Georgia appeals court reverses drug conviction based on “equal access” defense

The Georgia Court of Appeals recently had to determine if evidence was sufficient to support a conviction for possession of methamphetamine with intent to distribute and possession of marijuana under a theory of constructive possession. The court held there was not sufficient evidence, since the defendant’s cousin had equal access to the drugs but was not charged.

In Xiong v. State, the defendant, Xiong, allowed a police officer to search his home after the officer received a tip that a stolen car was on the property. The officer found a car that had been stripped of parts in the carport, and after checking the VIN which showed the car as stolen, Xiong was placed under arrest. A search warrant for the property was then issued. In addition to auto parts strewn throughout the property, officers found 14 bags of methamphetamine and a gun in the master bedroom as well as a small amount of marijuana in the kitchen. Electronic scales and additional handguns were also found. Police also discovered a notebook with writing that inferred that the defendant’s cousin and others were handling drugs in exchange for money.

The defendant’s wife testified that the defendant’s cousin, Vang, had moved into the home prior to the arrest since he was unemployed and homeless. The wife moved out a couple of months later due to a separation, but she returned a few days before the arrest of her husband. Her testimony revealed that Vang had moved into the master bedroom with his wife while she was away. Vang moved out shortly before the arrest of Xiong due to the wife’s return, but he had left personal belongings behind and retained a key to the home. Several days later Xiong was arrested but his wife and cousin were never charged with any crimes.

Xiong was convicted on the drug charges under the state’s theory of constructive possession. Under Georgia law, there is a presumption of constructive possession of an entire premise by the owner. Yet, the state must show sole constructive possession by the defendant if the state only charges one of two or more people who had equal access to the drugs. Thus, the presumption of constructive possession can be rebutted by showing that someone else had equal access to the specific location where the drugs were discovered. The court found that Xiong’s cousin had occupied the master bedroom where the drugs were, and that he still had personal belongings in the bedroom as well as a key to the home. The cousin also had the same access to the scales and notebook as Xiong. Furthermore, evidence suggested that the notebook was not Xiong’s. The court reasoned that the only evidence which connected Xiong to the drugs was his own equal access. Since the state only charged Xiong and could not show sole constructive possession by Xiong, the court reversed the conviction.

As a result, the court firmly established the rule that a conviction based on constructive possession cannot stand where others have equal access but are not charged.

Our criminal defense lawyers have successfully defended serious drug cases using similar defenses and equal access theories. “Being in the wrong place at the wrong time” is not enough, by itself, to justify a criminal conviction.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia’s “Super Lawyers”, and included among Georgia’s “Legal Elite” by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.


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