                              THIRD DIVISION
                             ELLINGTON, P. J.,
                        DILLARD and MCFADDEN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                 November 17, 2015




In the Court of Appeals of Georgia
 A15A1301. HOLLAND v. THE STATE.                                             JE-046C

      ELLINGTON, Presiding Judge.

      A Gwinnett County jury found Daunte Holland guilty beyond a reasonable

doubt of trafficking in cocaine, OCGA § 16-13-31 (a); and possession of marijuana

with intent to distribute, OCGA § 16-13-30 (j) (1), in violation of the Georgia

Controlled Substances Act. Following the denial of his motion for a new trial,

Holland appeals, challenging the sufficiency of the evidence and contending that he

received ineffective assistance of counsel. For the reasons explained below, we

reverse.

      1. Holland contends that the State failed to adduce any evidence connecting

him to the cocaine or marijuana that he is charged with unlawfully possessing; rather,

he argues, the evidence proved no more than his mere presence in the house where
the contraband was found during the execution of a search warrant. Based on this, he

contends that the evidence was insufficient to sustain his convictions.

      On appeal from a criminal conviction, the appellate court

      view[s] the evidence in the light most favorable to the verdict[,] and an
      appellant no longer enjoys the presumption of innocence. [The appellate
      court] determines whether the evidence is sufficient under the standard
      of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
      (1979), and does not weigh the evidence or determine witness
      credibility. Any conflicts or inconsistencies in the evidence are for the
      jury to resolve. As long as there is some competent evidence, even
      though contradicted, to support each fact necessary to make out the
      State’s case, [the appellate court] must uphold the jury’s verdict.


(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

      Viewed in the light most favorable to the verdict, the record shows that, on

March 11, 2011, Gwinnett County police officers executed a search warrant at 999

Dallas Way, Lawrenceville. At trial, one officer, who entered the house with a SWAT

team to execute the search warrant, testified that Holland was present in the house

along with “a young female, Dasmine Holland, Dreshawn Tyler and Davante Holland,

as well as a male, James Tab.” The officer testified that Dasmine Holland and

Davante Holland are Holland’s children; Dreshawn Tyler is his stepchild; and “James


                                         2
Tab is a friend who was helping [Holland] out at the time due to a leg injury.” The

officer summarized that the four males found in the house (Holland, Davante Holland,

Dreshawn Tyler, and Tab) were all “over the age of 17 and 18.”

      That officer, who entered the house through the front door, described the

house’s floor plan as follows: the house is a split-level style house; entering from the

front door, one enters a living room which has an area at the back set up for playing

video games; at the rear of the game area is a sliding glass door leading into the back

yard. In the living room, a split set of stairs leads either down into the garage/laundry

room area or up to a hallway. The officer testified, “On the right side of the hallway,

you have two bedrooms, Dreshawn Tyler’s bedroom and Devante Holland’s

bedroom.” The first door on the left side of the hallway is to a half bath; the second

door on the left is to the master bedroom. At the end of the hall is a small closet. The

master bedroom has an attached bathroom, and inside that bathroom is a set of stairs

that lead up to a bonus room. Inside this bonus room is an access door to the attic. A

second officer who searched the house testified similarly about the floor plan.

      A third officer testified that he assisted in executing the search warrant and was

assigned “as a containment on the back side of the house.” Just before the SWAT

team entered the house from the front, that officer noticed that the shade was up on

                                           3
“the top left-hand window as you’re facing the back of the house,” and through the

window he “could see two people inside the house[,] . . . an older male and a young

female, early teens.” He was able “after the fact” to identify the male as Holland. For

twenty to thirty seconds, the officer saw Holland apparently sitting in that room while

the girl walked in and out of the officer’s view. That officer “never made it into the

house” and never saw the layout of the house – “[j]ust right inside the sliding-glass

door is as far as [he] got.” Therefore, he could not identify the room he saw Holland

in as the master bedroom, as opposed to any other room, but assumed it was the

master bedroom “going by the [first officer’s] drawing” of the floor plan during that

officer’s trial testimony.

      During the search, the officers found in the master bedroom various quantities

of powder and solid cocaine (in many, small plastic baggies), marijuana (also

packaged in small baggies), two digital scales, and additional plastic baggies of

various sizes. Some of the contraband was found in a drawer; some was found under

a mattress or under the bed. In the attic, officers found more packages of powder and

solid cocaine, marijuana, and a digital scale. Some of the packages of drugs were




                                          4
lying in various places atop the insulation; more drugs and the scale were stuffed

inside of a shoe and a boot.1

      The State adduced evidence that an undercover officer bought crack cocaine

from Holland on two separate occasions in 2001. Holland pled guilty to those

charges, and the State tendered a certified copy of his prior convictions at trial. The

State proffered the other-acts evidence solely on the issue of intent, and the trial court

instructed the jury to limit its consideration of the evidence to that issue.

      Holland’s knowing possession of the cocaine found in the master bedroom and

in the attic was an essential element of the offense of trafficking in cocaine as charged

in the indictment. Cobarrubias-Garcia v. State, 316 Ga. App. 787, 789 (730 SE2d

455) (2012) (physical precedent only).2 Similarly, his knowing possession of the

marijuana found in those locations was an essential element of possession of




      1
         A forensic chemist with the Georgia Bureau of Investigation tested the
cocaine. The combined weight of all of the cocaine was over 400 grams. The chemist
testified that all but one of the individual bags of cocaine she tested had a purity level
of at least 10 percent.
      2
        See OCGA § 16-13-31 (a) (1) (“Any person . . . who is in possession of 28
grams or more of cocaine or of any mixture with a purity of 10 percent or more of
cocaine . . . in violation of [the Controlled Substances Act] commits the felony
offense of trafficking in cocaine[.]”).

                                            5
marijuana with intent to distribute. See id.3 “Possession of contraband may be actual

or constructive. . . . A person who knowingly has direct physical control over a thing

at a given time is in actual possession of it.” (Citation and punctuation omitted.)

Lopez-Vasquez v. State, 331 Ga. App. 570, 572 (1) (771 SE2d 218) (2015). In this

case, the State adduced no evidence that Holland had direct physical control over any

of the contraband found in the house. Consequently, it is undisputed that he was not

in actual possession of the drugs, and the issue before us is whether he was in

constructive possession of the drugs.

      “A person may be found to have had constructive possession of contraband if

it is shown that he had both the power and the intention at a given time to exercise

dominion or control over it.” (Citation and punctuation omitted.) Aquino v. State, 308

Ga. App. 163, 165 (1) (706 SE2d 746) (2011). See Cobarrubias-Garcia v. State, 316

Ga. App. at 789 (accord). But a finding of constructive possession cannot be based

upon a defendant’s mere spatial proximity to contraband at a given time; rather “a

finding of constructive possession must be based upon some connection between the

defendant and the contraband[.]” (Citation omitted.) Stacey v. State, 292 Ga. 838,


      3
        See OCGA § 16-13-30 (j) (1) (“It shall be unlawful for any person to . . .
possess with intent to distribute marijuana.”).

                                          6
839-840 (1) (a) (741 SE2d 881) (2013).4 Further, “[t]o warrant a conviction on

circumstantial evidence, the proved facts shall not only be consistent with the

hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of

the guilt of the accused.” OCGA § 24-14-6.

      In this case, the State failed to adduce any evidence that Holland owned or

rented the house, such legal control as would give rise to a rebuttable presumption of

possession of contraband found on the premises.5 The State failed to adduce any

      4
         See also Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997) (“A
finding of constructive possession of contraband cannot rest upon mere spatial
proximity to the contraband, especially where the contraband is hidden.”) (citations
omitted); Cobarrubias-Garcia v. State, 316 Ga. App. at 789-790 (To demonstrate that
the defendant had the power and intent to exercise dominion or control over
contraband, the State “must provide evidence of a connection linking the defendant
to the contraband other than his mere spatial proximity.”) (citation and punctuation
omitted); Hughes v. State, 215 Ga. App. 6, 9 (1) (449 SE2d 547) (1994) (“A finding
of joint or constructive possession must be based upon some connection between the
defendant and the contraband other than spatial proximity. . . . Mere proof of the
accused’s presence at the scene of the crime, without any evidence to show further
participation in the commission of the crime, is insufficient to authorize a
conviction.”) (citations and punctuation omitted).
      5
        See Cobarrubias-Garcia v. State, 316 Ga. App. at 790 (“A connection can be
made between a defendant and contraband found in his presence by evidence which
shows that the contraband was discovered on premises occupied and controlled by
the defendant with no right of equal access and control in others. Such occupation and
control may be inferred when the accused is the owner or tenant of the premises upon
which the illicit drugs are discovered.”) (punctuation and footnote omitted);
Dickerson v. State, 312 Ga. App. 320, 321 (1) (718 SE2d 564) (2011) (“If the State

                                          7
evidence that Holland occupied the master bedroom or that he kept personal

belongings there.

      Viewed in the light most favorable to the jury’s guilty verdict, the only

evidence that he had even entered the specific locations in the house where the drugs

were found (the master bedroom and the attic, which could be reached from the

master bedroom) was the testimony of the containment officer who saw him for

twenty to thirty seconds through a window which the officer assumed to be the master

bedroom. There was no evidence that Holland had ever been in the attic.

      In addition to the lack of evidence connecting Holland specifically to the

locations in the house where the drugs were found, the State did not even prove that

Holland lived at that address, had keys to the house, kept personal belongings

anywhere in the house, or received mail there. In fact, the State failed to adduce any

evidence that Holland had been inside the house any earlier than scant moments

presents evidence that a defendant owned or controlled premises where contraband
was found, it gives rise to a rebuttable presumption that the defendant possessed the
contraband. This presumption of constructive possession arising from ownership or
control of the premises can be overcome by evidence that other persons had equal
access to the contraband found there.”) (citations and punctuation omitted); Emerson
v. State, 220 Ga. App. 485, 487 (2) (469 SE2d 520) (1996) (“A rebuttable
presumption arises when one leases premises, and contraband is found therein, that
the lessee is in possession of the entire premises and all the property found on the
premises.”) (citation and punctuation omitted).

                                          8
before the search began. The evidence showed, at most, that Holland had momentary

access to the master bedroom just before contraband was found there.

      [A] mere occupant, as distinguished from a resident, does not
      necessarily have the requisite control over the premises to authorize the
      inference that he possesses all property found thereon. If such were the
      case, a person’s mere presence at the scene of the discovery of illegal
      drugs would authorize his conviction, and that plainly is not the law.
      Accordingly, evidence merely showing that contraband was found in a
      residence occupied by the defendant is simply insufficient to support a
      conviction, especially where other persons had equal access to the
      contraband and therefore an equal opportunity to commit the offense.


(Punctuation and footnotes omitted.) Cobarrubias-Garcia v. State, 316 Ga. App. at

790 (physical precedent only). See also Johnson v. State, 245 Ga. App. 583, 585 (538

SE2d 481) (2000) (accord).

      Because the State failed to show that a presumption of possession applies, and

failed to adduce any evidence to connect Holland to the drugs found in the master

bedroom and the attic, the evidence was insufficient to sustain his convictions for

trafficking in cocaine and possession of marijuana with intent to distribute. Mitchell

v. State, 268 Ga. at 593; see Cobarrubias-Garcia v. State, 316 Ga. App. at 790-791

(Evidence of possession of drugs was insufficient, where the contraband was located


                                          9
hidden in the chimney, inside the wall in two bathrooms, and inside one bedroom,

when the defendant was found standing near the front door, although clothes the

defendant had worn were found in another bedroom.); Aquino v. State, 308 Ga. App.

163, 164-168 (1) (706 SE2d 746) (2011) (Evidence of possession of

methamphetamine was insufficient, where the contraband was located inside a locked

house in a black bag in a drawer when the defendant was found standing in the

driveway, even though the defendant’s driver’s license was found inside in a

bedroom, the defendant had on his person a key to the house and to a car parked there

whose tag was inside the house, and the defendant had been seen opening the door

of the house while holding a black bag.).6



      6
         Cf. Whitfield v. State, 217 Ga. App. 402, 405 (3) (457 SE2d 682) (1995)
(Evidence that the defendant lived in an apartment with the named lessee, the
defendant was in the master bedroom at the time of the search, the defendant had
$780 in cash in his pockets at that time, and the defendant previously sold cocaine at
the same apartment to an undercover officer was sufficient to connect the defendant
to cocaine and marijuana found in various locations in the apartment during the
execution of a search warrant and thus authorized a finding of possession.); Pamplin
v. State, 164 Ga. App. 610-611 (1) (298 SE2d 622) (1982) (Although the evidence
showed that others had equal access to premises where drugs were found, evidence
was sufficient to connect the defendant to the contraband and thus authorized a
finding of possession where there was evidence that the defendant resided in the
apartment and the drugs were found in a drawer in the apartment’s only bedroom
under a loaded pistol that belonged to the defendant.).

                                         10
      2. In light of our holding in Division 1, supra, Holland’s remaining claim of

error is moot.

      Judgment reversed. McFadden, J., concurs and Dillard, J., concurs in

judgment only.




 A15A1301. HOLLAND v. THE STATE.                                      DI-046C




      DILLARD, Judge, concurring in judgment only.
      I concur in judgment only because I do not agree with all that is said in the

majority opinion. As a result, the majority’s opinion decides only the issues presented

in the case sub judice and may not be cited as binding precedent. See Court of

Appeals Rule 33 (a).




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