STEWART v. STATE

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Court of Appeals of Georgia.

STEWART v. The STATE.

No. A14A0337.

Decided: July 9, 2014

Jennifer Adair Trieshmann, for Stewart. Timothy Michael Marlow, Peter J. Skandalakis, for The State.

Following a trial by jury, Kayla Stewart was convicted of possession of cocaine.1 On appeal, Stewart contends that the evidence was insufficient to sustain her conviction. We agree and, accordingly, reverse.2

Viewed in the light most favorable to the jury's verdict,3 the record shows that Stewart and her then-boyfriend, Robert Beasley, and Beasley's friend, Natdaniel Whetstone, were indicted for trafficking cocaine.4 This indictment resulted from law enforcement's discovery of drugs in a Newnan hotel room that Stewart and Beasley shared on December 24, 2011, after responding to a call from the hotel. Stewart, who still lived in her parents' home, informed law enforcement that she rented the room so that she and Beasley could spend some time together. At 10:00 p.m., however, Stewart decided to leave the hotel because she was frustrated by constant interruptions from Beasley's friends, including Whetstone. Beasley remained in the room with Whetstone until approximately 11:00 p.m., when the two left the premises to go shoot pool.

At trial, Whetstone—who testified for the State in exchange for dismissal of the charges against him—noted that prior to leaving the hotel room, Beasley smoked marijuana, which he pulled from a white bag that was inside the hotel-room microwave. Beasley informed Whetstone that the bag contained “yams,” which Whetstone understood to mean cocaine.5 Whetstone also observed Beasley remove cash from a drawer.

According to Whetstone, after getting into his car to leave, Beasley noticed law enforcement arriving at the hotel, and, as a result, he asked Whetstone to circle the building to see if officers were going inside of his room. Then, not long after driving away from the hotel, the two men were stopped by law enforcement after officers entered the room and discovered marijuana, cocaine, and a large stack of cash, all in plain view.6 Stewart was apprehended later, and she and Beasley were subsequently tried and convicted, although the jury convicted Stewart of the lesser offense of simple possession.7 This appeal follows.

In her brief, Stewart contends that the evidence is insufficient to sustain her conviction when the sole evidence linking her to the discovered contraband was her rental of the hotel room and her presence in the room at times throughout the evening. We agree.

It is undisputed that Stewart did not actually possess the drugs and, therefore, the issue is whether she was in joint constructive possession of the drugs. And as we have previously explained, that question turns on whether Stewart and the other defendants “knowingly shared the power and intention to exercise dominion or control over [the drugs].”8 But mere “spatial proximity” to contraband is not sufficient to prove constructive possession.9 Instead, the State must show that the defendant had “the power and intent to exercise control over the drugs, which requires evidence of some meaningful connection between the defendant and the drugs.”10 And it is well established that “[m]ere presence where contraband is found when others have equal access to the substance is insufficient to support a conviction.”11 Indeed, when it is affirmatively shown that others had “equal access or opportunity to commit the crime, a defendant's mere presence at premises where contraband is discovered, without more, is insufficient to support a conviction.”12

Here, the evidence—which included a surveillance video, video still-shots of the hotel hallway, and a registration record—shows that Stewart rented the hotel room for the use of two occupants; that she arrived at the hotel with Beasley on the evening in question; that the two carried their belongings into the room at approximately 7:00 p.m.; and that she left the property at various points, the final time being at 10:00 p.m. Moreover, according to Whetstone, the first time he visited Beasley at the hotel on the evening of December 24, Stewart was picking up takeout food. And Stewart left the room for good at approximately 10:00 p.m., when Whetstone visited for a second time and Beasley informed Stewart that he was going to shoot pool with Whetstone.

Stewart later informed law enforcement that she rented the room in order to spend time alone with Beasley and that she left because she was upset by constant interruptions from Beasley's friends. And Whetstone testified that it was only after Stewart left the room that Beasley retrieved marijuana from the microwave in the room, indicated that the microwave contained cocaine, smoked the marijuana, and retrieved cash from a drawer.13 Put another way, Whetstone affirmatively testified that no contraband was in plain view when Stewart was in the room.14 Additionally, it was only after Stewart left that law enforcement was called to the hotel with regard to concerns that the occupants of the room were smoking marijuana and, upon entering the hotel, noticed a smell of burning marijuana emanating from the vicinity of the room. Accordingly, there was no evidence linking Stewart to the contraband that was discovered by law enforcement, save her rental of and earlier presence in the room.15 And there was affirmative evidence that others had equal access to the room, rebutting as a matter of law any presumption of possession arising from the fact that Stewart rented the room in her name.16 For all of these reasons, we reverse Stewart's conviction.

Judgment reversed.

DILLARD, Judge.

DOYLE, P. J., and MILLER, J., concur.

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