, 152 Ga. App. 792, 794-97 ( 264 SE2d 235 ) (1979) (providing in-depth explanation for proper application of the equal-access rule to rebut presumption of possession). 28 Ramirez v. State, 290 Ga. App. 3, 4-5 (1) ( 658 SE2d 790 ) (2008) (“[When] the driver and passengers are charged with joint constructive possession of contraband found in the vehicle, the state may rely on the presumption to show that the driver exercised possession and control over the contraband, but the driver is not entitled to rely on the equal access rule to rebut the presumption.”); see als

2011See generally Farmer v. State, 152 Ga. App. 792, 794-97 ( 264 SE2d 235 ) (1979) (providing in-depth explanation for proper application of the equal-access rule to rebut presumption of possession). 28 Ramirez v. State, 290 Ga. App. 3, 4-5 (1) ( 658 SE2d 790 ) (2008) (“[When] the driver and passengers are charged with joint constructive possession of contraband found in the vehicle, the state may rely on the presumption to show that the driver exercised possession and control over the contraband, but the driver is not entitled to rely on the equal access rule to rebut the presumption.”); see als

2004“The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had recently been used by others, 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).

2004“The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had recently been used by others, 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).

2017Cochran v. State, 190 Ga. App. 884, 885-886 (1) ( 380 SE2d 319 ) (1989) (physical precedent only).

2017Cochran v. State, 190 Ga. App. 884, 885-886 (1) ( 380 SE2d 319 ) (1989) (physical precedent only).

2005"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." (Citations and punctuation omitted.) Lombardo v. State, 187 Ga.App. 440, 442 (5), 370 S.E.2d 503 (1988).

2005"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." (Citations and punctuation omitted.) Lombardo v. State, 187 Ga.App. 440, 442 (5), 370 S.E.2d 503 (1988).

2014(Citations and punctuation omitted; emphasis supplied.) Id. at 4 (1); see also Gamble v. State, 223 Ga. App. 653, 655 (1) ( 478 SE2d 455 ) (1996) (“The equal access doctrine does not apply to those charged with being in joint constructive possession of contraband.”) (citation omitted).

2014(Citations and punctuation omitted; emphasis supplied.) Id. at 4 (1); see also Gamble v. State, 223 Ga. App. 653, 655 (1) ( 478 SE2d 455 ) (1996) (“The equal access doctrine does not apply to those charged with being in joint constructive possession of contraband.”) (citation omitted).

2006Where 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 SE2d 201 ) (1998).

2006Where 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 SE2d 201 ) (1998).

2010Cochran v. State, 190 Ga. App. 884, 885-886 (1) ( 380 SE2d 319 ) (1989); *68 Mobley v. State, 190 Ga. App. 771, 772 (1) ( 380 SE2d 290 ) (1989).

2010Cochran v. State, 190 Ga. App. 884, 885-886 (1) ( 380 SE2d 319 ) (1989); *68 Mobley v. State, 190 Ga. App. 771, 772 (1) ( 380 SE2d 290 ) (1989).

1999See also Jackson v. State, 216 Ga. App. 842, 845 ( 456 SE2d 229 ) (1995) (the equal access rule is simply a defense to the accused to whom a presumption of possession flows).

1999See also Jackson v. State, 216 Ga. App. 842, 845 ( 456 SE2d 229 ) (1995) (the equal access rule is simply a defense to the accused to whom a presumption of possession flows).

1993Therefore, we find no reversible error in the trial court’s failure to charge the equal access rule.” (Emphasis supplied.) Wright v. State, 194 Ga. App. 739, 741 (2) ( 391 SE2d 791 ) (1990); see also Lance v. State, 191 Ga. App. 701 (2) ( 382 SE2d 726 ) (1989).

1993Therefore, we find no reversible error in the trial court’s failure to charge the equal access rule.” (Emphasis supplied.) Wright v. State, 194 Ga. App. 739, 741 (2) ( 391 SE2d 791 ) (1990); see also Lance v. State, 191 Ga. App. 701 (2) ( 382 SE2d 726 ) (1989).

1980The equal access rule applies to contraband that is for the most part in "open, notorious and easily accessible areas.” Kenerleber v. State, 137 Ga. App. 618 ( 224 SE2d 476 ) (1976).

1980The equal access rule applies to contraband that is for the most part in "open, notorious and easily accessible areas.” Kenerleber v. State, 137 Ga. App. 618 ( 224 SE2d 476 ) (1976).

2019And while this presumption may be rebutted by showing that *102 others had access to the premises, the equal-access doctrine "applies to rebut the presumption of possession only where the sole evidence of possession of contraband found on the premises is the defendant's ownership or possession of the premises." (Citation and punctuation omitted; emphasis in original.) Id. at 440 (1), 669 S.E.2d 453 .

2012However, Jones’ reliance on the equal access rule to rebut the presumption that he possessed the drugs found in his residence is misplaced because “the equal access doctrine applies to rebut the presumption of possession only where the sole evidence of possession of contraband found on the premises is the defendant’s ownership or possession of the premises.” (Citation omitted.) Bailey v. State, 294 Ga. App. 437, 440 (1) ( 669 SE2d 453 ) (2008).

2002But even if the equal access rule might be applicable in this case, under this doctrine "merely finding contraband in a car occupied by defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime." (Citations and punctuation omitted.) Fears, supra at 173 (1), 312 S.E.2d 174 .

1996See Fears v. State, 169 Ga. App. 172 (1) ( 312 SE2d 174 ) (1983).

1989The equal access rule does not apply, and no charge regarding the rule need be given, when the “contraband is not in an open, notorious and equally accessible area.” Manbeck v. State, 165 Ga. App. 625 (3) ( 302 SE2d 361 ).

1989The equal access rule does not apply, and no charge regarding the rule need be given, when the “contraband is not in an open, notorious and equally accessible area.” Manbeck v. State, 165 Ga. App. 625 (3) ( 302 SE2d 361 ).

2012“The equal access defense . . . is based on the rule that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” (Citation and punctuation omitted.) Castillo v. State, 288 Ga. App. 828, 829 ( 655 SE2d 695 ) (2007).

2012“The equal access defense . . . is based on the rule that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” (Citation and punctuation omitted.) Castillo v. State, 288 Ga. App. 828, 829 ( 655 SE2d 695 ) (2007).

2007Castillo asserts that because there were several people, including her co-defendants, living in the apartment at the time police conducted their search, the drugs could have belonged to any of them and, under the equal access rule, the State failed to prove possession. *830 The equal access defense relied upon by Castillo is “based on the rule that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” Andrews v. State,

2007Castillo asserts that because there were several people, including her co-defendants, living in the apartment at the time police conducted their search, the drugs could have belonged to any of them and, under the equal access rule, the State failed to prove possession. *830 The equal access defense relied upon by Castillo is “based on the rule that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” Andrews v. State,

2008Thus, in cases where the driver and passengers are charged with joint constructive possession of contraband found in the vehicle, the state may rely on the presumption to show that the driver exercised possession and control over the contraband, but the driver is not *5 entitled to rely on the equal access rule to rebut the presumption. 2 See Davis, 270 Ga. App. at 779 ; Taylor, 263 Ga. App. at 422 (1); Mendez, 185 Ga. App. at 1-2 (1); Robinson, 175 Ga. App. at 772 (2).

1989Nor did the trial court err in refusing to charge on the doctrine of equal access. “[T]he equal access doctrine does not apply where the defendants are alleged to have joint. . . possession of the contraband, as was the case here.” Howard v. State, 185 Ga. App. 215, 216 ( 363 SE2d 621 ) (1987), citing Robinson v. State, 175 Ga. App. 769, 772 (2) ( 334 SE2d 358 ) (1985).

2000For the equal access rule to rebut the inference of defendant’s possession of contraband, affirmative evidence must be presented that a person other than the defendant had equal access to the premises where the contraband was found. *719 (Citations, punctuation and emphasis omitted.) Nelson v. State, 199 Ga. App. 487, 488 (1) ( 405 SE2d 310 ) (1991). . . .

2000For the equal access rule to rebut the inference of defendant’s possession of contraband, affirmative evidence must be presented that a person other than the defendant had equal access to the premises where the contraband was found. *719 (Citations, punctuation and emphasis omitted.) Nelson v. State, 199 Ga. App. 487, 488 (1) ( 405 SE2d 310 ) (1991). . . .

1989Further, we pointed out in Robinson that the equal access doctrine does not apply where the defendants are alleged to have joint constructive possession of the contraband, as was the case here.’ Howard v. State, 185 Ga. App. 215, 216 (2) ( 363 SE2d 621 ) (1987).” Breedlove v. State, 189 Ga. App. 527, 528 ( 376 SE2d 222 ) (1988).

1989Further, we pointed out in Robinson that the equal access doctrine does not apply where the defendants are alleged to have joint constructive possession of the contraband, as was the case here.’ Howard v. State, 185 Ga. App. 215, 216 (2) ( 363 SE2d 621 ) (1987).” Breedlove v. State, 189 Ga. App. 527, 528 ( 376 SE2d 222 ) (1988).

1987See also Heaton v. State, 139 Ga. App. 83, 84 ( 227 SE2d 854 ).” Hendrixson v. State, 167 Ga. App. 517, 519 (4), supra. Consequently, since the equal access rule is not applicable in the case sub judice, we find that there was sufficient evidence presented from which a rational trier of fact could find defendant guilty beyond a reasonable doubt of the crime, manufacturing marijuana.

1984We note that the equal access rule generally does not apply to cases involving marijuana plants growing on the land outside the owner’s or lessee’s residence, on the basis that such contraband is stationary and requires “a period of months to grow, mature, and be harvested.” Goode v. State, 130 Ga. App. 791, 792 ( 204 SE2d 526 ) (1974); accord Hendrixson v. State, 167 Ga. App. 517, 519 ( 306 SE2d 350 ) (1983).

1995Because (in the case sub judice) 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.)' Akins v. State, 184 Ga.App. 441 (1) ( 361 SE2d 707 ) (1987)." Bowen v. State, 203 Ga.App. 371 (1), 417 S.E.2d 18 (1992).

1995Because (in the case sub judice) 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.)' Akins v. State, 184 Ga.App. 441 (1) ( 361 SE2d 707 ) (1987)." Bowen v. State, 203 Ga.App. 371 (1), 417 S.E.2d 18 (1992).

2008Thus, in cases where the driver and passengers are charged with joint constructive possession of contraband found in the vehicle, the state may rely on the presumption to show that the driver exercised possession and control over the contraband, but the driver is not *5 entitled to rely on the equal access rule to rebut the presumption. 2 See Davis, 270 Ga. App. at 779 ; Taylor, 263 Ga. App. at 422 (1); Mendez, 185 Ga. App. at 1-2 (1); Robinson, 175 Ga. App. at 772 (2).

1989The jury was charged inter alia on the principles of circumstantial evidence, reasonable doubt, actual and constructive possession, joint possession, and that mere presence at the scene of the crime will not support conviction. “ ‘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 o

1991As to the majority's contention that the particular charge requested by appellant was confusing or misleading, to the contrary, appellant's charge was patterned after the charge given in Gee v. State, 130 Ga. App. 634 (2) ( 204 SE2d 329 ) (1974), which was upheld by this court as a proper equal access instruction.

1991As to the majority's contention that the particular charge requested by appellant was confusing or misleading, to the contrary, appellant's charge was patterned after the charge given in Gee v. State, 130 Ga. App. 634 (2) ( 204 SE2d 329 ) (1974), which was upheld by this court as a proper equal access instruction.

2001This equal access rule, however, generally applies to areas which are “open, notorious!,] and easily accessible to other persons.” Cantrell v. State, 204 Ga. App. at 331 .

1993Generally, the equal access rule applies “to areas which are open, notorious and easily accessible to other persons.” Cantrell v. State, 204 Ga. App. 330, 331 ( 419 SE2d 141 ) (1992).