                              THIRD DIVISION
                             MCFADDEN, C. J.,
                         DOYLE, P. J., and HODGES, J.

                    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.
                    Please refer to the Supreme Court of Georgia Judicial
                    Emergency Order of March 14, 2020 for further
                    information at (https://www.gaappeals.us/rules).


                                                                       June 3, 2020




In the Court of Appeals of Georgia
 A20A0337. BROWN v. THE STATE.                                                DO-013 C

      DOYLE, Presiding Judge.

      Following a jury trial, Maverick Brown was convicted of trafficking in

marijuana,1 possession of marijuana with intent to distribute (two counts),2 conspiracy

to commit a violation of the Georgia Controlled Substances Act,3 and possession of

a firearm by a convicted felon.4 Brown now appeals from the denial of his motion for

new trial, contending that (1) the evidence was insufficient to support the guilty


      1
          OCGA § 16-13-31 (c) (1).
      2
          OCGA § 16-13-30 (j).
      3
          OCGA § 16-13-33.
      4
        OCGA § 16-11-131 (b). For purposes of sentencing, the two possession with
intent to sell counts and the conspiracy to commit a violation of the Georgia
Controlled Substances Act merged into the trafficking count.
verdict, (2) the jury’s verdict is contrary to and strongly against the weight of the

evidence, and (3) the trial court committed plain error by failing to instruct the jury

that knowledge of the weight of marijuana was an essential element of the trafficking

offense. Finding no reversible error, we affirm.

      Construed in favor of the verdict,5 the evidence shows that the Georgia Bureau

of Investigation conducted a video and telephone surveillance operation of Tyson

Brown (Maverick’s son), who was suspected of trafficking in marijuana. After

viewing activity and intercepting conversations indicating that Tyson6 was selling

marijuana from his house and using another location as a “stash house,” officers

executed search warrants on the same day at the two residences: 102 King Bee Drive

(stash house) and 117 Jim Lee Drive (Tyson’s house) in Floyd County. At the Jim

Lee location, officers encountered Tyson in the process of flushing marijuana down

the toilet and throwing a one-pound bag out a bathroom window; officers also found

approximately $37,000 in cash in a bag under Tyson’s bed. At the King Bee location,

officers encountered Maverick Brown in the interior hallway of the two-bedroom

house that smelled of marijuana. In the master bedroom night stand, officers

      5
          See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
      6
          For clarity, we refer to the Brown family members by their first names.

                                           2
discovered Maverick’s identification card, prescription pills, and mail — all of which

identified the King Bee location as his address. In the master bedroom closet, officers

found two handguns, ammunition, and a safe that was “stuffed pretty full” of bundles

of cash totaling approximately $90,000. In the closet of the spare bedroom at the King

Bee residence, officers found two duffel bags containing a total of fourteen plastic

bags containing a total of twelve pounds of marijuana.

      Based on the investigation and the results of the search warrants, Maverick was

charged as part of a multi-count indictment accusing Maverick, Tyson, and a local

police officer7 of conspiring to traffic in marijuana. Following a jury trial, Maverick

was found guilty of trafficking in marijuana, possessing marijuana with intent to

distribute, possessing more than one ounce of marijuana, conspiring to traffic in

marijuana, and possessing a firearm while a convicted felon. Maverick unsuccessfully

moved for a new trial, and after the trial court granted his motion for an out-of-time

appeal, he filed this appeal.

      1. Maverick contends that the evidence was insufficient to support the verdict,

making several arguments: (a) there was insufficient evidence of possession of the


      7
         Tyson was accused of bribing the police officer to apprise him of police
activity and avoid detection.

                                          3
marijuana and guns because others had equal access to them, (b) the State failed to

prove his knowledge of the weight of the marijuana, and (c) there was no evidence

that he was part of a conspiracy. None of these arguments warrant reversal.

      When an appellate court reviews the sufficiency of the evidence,

      the relevant question is whether, after viewing the evidence in the light
      most favorable to the prosecution, any rational trier of fact could have
      found the essential elements of the crime beyond a reasonable doubt.
      This familiar standard gives full play to the responsibility of the trier of
      fact fairly to resolve conflicts in the testimony, to weigh the evidence,
      and to draw reasonable inferences from basic facts to ultimate facts.
      Once a defendant has been found guilty of the crime charged, the
      factfinder’s role as weigher of the evidence is preserved through a legal
      conclusion that upon judicial review all of the evidence is to be
      considered in the light most favorable to the prosecution.8


      (a) Evidence of marijuana possession despite equal access by others. Maverick

contends that the State failed to prove that he possessed the marijuana, particularly

in light of equal access to the house by others including his wife. We disagree.

             [If, as here] the State provides no direct evidence of actual
      possession, a conviction may be sustained with proof of constructive
      possession. A finding of constructive possession must be based upon

      8
        (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307,
319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

                                           4
      some connection between the defendant and the contraband other than
      mere spatial proximity. Constructive possession exists [if] a person
      though not in actual possession, knowingly has both the power and the
      intention at a given time to exercise dominion or control over a thing. If
      the State 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. Although this
      presumption may be rebutted by showing that others had access to the
      premises, the equal access doctrine applies to rebut the presumption of
      possession only [if] the sole evidence of possession of contraband found
      on the premises is the defendant’s ownership or possession of the
      premises. Although mere presence at the scene is not sufficient to
      convict one of being a party to a crime, criminal intent may be inferred
      from conduct before, during, and after the commission of a crime.9


      At the outset, we note that there was direct evidence that Maverick lived at the

King Bee residence and slept in the master bedroom, which had a closet where the

safe and guns were found. To rebut the presumption that he possessed the contraband

in the house, Maverick points out that other family members had access to the home,

and his wife’s belongings were found along with his in the master bedroom and closet

area. Thus, he argues, they had equal access to the contraband in the house, and the


      9
       (Punctuation omitted; emphasis supplied.) Winn v. State, 345 Ga. App. 359,
361-362 (1) (813 SE2d 400) (2018), quoting Johnson v. State, 338 Ga. App. 500, 502
(790 SE2d 291) (2016).

                                          5
State did not prove his possession of the contraband.10 But there was evidence

connecting Maverick to the contraband other than his mere presence at the residence.

For example, Maverick strenuously objected when police attempted to open the safe

found in his closet. This conduct was direct evidence that Maverick asserted control

or dominion over the safe and that he knew it contained incriminating evidence —

approximately $90,000 in cash from drug transactions. Further, the safe and guns

were found along with Maverick’s clothing in his personal closet adjoining the

bedroom where he slept.11 In this way, the evidence differs from other cases in which

the only evidence of possession was the defendant’s mere presence in a house with

nothing more connecting him to the contraband found elsewhere in the house.12

Moreover, there was direct video evidence showing Maverick making a delivery of



      10
           See, e.g., Stevens v. State, 245 Ga. App. 237, 238-239 (1) (537 SE2d 688)
(2000).
      11
         Cf. Mantooth v. State, 335 Ga. App. 734, 736 (1) (a) (783 SE2d 133) (2016)
(“As long as there is slight evidence of access, power, and intention to exercise
control or dominion over the contraband, the question of fact regarding constructive
possession remains within the domain of the trier of fact.”).
      12
         Compare Stevens, 245 Ga. App. at 238 (1) (reversing a drug possession
conviction because “[t]he room where Ms. Stevens was found asleep contained
nothing more than a ‘couple of baby items’; [n]o drugs were found on her person or
in the room; [and t]he residence was not leased in her name.”).

                                          6
a bag to Tyson’s house shortly after Tyson requested that marijuana be retrieved from

the stash house. Although police did not verify the contents of the particular bag, the

bag was similar to other duffel bags containing marijuana found at the stash house.

Thus, taken as a whole and viewed in the light most favorable to the verdict, the

evidence sufficiently connected Maverick to the cash, weapons, and marijuana to

authorize a finding that he constructively possessed them.13

      (b) Knowledge of the weight of marijuana. Maverick was accused of trafficking

in marijuana that requires possessing an amount exceeding ten pounds,14 and the

indictment alleged that Maverick “knowingly possess[ed] more than 10 pounds and



      13
          See Blair v. State, 216 Ga. App. 545, 546 (1) (455 SE2d 97) (1995) (“If the
totality of the evidence is sufficient to connect defendant to possession of drugs, even
though there is evidence to authorize a contrary finding, the conviction will be
sustained.”) (punctuation omitted). See also Clewis v. State, 293 Ga. App. 412, 415
(2) (667 SE2d 158) (2008) (“[T]he equal access doctrine applies to rebut the
presumption of possession only [if] the sole evidence of possession of contraband
found on the premises is the defendant’s ownership or possession of the premises.”)
(emphasis in original ); Howard v. State, 291 Ga. App. 386, 388 (662 SE2d 203)
(2008) (explaining that for a conviction based 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. Whether or
not in a given case circumstances are sufficient to exclude every reasonable
hypothesis save the guilt of the accused is primarily a question for determination by
the jury.”) (citation, punctuation, and emphasis omitted).
      14
           See OCGA § 16-13-31 (c).

                                           7
less than 2,000 pounds of marijuana. . . .” Based on this, Maverick argues that the

State failed to prove that he knew that he possessed more than ten pounds of

marijuana. But OCGA § 16-13-54.1 provides that if

      an offense in this part measures a controlled substance or marijuana by
      weight or quantity, the defendant’s knowledge of such weight or
      quantity shall not be an essential element of the offense, and the [S]tate
      shall not have the burden of proving that a defendant knew the weight
      or quantity of the controlled substance or marijuana in order to be
      convicted of an offense.


Therefore, Maverick’s knowledge of the specific weight of the marijuana was not an

essential element,15 and based on the analysis above in Division 1 (a), the evidence

was sufficient to support a finding that Maverick knowingly possessed the marijuana

found at his residence. That it turned out to be 12 pounds sufficed to support a finding

of guilt for possessing a trafficking amount under OCGA § 16-13-31 (c).




      15
         See Scott v. State, 295 Ga. 39, 41-42 (2) (757 SE2d 106) (2014) (explaining
that in 2013, the General Assembly deleted the word “knowingly” from OCGA § 16-
13-31). The offense in this case was committed in 2017. The indictment alleged that
the date of the offense was an essential element, but it did not allege that knowledge
was an essential element. Maverick makes a separate argument about the wording of
the indictment and the jury instructions, which we address below in Division 3.

                                           8
      (c) Evidence of Maverick’s participation in a conspiracy. Maverick also

challenges the sufficiency of the evidence that he was part of a conspiracy to traffic

in marijuana. We disagree.

             A person commits the offense of conspiracy to commit a crime [if]
      he together with one or more persons conspires to commit any crime and
      any one or more of such persons does any overt act to effect the object
      of the conspiracy. In order for a conspiracy to exist, there must be an
      agreement between two or more persons to commit a crime. Such
      agreement need not be express, nor does it require a “meeting of the
      minds” to the same degree necessary to form a contract; all that is
      required is a tacit mutual understanding between persons to pursue a
      common criminal objective. In the context of narcotics trafficking,
      courts have sometimes inferred such a tacit agreement even [if]
      participants had no direct contact with one another, [if] there was
      evidence that each defendant knew or had reason to know the scope of
      the criminal enterprise[] and had reason to believe that their own
      benefits derived from the operation were dependent upon the success of
      the entire venture.16


      As noted above, the evidence supported a finding that Maverick knowingly

helped store a large quantity of marijuana at his residence, and there was other

evidence that his son Tyson admitted to police that he used the King Bee residence

      16
       (Citations and punctuation omitted.) Griffin v. State, 294 Ga. 325, 327 (751
SE2d 773) (2013).

                                          9
as a stash house. Further, there was evidence that Maverick helped respond to a

request by Tyson to bring a bag containing approximately a pound of marijuana to

Tyson’s residence. Thus, there was evidence that Maverick actively participated in

an ongoing trafficking operation by warehousing the marijuana at his residence and

providing it to his son for sale.

      2. Maverick also makes a perfunctory argument that the guilty verdict was

contrary to the principles of justice and decidedly and strongly against the weight of

the evidence.

             It is well settled that, even [if] the evidence is legally sufficient to
      sustain a conviction, a trial judge may grant a new trial if the verdict of
      the jury is contrary to the principles of justice and equity, or if the
      verdict is decidedly and strongly against the weight of the evidence. [If]
      properly raised in a timely motion, these grounds for a new trial —
      commonly known as the general grounds — require the trial judge to
      exercise a broad discretion to sit as a “thirteenth juror.” Further, in
      exercising that discretion, the trial judge must consider some of the
      things that he cannot when assessing the legal sufficiency of the
      evidence, including any conflicts in the evidence, the credibility of
      witnesses, and the weight of the evidence. Although the discretion of a




                                            10
       trial judge to award a new trial on the general grounds is not boundless
       it nevertheless is, generally speaking, a substantial discretion.17


Here, the trial court’s order reflects that it considered the entirety of the trial evidence

and appropriately exercised its discretion in denying Maverick’s motion for new trial

on the general grounds.18 Accordingly, this enumeration is without merit.

       3. Last, Maverick contends that the trial court committed plain error by failing

to instruct the jury that his knowledge of the specific weight of the marijuana was not

an essential element of the offense. In light of the clear wording of OCGA § 16-13-

54.1, which states that knowledge of weight is not an essential element of the offense

of trafficking, we disagree.

       With respect to the trafficking count, the court instructed the jury by reading

the indictment:

       [T]he grand jury accuses Maverick Brown . . . with the offense of
       trafficking in marijuana, for that the said accused on the 8th day of
       March, 2017, said date being a material element of the offense, in [Floyd
       County], did unlawfully then and there knowingly possess more than 10



       17
         (Citations and punctuation omitted.) Tripp v. State, 349 Ga. App. 164, 173
(3) (825 SE2d 560) (2019).
       18
            See id. at 174 (3).

                                            11
      pounds and less than 2,000 pounds of marijuana, contrary to the laws of
      this State.


Based on OCGA § 16-13-54.1, the court also instructed the jury that:

      As to the element of weight of marijuana alleged . . . the State likewise
      has the burden of proof. But, when an offense measures . . . marijuana
      by weight or quantity, the defendant’s knowledge of such weight or
      quantity shall not be an essential element of the offense, and the State
      shall not have the burden of proving that a defendant knew the weight
      or quantity of the . . . marijuana in order to be convicted of an offense.


Relying on the wording of the indictment, Maverick argues that the trial court

committed plain error by not instructing the jury that the State had to prove that he

knew the amount of marijuana he possessed.

      To demonstrate plain error, Maverick must meet the following test.

             First, there must be an error or defect — some sort of deviation
      from a legal rule — that has not been intentionally relinquished or
      abandoned, i.e., affirmatively waived, by the appellant. Second, the legal
      error must be clear or obvious, rather than subject to reasonable dispute.
      Third, the error must have affected the appellant’s substantial rights,
      which in the ordinary case means he must demonstrate that it affected
      the outcome of the trial court proceedings. Fourth and finally, if the
      above three prongs are satisfied, the appellate court has the discretion to
      remedy the error — discretion which ought to be exercised only if the


                                          12
      error seriously affects the fairness, integrity or public reputation of
      judicial proceedings.19


      Here, as a threshold matter, it is clear that under OCGA § 16-13-54.1,

Maverick’s knowledge of the weight of marijuana that he possessed was not a

material element of the crime of trafficking. Even so, it is true that, as Maverick

argues,

      an unnecessary description of an unnecessary fact averred in an
      indictment need not be proved, [but] in criminal law even an
      unnecessarily minute description of a necessary fact must be proved as
      charged. If the indictment sets out the offense as done in a particular
      way, the proof must show it so. No averment in an indictment can be
      rejected as surplusage which is descriptive either of the offense or of the
      manner in which it was committed. All such averments must be proved
      as laid.20


      In this case, the indictment does not add a specific knowledge element or

description; rather, it stated that Maverick’s possession had to be knowing. This is


      19
       (Punctuation and emphasis omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a)
(718 SE2d 232) (2011), quoting Puckett v. United States, 556 U.S. 129, 135 (II) (129
SCt 1423, 173 LE2d 266) (2009).
      20
       (Punctuation omitted.) Whaley v. State, 337 Ga. App. 50, 56-57 (3) (785
SE2d 685) (2016), quoting Ford-Calhoun v. State, 327 Ga. App. 835, 836 (1) (761
SE2d 388) (2014).

                                          13
demonstrated by the language of the indictment, which expressly made the date of the

offense a material element of the offense but did not make the specific knowledge of

weight a material element — “. . . for that the said accused on the 8th day of March,

2017, said date being a material element of the offense, in [Floyd County], did

unlawfully then and there knowingly possess more than 10 pounds . . . of marijuana,

contrary to the laws of this State.” The separation of the date from the descriptor

“knowingly” shows that the indictment did not impose a knowledge element specific

to the weight of marijuana. Consistent with this, the trial court’s instructions properly

recounted the elements of the offense and explained that specific knowledge of the

weight was not an element of the offense. There was no risk that the jury would

conclude that an otherwise material element did not have to be proved.21 Accordingly,




      21
         Compare Quiroz v. State, 291 Ga. App. 423, 427 (3) (662 SE2d 235) (2008)
(reversing the denial of a motion for new trial because the trial court’s instruction
“could have led the jury to conclude that [an] allegation of the indictment, even
though material in the eyes of the law, did not have to be proven beyond a reasonable
doubt”).

                                           14
because there was no “clear or obvious” legal defect in the proceedings,22 Maverick

cannot demonstrate plain error warranting reversal.

      Judgment affirmed. McFadden, C. J., and Hodges, J., concur.




      22
         See Cheddersingh v. State, 290 Ga. 680, 684-685 (2) (724 SE2d 366) (2012)
(“[T]he United States Supreme Court has said that plain error includes that which is
so plain the trial judge and prosecutor were derelict in countenancing it, even absent
the defendant’s timely assistance in detecting it.”).

                                         15
