New Concerns About Drug Enforcement in Georgia?

A new case has been decided by the Georgia court of appeals that appears to chip away at the rule of equal access for drug charges.

In this case, State v. Nix, defendant Nix was convicted for marijuana possession following a traffic stop for a defective headlight. The police officer requested verbal consent to search the vehicle and subsequently found three bags of marijuana in the unlocked glove compartment of the vehicle. Nix was alone in the vehicle at the time of the traffic stop. On appeal, Nix contended that the sufficiency of the evidence did not support his conviction because of equal access.

At trial, a friend of Nix testified that the marijuana belonged to him. The friend stated he had ridden in Nix's car earlier in the afternoon and that he had placed the bags of marijuana in the glove compartment with out Nix's knowledge.

The court of appeals found that as the driver, Nix was presumed to have exclusive possession and control of the marijuana found in his car. They addressed equal access and defined what equal access means under Georgia law, stating:

" Merely finding contraband in a car driven by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had an equal opportunity to commit the crime. Whether evidence of equal access by others is sufficient to overcome the presumption that the driver possessed contraband found in his vehicle depends on the strength of the evidence and is a question for the fact finder."

At Nix's trial, the jury was properly instructed on both the presumption of possession and the equal access doctrine. The Court of Appeals found that the jury was entitled to reject the friend's testimony that the marijuana was his and that the presumption of the possession of the marijuana by Nix not been rebutted by such testimony, therefore, upholding conviction for possession.

The question remains though as to whether or not the case should have even passed through directed verdict from trial judge. Typically, and in prior cases, this type of evidence could have merited a directed verdict of not guilty from the trial judge.

However, Nix was unusual in that the state presented evidence to contradict certain elements of the friend account of what had taken place that day. Additionally, evidence was submitted that showed Nix and his friend had been arrested previously for marijuana possession and that the charges had been dismissed against the friend when Nix testified at trial that the marijuana was his and his friend had no knowledge of it.