Lush v. State , 168 Ga. App. 740 ( 1983 )

Birdsong, Judge,

dissenting.

I fully agree and therefore concur with the first eight divisions of the majority opinion dealing with the enumerations of error raised by the appellant Lush. However, for the reasons stated hereinafter, I cannot shred the mantle of innocence covering the appellant Flake in view of the legal principles arising from the facts disclosed by this record. Accordingly as to the last division, I most respectfully dissent.

Uncontradicted testimony established that from early February until late March, after Flake’s grandmother suffered a stroke, the grandmother either was hospitalized or confined to her home. During those several weeks, Flake spent much time nursing her grandmother, both in the hospital and after the grandmother’s return, in her home in Atlanta. Flake testified that she would spend four or five days nursing her grandmother and would be relieved by a sister for a day or two so she could return to her apartment and prepare herself for the next nursing vigil. Thus Flake spent only part of her time in the apartment in Acworth during that several week period. Though the landlord testified he frequently saw both Lush and Flake in and about the apartment, he also testified that he was aware Flake was away nursing her grandmother and possibly was in Atlanta a good deal of that time. Further uncontradicted evidence by Flake showed that she had been absent from the apartment for one or more days prior to March 14 on through March 16. On that evening she came from Atlanta to the apartment and upon entering same, she detected a strong offensive odor and for the first time observed much chemical paraphernalia. Upon inquiry by Flake, Lush explained to Flake that the material had been removed by direction of her supervisor either for destruction or salvage from a supply locker of a chemical supply company where Lush worked part time. Much of the contents of the locker already had been destroyed but Lush brought the remainder to the apartment to determine if it was valuable and should be preserved. Flake complained of the noxious odors that evening as well as the danger of the presence of caustic chemicals. Early on the morning of March 17 as Lush was departing, Flake admonished Lush that the material would have to be removed from the apartment. Shortly thereafter Flake was arrested in the apartment. Lush in substance corroborated this testimony by Flake testifying that she brought the equipment into the apartment on the afternoon of March 14 and the first time Flake had seen it was upon Flake’s return to the apartment at about 8:00 p.m. on March 16. There is absolutely no evidence in this record that the chemical paraphernalia was in the garage apartment prior to March 14.

An examination of the transcript makes it abundantly clear that the jury either disregarded or chose not to believe the uncontradicted and unimpeached evidence of both Lush and Flake as to when the contraband was first introduced into the apartment or when Flake first became aware of the presence of the chemical paraphernalia. Inasmuch as the direct and positive testimony of an unimpeached witness which is not inherently probable, incredible or unreasonable, and which is not uncontradicted, cannot be disregarded arbitrarily by the trier of fact (see Nesbit v. Nesbit, 241 Ga. 351, 352 (2) (245 SE2d 303)), we must conclude the jury disbelieved the explanation. There being no other independent evidence to establish Flake’s active participation so as to show a criminal design or intent to assist Lush in the manufacture of the methamphetamine, the removal of the only direct evidence necessarily required Flake’s conviction of the crime of possession of methamphetamine with intent to distribute (as announced by the jury) be based solely upon an inference arising from her ownership and presence. This is made manifest by the charge of the court for the jury was left with no factual predicate to support its finding of aiding and abetting except that one who is an owner of premises may be charged with possession of all that is contained within the owned premises. Thus, Flake’s conviction must rest exclusively on an inference that as the lessee (owner) of the premises she was at least jointly involved in criminal activity with Lush. There is no evidence indicating that Flake was actively involved in illegal activities before her arrest, had ever been aware of or participated in the manufacture of any illegal drugs, or that she was involved with Lush in any capacity other than as one of two joint lessees. Pretermitting the obvious problem created by the inconsistent verdicts of guilt of manufacturing methamphetamine and acquittal of attempted manufacture of phencyclidine based on one and the same evidence, when there was no evidence supporting such a distinction, the facts of this case preclude the applicability of the permissible inference leading to this conviction.

The rebuttable inference of constructive possession of contraband based upon ownership of the premises where the contraband was found arises where immediate and exclusive possession of premises is shown. Such possession authorizes the inference that the owner (or owners) of such property is the owner of what is contained therein, and this inference is referred to as a rebuttable presumption. However, the rule does not apply where there is evidence in the case that the owner has not been in possession of the premises for a period of time prior to the discovery of the contraband or that others have had access to it. Farmer v. State, 152 Ga. App. 792, 794 (264 SE2d 235). In such circumstances, to place the burden upon an appellant solely because of ownership, to prove that the contraband was not on the premises possessed with the owner’s knowledge or consent would be an onerous rule for the accused owners of leased premises. Shepherd v. State, 77 Ga. App. 857 (50 SE2d 111). That the appellant was not in immediate and exclusive control of the premises when they were searched is not necessarily controlling, but where appellant offers evidence reasonably establishing innocence of criminal possession and other evidence establishes that another had equal access to the premises, the application of a presumption of possession of the contraband is hot a sound abstract principle of law. In other words, where there is competent evidence that persons other than the accused have had access to or control of the premises for a period of time prior to the discovery of the contraband the burden will remain where it first came to rest, upon the state — without benefit of any presumption against the owner — to prove beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis that the accused was in knowing and unlawful possession of the contraband. Farmer v. State, supra.

In Pollard v. State, 249 Ga. 21, 22 (287 SE2d 189), the Supreme Court stated: “A permissive presumption or inference is one which allows but does not require the jury to infer an ultimate fact from proof of a basic fact. It places no burden on the defendant; it merely advises and guides the jury as to what conclusions they might draw from circumstantial evidence presented at trial. A defendant challenging a permissive presumption or inference must demonstrate its invalidity as it applies to him. ” (Emphasis supplied.)

Flake demonstrated the invalidity of the inference by presenting direct unchallenged credible evidence which called into question the validity of an inference giving rise to knowledgeable and criminal possession based upon ownership of premises. Circumstantial evidence from which the existence of a fact might be inferred, but which does not demand such a conclusion, must yield to positive and uncontradicted testimony of unimpeached witnesses, which is perfectly consistent with the circumstantial evidence relied on to give rise to the inference, and shows that no such fact existed. Myers v. Phillips, 197 Ga. 536, 542 (29 SE2d 700).

In the case of Mayo v. Owen, 208 Ga. 483, 488 (67 SE2d 709), in dealing with a permissible inference that had been demonstrably explained, the Supreme Court held: “[T]he presumption in favor of the [inference], in the parlance of the game of chess, was checkmated, and the burden was then upon [plaintiff] to show [the desired basic fact].” In substance therefore, the Supreme Court concluded that where the basis for a permissible inference has been explained the permissible inference no longer exists and the burden is thrust back upon the proponent to establish the basic fact without benefit of the inference. If the rule were not so, then no inference ever would be rebuttable. It would still be present (in addition to the fact or facts giving birth to the inference) with the explanation being weighed against the inference. Where there is a reasonable explanation, to give substance to the rule, the inference must dissipate. See Farmer, supra, p. 796; 5 ALR3d, § 4A, p. 39.

Within the context of the above authorities and reasoning, it must be concluded that the state established legal possession of the garage apartment jointly in Flake and Lush. Based upon such legal possession, the state perforce relied upon the permissible inference that Flake possessed all within the garage apartment. Upon Flake’s demonstration that she did not knowingly permit Lush to place the chemical paraphernalia into the apartment, did not know of its presence until a few hours before her arrest, did not know its intended purpose, and directed its removal (all corroborated by her roommate), I must conclude that Flake has given a reasonable explanation and thus no permissible inference of criminal activity arises from mere possession or presence in the garage apartment. See County Court of Ulster County v. Allen, 442 U. S. 140 (99 SC 2213, 60 LE2d 777); Farmer, supra, p. 796; Valenzuela v. State, 157 Ga. App. 247, 249-250 (277 SE2d 56). Even if it is assumed the jury did not believe the explanation, all that remained was the underlying fact that Flake was the lessee. That fact, without the permissive inference, gives rise to nothing more than her mere presence at the site of the contraband and is not compatible with nor sufficient to justify a finding that she criminally possessed or assisted Lush in possessing the drug paraphernalia.

The direction of a verdict of acquittal is proper where there is no conflict in the evidence as to the material issue considering the evidence introduced with lawful inferences arising therefrom. There being no probative evidence of criminal activity arising from mere ownership or presence (precluding the inference of possession arising from ownership), I conclude the trial court erred in denying Flake’s motion for directed verdict of acquittal. Phillips v. State, 238 Ga. 632, 633 (235 SE2d 12). Accordingly, I-must register my dissent to Division 9 of the majority opinion wherein it finds sufficient evidence to sustain the verdict of guilty as to Flake.

I respectfully dissent.

I am authorized to state that Chief Judge Shulman and Judge Sognier join in this dissent.