Brown v

State, 252 Ga. App. 714, 556 S.E.2d 881, 2001 Ga. App. LEXIS 1359 (2001), cert. denied, No. S02C0476, 2002 Ga. LEXIS 307 (Ga. Mar. 29, 2002). Construed with O.C.G.A. §§ 16-13-26(1)(D) and 16-13-31. — When the total weight of the substances seized from defendant was only 24.4 grams of cocaine, the defendant argued that the only Georgia statute that proscribes possession of cocaine is O.C.G.A. § 16-13-31, which prohibits the possession of 28 grams or more of cocaine. However, although O.C.G.A. § 16-13-31 deals with being in knowing, actual possession of 28 grams or more of cocaine or any mixture containing cocaine, O.C.G.A. § 16-13-26(1)(D) (prior to 1988 amendment inserting “cocaine,” at beginning of paragraph) lists “Coca leaves, any salt, compound, derivative, stereoisomers of cocaine, or preparation of coca leaves, and any salt, compound, derivative, stereoisomers of cocaine, or preparation thereof which is chemically equivalent or identical with any of these substances . . . ,” which includes cocaine. Under O.C.G.A. § 16-13-30, the unlawful possession of any controlled substance, regardless of amount, constitutes an offense. Dixon v. State, 180 Ga. App. 222, 348 S.E.2d 742, 1986 Ga. App. LEXIS 2685 (1986) (decided prior to 1988 amendment of § 16-13-26). Construction with O.C.G.A. § 17-10-7. — Because the felony convictions not challenged by the defendant would have sufficed to render the defendant a recidivist and because both of the defendant’s attacks on prior convictions for drug possession with intent to distribute lacked merit, the trial court did not err when the court considered those prior convictions and sentenced the defendant to serve 30 years without parole under O.C.G.A. §§ 16-13-30(b) and 17-10-7(c). Merritt v. 298 State, 329 Ga. App. 871, 766 S.E.2d 217, 2014 Ga. App. LEXIS 789 (2014). Construction of statute with federal laws. — Statute lists simple possession of marijuana and possession with intent to distribute in disjunctive, which indicates that they are elements in the alternative, and, thus, O.C.G.A. § 16-13-30(j) is divisible such that a modified-categorical approach to determine whether the statute qualified as a crime of violence applied; the defendant’s two prior Georgia convictions were for possession with intent to distribute marijuana, which qualified as a predicate offense for both the Armed Career Criminal Act and Sentencing Guidelines. United States v. Bates, 960 F.3d 1278, 2020 U.S. App. LEXIS 17249 (11th Cir. 2020). Construction with federal provisions. — Unpublished decision: When the defendant appealed 160-month sentence for violating 21 U.S.C. § 841(a)(1) and (b)(1)(C), the defendant’s 2003 Georgia felony conviction for possession with intent to distribute marijuana, in violation of O.C.G.A. § 16-13-30(j)(1), qualified as a controlled substance offense for purposes of applying the career offender enhancement under U.S. Sentencing Guidelines Manual § 4B1.1(a). United States v. Stevens, 654 Fed. Appx. 984, 2016 U.S. App. LEXIS 12415 (11th Cir. 2016). Identification of defendant by confidential informant and detective. — Trial court did not abuse the court’s discretion, nor commit plain error, allowing the confidential informant (CI) and the detective to identify the defendant in videos and photographs because in addition to interacting with the defendant over the course of several drug transactions, the CI and the detective testified to have known the defendant for a long time, thus, there was some basis for concluding they were in a better position to correctly identify the defendant than the jurors. Goforth v. State, 360 Ga. App. 832, 861 S.E.2d 800, 2021 Ga. App. LEXIS 400 (2021). Quantity purchased is not element of crime. — Sufficient evidence existed to support a defendant’s conviction of purchasing marijuana under O.C.G.A. 16-13-30 § 16-13-30(j)(1) as the quantity purchased was not an element of the crime and the purchase could be established by proof of a promise to pay such as the defendant had made; however, the defendant’s conviction was reversed for failure to give a lesser included offense instruction. Johnson v. State, 296 Ga. App. 697, 675 S.E.2d 588, 2009 Ga. App. LEXIS 317 (2009), cert. denied, No. S09C1191, 2009 Ga. LEXIS 420 (Ga. June 29, 2009). Substance not listed as controlled substance. — As to the possession of a controlled substance, namely Alpha-PVP (alpha-pyrrolidinopentiophenone), the state failed to present sufficient evidence to support the defendant’s conviction for possession of a controlled substance because Alpha-PVP was not listed in any of the controlled substance schedules, nor was there testimony or other evidence that it was chemically related to any listed controlled substance. Roundtree v. State, 358 Ga. App. 140, 854 S.E.2d 340, 2021 Ga. App. LEXIS 21 (2021). Jurisdiction in any county where crime could have been committed. — Under O.C.G.A. § 16-13-30(j)(1), it was unlawful for any person to possess marijuana and since the marijuana was found in defendant’s pocket when the defendant was arrested, and defendant was observed traveling in Newton County before defendant’s arrest in Rockdale County, the evidence was sufficient to conclude beyond a reasonable doubt that defendant was guilty of possession of less than one ounce of marijuana since O.C.G.A. § 17-2-2(e) provided that if a crime was committed upon any vehicle traveling within the state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the vehicle has traveled. Johnson v. State, 299 Ga. App. 706, 683 S.E.2d 659, 2009 Ga. App. LEXIS 951 (2009). Illegal possession and sale of a controlled substance are separate and distinct crimes as a matter of law. Harmon v. State, 235 Ga. 329, 219 S.E.2d 441, 1975 Ga. LEXIS 869 (1975). 299 General Consideration (Cont’d) Illegal possession and illegal sale of a proscribed drug are separate crimes as a matter of law. However, if the evidence required to convict an accused of the illegal sale is the only evidence showing illegal possession, then illegal possession is included in the crime of illegal sale as a matter of fact. Sullivan v. State, 178 Ga. App. 769, 344 S.E.2d 737, 1986 Ga. App. LEXIS 1758 (1986). State failed to prove drug regulated by law. — Defendant was improperly convicted of violating the Georgia’s Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., by distributing a Schedule IV drug, Zolpidem, which was commonly known as Ambien, O.C.G.A. §§ 16-13-28(a)(33) and 16-13-30(b), because the state failed to prove that the drug Ambien was regulated by law, and the trade name of a statutorily designated controlled substance was not the proper subject of judicial notice; while the state presented evidence that the defendant admitted to distributing Ambien and produced testimony that “Ambien” was a Schedule IV controlled substance, the state was required to identify “Ambien” as a trade name for Zolpidem through admissible evidence. DeLong v. State, 310 Ga. App. 518, 714 S.E.2d 98, 2011 Ga. App. LEXIS 605 (2011). Sale of noncontrolled substance not lesser-included offense. — Offense of unlawfully selling a noncontrolled substance while representing the substance to be a controlled substance (O.C.G.A. § 16-13-30.1) is not included in the offense of conspiracy to sell or distribute cocaine (O.C.G.A. § 16-13-30). Smith v. State, 202 Ga. App. 664, 415 S.E.2d 481, 1992 Ga. App. LEXIS 149 (1992). No evidence of lesser included offense of possession of cocaine. — With regard to a defendant’s conviction for trafficking in cocaine, the trial court did not err by failing to charge the jury on the lesser included offense of possession of cocaine with intent to distribute as there was no dispute that the cocaine exceeded the amount necessary to sustain a trafficking conviction, therefore, there 16-13-30 was no evidence of the lesser included offense. However, even if the trial court’s failure to give the requested instruction was error, it is highly probable that the error did not contribute to the verdict in light of the overwhelming evidence that the defendant committed the greater offense. Celestin v. State, 296 Ga. App. 727, 675 S.E.2d 480, 2009 Ga. App. LEXIS 164 (2009), cert. denied, No. S09C1200, 2009 Ga. LEXIS 340 (Ga. June 1, 2009). Sell and possession of cocaine did not merge. — Offenses of selling cocaine and possessing cocaine in violation of O.C.G.A. § 16-13-30(a) and (b) did not merge because two discrete portions of cocaine were used to prove the two discrete offenses; the offense of selling cocaine was proven by evidence of a crack cocaine sale to a confidential informant, and the offense of possessing cocaine was proven by the evidence that the defendant possessed the additional crack cocaine later found in the car the defendant occupied. Robertson v. State, 306 Ga. App. 721, 703 S.E.2d 343, 2010 Ga. App. LEXIS 1038 (2010). Possession included in trafficking offense. — Offenses of possession of cocaine and possession of cocaine with intent to distribute were lesser included offenses, as a matter of fact, of the trafficking offense since proof of the two possession offenses was established by “the same or less than all the facts” required to establish the distribution offense; thus, it was error to convict defendant of all three offenses. Hancock v. State, 210 Ga. App. 528, 437 S.E.2d 610, 1993 Ga. App. LEXIS 1239 (1993). Even if the first count of an indictment did indeed charge both possession of marijuana with intent to distribute and simple possession, those offenses could be joined in one count because they were offenses of the same nature that differed only in degree and that related to only one transaction; thus, the count was not subject to demurrer as duplicitous. Davis v. State, 285 Ga. App. 460, 646 S.E.2d 342, 2007 Ga. App. LEXIS 547 (2007). Distinguishing trafficking from possession. — Amount of controlled substance is chosen as the basis for distinguishing the crime of trafficking 300 from the somewhat less serious crimes described in O.C.G.A. § 16-13-30. Twenty-eight grams was chosen as the dividing line. Bassett v. Lemacks, 258 Ga. 367, 370 S.E.2d 146, 1988 Ga. LEXIS 339 (1988). Conviction for possessing cocaine was not inconsistent with acquittal of trafficking in cocaine, when the cocaine upon which the possession offense was based had been seized at a different time and place from the cocaine upon which the trafficking offense was based. Rogers v. State, 182 Ga. App. 599, 356 S.E.2d 546, 1987 Ga. App. LEXIS 2637 (1987). Evidence did not demand acquittal of methamphetamine charges. — Defendant was not entitled to an acquittal on either a charge of conspiracy to manufacture methamphetamine or possession of methamphetamine, as the evidence showed that methamphetamine was being manufactured inside the residence in which defendant was found, and conviction of possession of methamphetamine did not rest solely upon evidence that the methamphetamine was found on the premises also occupied by others, nor did such conviction rest solely upon defendant’s spatial proximity to the contraband. McWhorter v. State, 275 Ga. App. 624, 621 S.E.2d 571, 2005 Ga. App. LEXIS 1056 (2005). Evidence sufficient for selling products positive for indazole amide. — State’s evidence, including testimony and reports produced by the forensic chemist who tested the confiscated products as well as the exhibits showing which products were received and the results of the testing, was sufficient to prove that the products the defendants were charged with selling tested positive for indazole amide. Awtrey v. State, 346 Ga. App. 892, 815 S.E.2d 655, 2018 Ga. App. LEXIS 433 (2018). Mere possession will not serve as basis for conviction for possessing contraband for purposes of sale. Wright v. State, 154 Ga. App. 400, 268 S.E.2d 378, 1980 Ga. App. LEXIS 2194, cert. denied, 449 U.S. 900, 101 S. Ct. 270, 66 L. Ed. 2d 130, 1980 U.S. LEXIS 3494 (1980). When illegal possession is included in illegal sale as matter of fact. — If evidence required to convict of illegal sale 16-13-30 of controlled substance is the only evidence showing possession, illegal possession is included in crime of illegal sale as a matter of fact. Harmon v. State, 235 Ga. 329, 219 S.E.2d 441, 1975 Ga. LEXIS 869 (1975). Manufacturing methamphetamine. — Evidence was sufficient for a jury to find defendant guilty of manufacturing methamphetamine, as defendant leased a house in which a widespread methamphetamine manufacturing operation took place, which created a strong chemical smell immediately apparent upon entering the house, and defendant tested positive for methamphetamine, circumstantially linking defendant to the manufacturing process and undermining defendant’s claim that defendant was unaware of the activity. Kirby v. State, 275 Ga. App. 216, 620 S.E.2d 459, 2005 Ga. App. LEXIS 933 (2005). Defendant’s conviction of manufacturing methamphetamine under O.C.G.A. § 16-13-30(b) was supported by sufficient evidence as the presence of chemicals and supplies as well as methamphetamine in the various containers of liquid were all indicative of a methamphetamine manufacturing operation, and testimony indicated the presence of a level of contamination in the defendant’s apartment that showed that the laboratory had probably been in operation for several weeks; furthermore, the scope of the operation was such that it could not have been hidden from the defendant by defendant’s co-tenant. Gentry v. State, 281 Ga. App. 315, 635 S.E.2d 782, 2006 Ga. App. LEXIS 943 (2006), cert. denied, No. S07C0117, 2007 Ga. LEXIS 78 (Ga. Jan. 22, 2007). Because the evidence surrounding the stop of the defendant and the evidence seized thereon, including money, various guns, and almost 43 grams of methamphetamine, was sufficient to support a conviction for possession of methamphetamine with intent to distribute, the conviction was upheld on appeal; moreover, based on trial counsel’s testimony and evidence that both counsel and the defendant extensively discussed the pros and cons of having a jury hear the case, suffi- 301 General Consideration (Cont’d) cient extrinsic evidence showed that the defendant knowingly, voluntarily, and intelligently waived any right to a trial by jury. Whitaker v. State, 286 Ga. App. 143, 648 S.E.2d 396, 2007 Ga. App. LEXIS 558 (2007). Evidence that the defendant owned the house where the ingredients and equipment were found, the defendant talked to the codefendant about whether the codefendant should abscond and bought the codefendant a truck, and the defendant made a list of pharmacy directions for the codefendant so that the codefendant could avoid legal restrictions on the purchase of ingredients was sufficient to support a conviction for attempt to manufacture methamphetamine. Taylor v. State, 320 Ga. App. 596, 740 S.E.2d 327, 2013 Ga. App. LEXIS 244 (2013). Evidence was sufficient to convict the defendant of manufacturing methamphetamine and trafficking methamphetamine because, given the large array of products involved in the production of methamphetamine, their proximity to each other in the residence, and the fact that methamphetamine was found throughout the residence, the jury heard sufficient evidence to allow the jury to conclude that it would have been virtually impossible for the defendant to have been unaware that methamphetamine was being produced there; and the state presented evidence that police had observed the defendant sell methamphetamine to a confidential informant from the same residence where the methamphetamine was being produced. Cummings v. State, 345 Ga. App. 702, 814 S.E.2d 806, 2018 Ga. App. LEXIS 270 (2018), cert. denied, No. S18C1280, 2018 Ga. LEXIS 728 (Ga. Nov. 15, 2018). Rule of lenity did not apply to imitation controlled substances. — Trial court did not err by refusing to apply the rule of lenity with regard to a defendant’s conviction for selling a counterfeit substance because the evidence revealed that the substance would not fall under either definition of “imitation controlled substance” set forth in O.C.G.A. § 16-13-21(12.1)(A) as the parties stipulated only that the substance 16-13-30 recovered was not a controlled substance and there was no evidence presented that the substance was specifically designed or manufactured to resemble the physical appearance of a controlled substance. As a result, the rule of lenity did not apply, and the trial court properly sentenced the defendant for a felony. Chandler v. State, 294 Ga. App. 27, 668 S.E.2d 510, 2008 Ga. App. LEXIS 1099 (2008). Prior similar act admissible. — Prior guilty plea to charge of selling cocaine was substantially relevant to corroborate identification of defendant as seller, and as a prior similar act, it was similar and relevant. Evans v. State, 209 Ga. App. 606, 434 S.E.2d 148, 1993 Ga. App. LEXIS 957 (1993), cert. denied, No. S93C1990, 1993 Ga. LEXIS 1152 (Ga. Dec. 3, 1993). Evidence showing independent crimes involving similar dollar amounts of drugs sold in sidewalk sales to passing vehicles was sufficient proof of similarity between other crimes and the one for which defendant was indicted. Aldridge v. State, 222 Ga. App. 437, 475 S.E.2d 195, 1996 Ga. App. LEXIS 869 (1996). Admission of similar transaction evidence in a case charging the defendant with possession of cocaine with intent to distribute, O.C.G.A. § 16-13-30(b), and obstructing or hindering law enforcement officers, O.C.G.A. § 16-10-24, was proper because, in both the similar transaction and the incident leading to the charges being tried, the defendant was arrested in possession of cocaine and “sale-sized” baggies after seeking to avoid police; the trial court also gave an instruction that the similar transaction evidence was limited to the purpose of showing the defendant’s bent of mind in committing the charged offenses. Cotton v. State, 297 Ga. App. 664, 678 S.E.2d 128, 2009 Ga. App. LEXIS 515 (2009). Defendant was properly convicted of trafficking in methamphetamine, O.C.G.A. § 16-13-31, violating the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., and contributing to the delinquency of a minor, O.C.G.A. § 16-12-1, because the trial court properly admitted the state’s similar transaction evidence when the 302 evidence was introduced for the appropriate purpose of showing the defendant’s knowledge and intent regarding the methamphetamine found in the defendant’s room, and the trial court instructed the jury to consider the evidence for that limited purpose; both incidents occurred on the same street and both involved methamphetamine, and in both incidents police found the drugs in the defendant’s bedroom along with scales. Swan v. State, 300 Ga. App. 667, 686 S.E.2d 310, 2009 Ga. App. LEXIS 1245 (2009). During defendant’s trial for possession of methamphetamine and possession of marijuana, the trial court did not abuse the court’s discretion in admitting evidence of the defendant’s prior conviction on an obstruction charge because the trial court admitted the evidence for the purpose of showing the defendant’s course of conduct only after conducting a hearing pursuant to Ga. Unif. Super. Ct. R. 31.3(B), which the court was required to do, and the state satisfied the criteria delineated in Rule 31.3 for the admission of similar-transaction evidence; even assuming that the similar-transaction evidence should have been excluded, any error in the evidence’s admission was harmless because there was videotaped evidence that the defendant was driving an obviously stolen vehicle, that the defendant fled from officers who attempted to conduct a traffic stop, that the defendant continued to lead the officers on a chase even after the defendant’s tires had been flattened, that the defendant ultimately exited the vehicle and ran on foot, and that methamphetamine and marijuana not belonging to the owner were found inside the vehicle in which the defendant was the sole occupant. Mangum v. State, 308 Ga. App. 84, 706 S.E.2d 612, 2011 Ga. App. LEXIS 124 (2011). Trial court did not abuse the court’s discretion in admitting similar transaction evidence because both the prior incident and the incident for which the defendant was convicted involved the possession of cocaine since the prior possession was for the purpose of distribution, inasmuch as the evidence showed 16-13-30 that the defendant did, in fact, distribute cocaine on that occasion, and the possession for which the defendant was convicted was for an unknown purpose and not clearly for personal use; one incident involved possession and sale of less than one gram of cocaine, the other involved possession of less than two grams of cocaine, and both incidents occurred in the county within a span of two weeks. Gaudlock v. State, 310 Ga. App. 149, 713 S.E.2d 399, 2011 Ga. App. LEXIS 453 (2011), cert. denied, No. S11C1610, 2011 Ga. LEXIS 851 (Ga. Oct. 17, 2011). Trial court did not abuse the court’s discretion by allowing the admission of evidence regarding the defendant’s prior drug possession arrest because the evidence of prior drug activity was highly probative of intent to sell a controlled substance for which the defendant was on trial and the prior act of drug possession happened while the defendant was driving a car in the same area where the sale of the methamphetamine during the first buy occurred. Moton v. State, 351 Ga. App. 789, 833 S.E.2d 171, 2019 Ga. App. LEXIS 488 (2019). Erroneous admission of prior conviction harmless. — Trial court’s admission of the defendant’s prior convictions for possession of cocaine was erroneous because the state did not present any testimony at trial establishing the prior convictions, but rather, the state’s evidence was limited to the introduction of copies of the defendant’s guilty pleas and convictions for the prior drug possession offenses; however, in light of the overwhelming competent evidence establishing the defendant’s guilt of the sale of cocaine, it was unlikely that the erroneous admission of the prior possession offenses contributed to the verdict. Perry v. State, 314 Ga. App. 575, 724 S.E.2d 874, 2012 Ga. App. LEXIS 237 (2012). Trial court did not abuse the court’s discretion in admitting evidence of the defendant’s prior attempts to manufacture methamphetamine because the state needed the evidence of the defendant’s prior drug conviction to show the defendant’s bent of mind and course of conduct with respect to the methamphetamine of- 303 General Consideration (Cont’d) fense at issue, criminal attempt to manufacture methamphetamine in violation of O.C.G.A. §§ 16-4-1 and 16-13-30(b); the defendant disclaimed any involvement with or knowledge of a methamphetamine laboratory. Newton v. State, 313 Ga. App. 889, 723 S.E.2d 95, 2012 Ga. App. LEXIS 104 (2012). Based on the defendant’s position that the defendant was not involved with a methamphetamine laboratory, as well as the similarity of the defendant’s prior drug crime with criminal attempt to manufacture methamphetamine, the trial court did not abuse the court’s discretion in admitting the evidence of the defendant’s prior attempts to manufacture methamphetamine for the purpose of showing the defendant’s bent of mind and course of conduct; the trial court was authorized to find that the probative value of the similar transaction evidence outweighed its prejudicial effect, and the trial court provided jury instructions that limited consideration of the similar transaction evidence to the appropriate purposes and provided guidance so as to diminish its prejudicial impact. Newton v. State, 313 Ga. App. 889, 723 S.E.2d 95, 2012 Ga. App. LEXIS 104 (2012). Admissibility of expert testimony. — Knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution was not necessarily within the scope of the ordinary layman’s knowledge and experience. Therefore, the testimony of a veteran police officer on the subject would be properly admissible under former O.C.G.A. § 24-9-67 (see now O.C.G.A. § 24-7-703). Davis v. State, 200 Ga. App. 44, 406 S.E.2d 555, 1991 Ga. App. LEXIS 762 (1991). Defendant’s argument that the evidence was insufficient to support defendant’s conviction for possession by ingestion of methamphetamine because the testimony of defendant’s expert witness, a forensic toxicologist with a private clinical reference laboratory, called into question the validity of the state crime lab report, was rejected because the determination of the credibility of defendant’s expert and the 16-13-30 effect of the expert’s testimony on the validity of the state crime lab report were for the jury. Poston v. State, 274 Ga. App. 117, 617 S.E.2d 150, 2005 Ga. App. LEXIS 679 (2005). Officer properly qualified as expert witness in drug possession and distribution. — In a prosecution for possession of cocaine with intent to distribute (O.C.G.A. § 16-13-30(b)), the trial court did not abuse the court’s discretion in qualifying the officer as an expert witness in drug possession and distribution as the arresting officer testified to making 35 to 40 drug-related arrests, about half of which were for possession with intent to distribute. Hight v. State, 293 Ga. App. 254, 666 S.E.2d 678, 2008 Ga. App. LEXIS 839 (2008). In the defendant’s trial for possession of methamphetamine with intent to distribute, the state properly laid the foundation for an investigator’s opinion that the amount of meth, the paraphernalia, and the cash on the defendant’s person were consistent with distribution: the investigator testified that the investigator had worked on the drug task force for seven years, had taken numerous courses, and came into contact with drug activity daily. Benton v. State, 356 Ga. App. 441, 847 S.E.2d 625, 2020 Ga. App. LEXIS 460 (2020), cert. denied, No. S21C0110, 2021 Ga. LEXIS 253 (Ga. Apr. 5, 2021). Testimony of confidential informant admissible. — When the confidential informant testified and was subject to cross-examination, the informant’s statement that the informant found out that the defendant was selling cocaine out of the defendant’s residence was admissible to explain the circumstances leading to the defendant’s arrest. Hamilton v. State, 242 Ga. App. 77, 528 S.E.2d 843, 2000 Ga. App. LEXIS 95 (2000). Revelation of the identity of a confidential informant. — Defendant was not entitled to the identity of a confidential informant (CI) who purchased cocaine from the defendant in two controlled buys because, to the extent that the defendant wished to call the CI to impeach the CI or the investigating officer’s testimony, the disclosure of the 304 CI’s identity was not required in that the investigating officer engaged in visual surveillance throughout the controlled buy operations and clearly observed the defendant when the defendant sold drugs to the CI and an audiotape recording of one controlled buy diminished the need for the CI to amplify or refute any conflicting testimony. Chandler v. State, 317 Ga. App. 406, 731 S.E.2d 88, 2012 Ga. App. LEXIS 715 (2012). Affidavit supporting search warrant not stale. — In a trial for possession of marijuana with intent to distribute, the trial court did not err in denying a motion to suppress a search warrant on the basis that a nine-month lapse from the crimes’ occurrences rendered stale the information contained in the affidavit in support of the warrant since the information in the affidavit was not so remote that it made it unlikely that the items sought would not have been in the defendant’s home at the time the warrant was issued. Amica v. State, 307 Ga. App. 276, 704 S.E.2d 831, 2010 Ga. App. LEXIS 1083 (2010), cert. denied, No. S11C0594, 2011 Ga. LEXIS 363 (Ga. Apr. 26, 2011). Suppression of evidence. — Motion to suppress illegally obtained evidence was properly granted. State v. Crank, 212 Ga. App. 246, 441 S.E.2d 531, 1994 Ga. App. LEXIS 205 (1994). Because the defendant did not grant consent to an officer to search the defendant’s purse, and no other exception to the warrant requirement allowing a search of the purse applied, the trial court properly granted suppression of the drugs seized from within the purse. State v. Fulghum, 288 Ga. App. 746, 655 S.E.2d 321, 2007 Ga. App. LEXIS 1284 (2007). Consequence of a defendant’s failure to contemporaneously object to the admission of evidence. — Despite the defendant’s contrary claim on appeal, because trial counsel failed to contemporaneously object to the introduction of the defendant’s own statement offering to sell narcotics to a confidential informant, the defendant waived any error regarding admission of the statement on appeal; moreover, because trial counsel failed to request a 16-13-30 mistrial or curative instruction regarding that evidence, the trial court’s failure to give such an instruction, sua sponte, was not erroneous. Williams v. State, 288 Ga. App. 741, 655 S.E.2d 674, 2007 Ga. App. LEXIS 1282 (2007). Suppression motion erroneously granted based on venue following traffic stop. — Grant of the defendant’s motion to suppress on the basis of venue was reversed because the state did not need to establish venue at the pretrial hearing on the defendant’s motion to suppress as it was not relevant to the issues raised in the motion, which challenged the reasonable basis for the traffic stop or whether the resulting search of the defendant and the defendant’s vehicle were supported by probable cause. State v. Wallace, 338 Ga. App. 611, 791 S.E.2d 187, 2016 Ga. App. LEXIS 510 (2016). Inconsistency in indictment caused no prejudice. — Defendant’s conviction for possession of a controlled substance was proper despite the indictment charging the defendant with possession of a controlled substance with intent to distribute because the allegations in the indictment tracked the language of possession of a controlled substance and fully apprised the defendant of the offense charged, the defendant failed to show that the defense was prejudiced in any way by the inconsistency between the denomination of the offense and the allegations in the indictment, and the defendant requested a jury charge on the offense of possession of a controlled substance as a lesser included offense of possession of a controlled substance with intent to distribute. Bryant v. State, 320 Ga. App. 838, 740 S.E.2d 772, 2013 Ga. App. LEXIS 286 (2013). “Ontrack system” test results for marijuana inadmissible. — State’s failure to present any evidence as to the characteristics, theory, operation, reliability, or scientific acceptability of “ontrack system” test performed on the defendant’s urine specimen at local jail to detect the presence of tetrahydrocannabinol rendered the results of the test inadmissible. Hubbard v. State, 207 Ga. App. 703, 429 S.E.2d 123, 1993 Ga. App. LEXIS 322 (1993). 305 General Consideration (Cont’d) Forfeiture statute. — Forfeiture statute, O.C.G.A. § 16-13-49, did not apply to a transaction involving an imitation controlled substance. White v. State, 264 Ga. 547, 448 S.E.2d 354, 1994 Ga. LEXIS 765 (1994). Forfeiture of vehicle not appropriate.— Denial of the state’s petition for forfeiture of the claimant’s vehicle was upheld because the trial court did not err in its analysis that the claimant’s possession of methamphetamine was a lesser offense than those in controlling case law and lacked connection to other crimes, thus, the forfeiture was not warranted. State v. Brophy, 368 Ga. App. 136, 889 S.E.2d 337, 2023 Ga. App. LEXIS 274 (2023). Plea bargaining. — Although the prosecutor incorrectly stated the minimum and maximum sentences in negotiating a plea bargain, defendant rejected the plea bargain and defendant’s decision was a fully informed one. Accordingly, denial of a new trial was proper because there was no showing that defendant was harmed by the misstatement. Hester v. State, 261 Ga. App. 614, 583 S.E.2d 274, 2003 Ga. App. LEXIS 722 (2003). Guilty pleas. — Because the defendant confirmed that the defendant was not under the influence of drugs, that the defendant was satisfied with counsel’s representation, and that the defendant wished to plead guilty to selling cocaine, the trial court did not err in accepting the guilty plea. McCloud v. State, 272 Ga. App. 609, 612 S.E.2d 907, 2005 Ga. App. LEXIS 333 (2005). Trial court did not abuse the court’s discretion by finding that a defendant’s guilty plea was voluntarily, knowingly, and intelligently made as to a conviction for possession of cocaine because the trial court had no obligation to inform the defendant of the possible collateral consequence of the revocation for a prior offense and, because the defendant was represented by counsel, the trial court properly presumed that the defendant’s counsel had informed the defendant of such a collateral consequence. Lamb v. State, 278 16-13-30 Ga. App. 97, 628 S.E.2d 165, 2006 Ga. App. LEXIS 238 (2006). Claimed errors on appeal deemed abandoned. — While the defendant argued that the state’s evidence was insufficient to support convictions on two counts of selling cocaine in violation of O.C.G.A. § 16-13-30(b), and cited the proper standard of review, due to the lack of argument, citation of authority, or citations to the record to support this position that claim was abandoned under Ga. Ct. App. R. 25(c)(2). Clark v. State, 285 Ga. App. 182, 645 S.E.2d 671, 2007 Ga. App. LEXIS 475 (2007). Ineffective assistance. — In a prosecution for selling marijuana and possessing marijuana with the intent to distribute, given that the state conceded that the state failed to file notice regarding the state’s intent to introduce a prior conviction as evidence in aggravation of punishment, the evidence was not introduced; as a result, defense counsel could not be found ineffective for failing to object to the introduction of the prior conviction. Allen v. State, 280 Ga. App. 663, 634 S.E.2d 831, 2006 Ga. App. LEXIS 921 (2006). Trial court did not err in denying the defendant’s motion for a new trial on the ground that the defendant’s trial counsel rendered ineffective assistance by failing to obtain an electronic enhancement of a videotape depicting a drug sale, which allegedly would have shown that defendant was not the perpetrator of the offense, because the defendant failed to show that the defendant was prejudiced as a result of trial counsel’s failure to obtain an electronic enhancement of the videotape prior to trial since the enhanced images failed to create a reasonable probability that the defendant was not the perpetrator depicted in the images; an undercover officer unequivocally identified the defendant as the perpetrator based upon the officer’s personal observations and independent memory of the defendant at the time of the drug sale, and although the defendant attempted to prove that another individual was the perpetrator depicted in the videotape’s images, the defendant failed to proffer sufficient evidence in support of the defen- 306 dant’s claim. Faulkner v. State, 304 Ga. App. 791, 697 S.E.2d 914, 2010 Ga. App. LEXIS 613 (2010). Counsel’s deficiency did not warrant a new trial. — While the defendant’s trial counsel was ineffective in failing to object to that portion of the state’s closing argument in which the prosecutor referenced a slain officer’s funeral a week prior, as that fact had no relevance to the charges the defendant was facing, based on the overwhelming evidence of guilt, including the defendant’s admission, the defendant’s convictions for trafficking in cocaine and possession of cocaine with intent to distribute were upheld on appeal; thus, a new trial was properly denied. Cantrell v. State, 290 Ga. App. 651, 660 S.E.2d 468, 2008 Ga. App. LEXIS 394 (2008). Procedure Notice requirement of O.C.G.A § 17-10-2(a) applies to mandatory life sentences imposed under O.C.G.A. § 16-13-30(d). Moss v. State, 206 Ga. App. 310, 425 S.E.2d 386, 1992 Ga. App. LEXIS 1619 (1992). In a prosecution for selling a controlled substance, imposition of a life sentence was improper where the state notified defendant of its intent to use previous drug convictions as similar transactions evidence but did not inform defendant of its intent to use the prior convictions in seeking the mandatory life sentence. Miller v. State, 219 Ga. App. 284, 464 S.E.2d 860, 1995 Ga. App. LEXIS 1015 (1995). Indictment sufficient. — Trial court’s decision overruling the defendant’s special demurrer to an indictment charging the defendant with trafficking in methamphetamine and misdemeanor possession of marijuana in violation of O.C.G.A. §§ 16-13-30(b) and 16-13-31(e) was authorized because the allegations of the indictment were sufficient to be easily understood by the jury, to allow the defendant to prepare the defendant’s defense, and to protect the defendant from double jeopardy; the indictment sufficiently set forth the date of the offenses and tracked the material language of the statutes proscribing the 16-13-30 charged offenses, and the language set forth in the counts against the codefendants separately designated the drugs upon which those charges were based and made clear that the defendant’s drug charges were not based upon the drugs allegedly possessed by those individual codefendants. Fyfe v. State, 305 Ga. App. 322, 699 S.E.2d 546, 2010 Ga. App. LEXIS 628 (2010), cert. denied, No. S10C1942, 2011 Ga. LEXIS 229 (Ga. Feb. 28, 2011), overruled in part, McNair v. State, 293 Ga. 282, 745 S.E.2d 646, 2013 Ga. LEXIS 594 (2013), overruled in part, Maddox v. State, 322 Ga. App. 811, 746 S.E.2d 280, 2013 Ga. App. LEXIS 617 (2013). Although the indictment did not explicitly allege that the XLR11 was not specifically utilized as part of the manufacturing process, the indictment was sufficient because the indictment put the defendant on notice of the factual allegations the defendant had to defend in court, of the specific dates involved, and of the defendant’s actions that constituted the alleged offenses. Budhani v. State, 345 Ga. App. 34, 812 S.E.2d 105, 2018 Ga. App. LEXIS 165 (2018), overruled in part, Willis v. State, 304 Ga. 686, 820 S.E.2d 640, 2018 Ga. LEXIS 685 (2018), aff’d, 306 Ga. 315, 830 S.E.2d 195, 2019 Ga. LEXIS 448 (2019). Defendant’s indictment for possessing and selling XLR11 withstood a general demurrer because the indictment alleged the essential elements of the offenses under O.C.G.A. § 16-13-30(b); under O.C.G.A. § 16-13-50(a), the state was not required to allege the affirmative defenses in O.C.G.A. § 16-13-25(12) such as that the XLR11 was intended for human consumption. Budhani v. State, 306 Ga. 315, 830 S.E.2d 195, 2019 Ga. LEXIS 448 (2019). Because the accusation charged defendant with unlawfully possessing a named controlled substance by tracking the language of the statute, it was legally sufficient and the trial court did not err by denying both the general demurrer and the plea in bar. Tate-Jesurum v. State, 368 Ga. App. 710, 890 S.E.2d 78, 2023 Ga. App. LEXIS 312 (2023). Poorly-worded charge. — Trial court did not err in allowing the manufacturing 307 Procedure (Cont’d) methamphetamine offense to proceed to the jury under O.C.G.A. § 16-13-30(b); despite the poor wording of the caption of the count at issue, which stated “trafficking in methamphetamine,” because the body of the count clearly charged the defendant with manufacturing methamphetamine, and the defendant failed to show how the defendant was misled by the presentment, nor did it expose the defendant to double jeopardy in violation of U.S. Const., amend. 5 or Ga. Const. 1983, Art. I, Sec. I, Para. XVIII. Gentry v. State, 281 Ga. App. 315, 635 S.E.2d 782, 2006 Ga. App. LEXIS 943 (2006), cert. denied, No. S07C0117, 2007 Ga. LEXIS 78 (Ga. Jan. 22, 2007). Refusal to sever charges. — Trial court did not abuse its discretion in failing to sever a charge against the defendant for possession of methamphetamine in violation of O.C.G.A. § 16-13-30(a) and a charge against the defendant for kidnapping with bodily injury in violation of O.C.G.A. § 16-5-40; when the defendant was arrested for possession, the kidnapping was ongoing, as the victim remained locked in the camper where the defendant had bound the victim, and it was not an abuse of discretion for a trial judge to deny a motion for severance where the crimes alleged were part of a continuous transaction and from the nature of the entire transaction, it would have almost been impossible to present to a jury evidence of one of the crimes without also permitting evidence of the other. Johnson v. State, 281 Ga. App. 7, 635 S.E.2d 278, 2006 Ga. App. LEXIS 983 (2006). No abuse of discretion in refusing to sever charges. — Trial court did not abuse the court’s discretion by refusing to sever a defendant’s drug charges from the defendant’s trial on a charge of influencing a witness because evidence of either crime would have been admissible at the trial of the other and the charged offenses were neither so numerous nor so complex that the jury was unable to parse the evidence and correctly apply the law with regard to each charge. Perry v. State, 16-13-30 317 Ga. App. 885, 733 S.E.2d 57, 2012 Ga. App. LEXIS 833 (2012). When possession and possession with intent to distribute may both be punished. — If a person intends to distribute only a designated part of narcotics which are possessed, both offense of possession and possession with intent to distribute may be punished. Howard v. State, 144 Ga. App. 208, 240 S.E.2d 908, 1977 Ga. App. LEXIS 2638 (1977). Merger. — Offense of manufacturing methamphetamine under O.C.G.A. § 16-13-30(b) was a lesser included offense of trafficking/manufacturing under O.C.G.A. § 16-31-31(f)(1); thus, the trial court was authorized to sentence a defendant for the greater offense after merging the lesser offense into it. Richards v. State, 290 Ga. App. 360, 659 S.E.2d 651, 2008 Ga. App. LEXIS 239 (2008). Selling merged into trafficking offense. — Convictions on counts for selling methamphetamine were lesser included offenses of convictions for trafficking in methamphetamine and, therefore, merged into the trafficking convictions. Nunery v. State, 229 Ga. App. 246, 493 S.E.2d 610, 1997 Ga. App. LEXIS 1369 (1997). No merger with misdemeanor DUI charge. — Defendant could be convicted on both felony possession of methamphetamine and driving under the influence of methamphetamine, a misdemeanor. Helmeci v. State, 230 Ga. App. 866, 498 S.E.2d 326. Possession and distribution of methamphetamine charges did not merge. — Possession of methamphetamine and distribution of methamphetamine charges did not merge under O.C.G.A. § 16-1-7 when defendant smoked methamphetamine in the company of a second person who later returned with a fresh supply of the drug with which defendant injected the second person; methamphetamine that defendant possessed while smoking constituted a separate amount of methamphetamine not accounted for in the distribution charge. Crutchfield v. State, 291 Ga. App. 24, 660 S.E.2d 878, 2008 Ga. App. LEXIS 427 (2008). 308 Possession and manufacturing did not merge. — Trial court did not err when the court failed to merge the count for possession of altered ephedrinepseudoephedrine into that for manufacture of methamphetamine because different conduct by the defendant resulted in the commission of both offenses. Mitchell v. State, 366 Ga. App. 854, 884 S.E.2d 535, 2023 Ga. App. LEXIS 92 (2023). New trial motion properly denied. — Upon convictions of possessing cocaine with intent to distribute and obstructing a law enforcement officer, the trial court properly denied the defendant’s motion for a new trial as: (1) a challenged juror affirmed the guilty verdict; (2) details about a government witness’s plea deal would not have changed the trial outcome; and (3) lab results confirming the purity of the contraband seized was sufficient to show that the substance defendant possessed was cocaine. Tate v. State, 278 Ga. App. 324, 628 S.E.2d 730, 2006 Ga. App. LEXIS 318 (2006). Upon convictions on two counts of selling cocaine, the trial court properly denied the defendant a new trial as the state’s commentary during opening and closing argument on the connection between illegal drugs and crime in the community was proper, no abuse of discretion resulted from the admission of the defendant’s booking mug shot, and the state’s identification witnesses could testify about their level of certainty in identifying the defendant. Clark v. State, 285 Ga. App. 182, 645 S.E.2d 671, 2007 Ga. App. LEXIS 475 (2007). Waiver of error in indictment. — Trial court did not err in permitting the state to try the defendant on both the sale of cocaine and trafficking in cocaine charge, after the prosecutor informed the defendant that the defendant would only be tried for the sale offense, and after the trial court excluded evidence of the trafficking crime as a similar transaction; by failing to object, the defendant waived any alleged error. Brockington v. State, 265 Ga. App. 13, 592 S.E.2d 858, 2003 Ga. App. LEXIS 1613 (2003). No fatal variance in indictment. — It was not a fatal variance to prosecute the defendants for possession of 16-13-30 amphetamine when the indictment alleged possession of methamphetamine. The defendants were well aware of the misnomer and were not surprised at trial since their defense was that the substance belonged to a codefendant, and the defendants were not subject to further prosecution for possession of amphetamine. Howard v. State, 291 Ga. App. 289, 661 S.E.2d 644, 2008 Ga. App. LEXIS 467 (2008). Indictment not final when pre-trial notice given. — When the defendant’s conviction on the first count of the instant four count indictment for violations of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., was not final at the time the state gave the state’s pre-trial notice of the state’s intent to seek a mandatory life sentence, the conviction on the first count could not be the basis for the imposition of a life sentence on either of the remaining counts of the indictment. Nunnally v. State, 203 Ga. App. 639, 417 S.E.2d 170, 1992 Ga. App. LEXIS 550 (1992), cert. denied, No. S92C0916, 1992 Ga. LEXIS 593 (Ga. June 25, 1992). Validity of indictment. — Although the indictment technically was partly inaccurate in that the state was required to prove that the defendant sold a Schedule II drug in violation of O.C.G.A. § 16-13-30(b), not that the defendant violated Schedule II, this inaccuracy did not invalidate the indictment because the facts stated in the indictment clearly indicated that the charged crime was an unlawful sale of methamphetamine, a Schedule II drug, to an undercover agent. Freeman v. State, 201 Ga. App. 216, 410 S.E.2d 749, 1991 Ga. App. LEXIS 1299 (1991), cert. denied, No. S92C0056, 1991 Ga. LEXIS 851 (Ga. Oct. 18, 1991). Pregnant woman could not have reasonably known that she could have been prosecuted for delivering or distributing cocaine to her fetus if she ingested the controlled substance while pregnant; the fetus was not a “person” within the meaning of the statute. State v. Luster, 204 Ga. App. 156, 419 S.E.2d 32, 1992 Ga. App. LEXIS 796 (1992), cert. denied, No. S92C1020, 1992 Ga. LEXIS 467 (Ga. June 4, 1992). State was not required to prove that crack cocaine was a Schedule II substance 309 Procedure (Cont’d) merely because the indictment alleged the defendant sold “Cocaine, a Schedule II Controlled Substance.” Wright v. State, 232 Ga. App. 104, 501 S.E.2d 543, 1998 Ga. App. LEXIS 593 (1998). Search and Seizure Anonymous tip serving as basis for investigatory stop. — An investigative stop of the defendant’s automobile which resulted in seizure of narcotics and the defendant’s arrest did not violate the Fourth Amendment when the anonymous tip which formed the basis for the stop had been sufficiently corroborated by the arresting officer’s recognition of the defendant as having been involved in an earlier drug investigation so as to furnish reasonable suspicion that the defendant was engaged in criminal activity. State v. Ball, 207 Ga. App. 729, 429 S.E.2d 258, 1993 Ga. App. LEXIS 320 (1993), cert. denied, No. S93C0921, 1993 Ga. LEXIS 566 (Ga. Apr. 15, 1993). Search of probationer’s residence. — Trial court properly denied the defendant’s motion to suppress because the court did not err in determining that the law-enforcement officers who searched the defendant’s home had reasonable suspicion to suspect criminal activity or violations of probation based on the probation officer’s concerns that the defendant was using drugs and attempting to avoid detection; thus, the search was conducted for probationary purposes, rather than for law-enforcement purposes. Whitfield v. State, 337 Ga. App. 167, 786 S.E.2d 547, 2016 Ga. App. LEXIS 286 (2016). First-tier encounter. — Trial court did not err in denying the defendant’s motion for new trial after the defendant was convicted of possession of cocaine because the court properly denied a motion to suppress the defendant’s statement to a police officer that the defendant had a crack pipe in a pocket; the initial interaction between the officer and the defendant was a first-tier consensual encounter, and thus, the defendant was free to disregard the officer’s questions and walk away. Minor v. 16-13-30 State, 314 Ga. App. 253, 723 S.E.2d 702, 2012 Ga. App. LEXIS 170 (2012). Trial court properly denied the defendant’s motion to suppress with regard to the defendant’s drug conviction because the case involved a first-tier encounter wherein the officer asked for consent to search, which was given by the defendant and, therefore, the search was not a seizure and did not require articulable suspicion. Carter v. State, 319 Ga. App. 624, 737 S.E.2d 724, 2013 Ga. App. LEXIS 30 (2013). Motion to suppress filed by a defendant charged with possession of marijuana and possession of a drug-related object, O.C.G.A. §§ 16-13-30(j)(1) and 16-13-32.2(a), should have been denied because a deputy’s question to the defendant, whether there was anything in the vehicle the deputy needed to know about, did not elevate a first-tier police-citizen encounter to a detention. State v. Martin, 337 Ga. App. 390, 787 S.E.2d 314, 2016 Ga. App. LEXIS 330 (2016). Scope of consent. — Given that a police officer was granted consent to search the defendant’s hotel room to search for the victim’s stolen truck keys, upon the officer’s receipt of an inconclusive response that a set of keys found could belong to the victim, a continued search, which yielded methamphetamine, was reasonable, and did not exceed the original scope of consent granted; thus, the trial court did not err in denying the defendant’s motion to suppress the drug evidence that officers found as a result of a continued search. Shuler v. State, 282 Ga. App. 706, 639 S.E.2d 623, 2006 Ga. App. LEXIS 1514 (2006). State failed to prove that an officer’s opening of a pill container found in the defendant’s pocket was justified based on consent, when the defendant only consented to the removal of the pill box from the defendant’s pocket, and the box was not immediately identifiable as contraband. Defendant’s convictions on controlled substances charges were reversed. McCormack v. State, 325 Ga. App. 183, 751 S.E.2d 904, 2013 Ga. App. LEXIS 985 (2013). 310 Invalid consent. — Any implied consent by the defendant emptying the defendant’s own pockets while one officer had the officer’s stungun pointed at the defendant rendered the “consent” invalid. State v. Williams, 281 Ga. App. 187, 635 S.E.2d 807, 2006 Ga. App. LEXIS 1022 (2006). Oxycodone found in the glove box of a car was inadmissible because the oxycodone was discovered pursuant to a consent search that was the product of an unauthorized traffic stop. The officer had no reasonable suspicion to justify stopping the defendants other than that the defendants’ car was “out of place” at an empty truck stop parking lot. Groves v. State, 306 Ga. App. 779, 703 S.E.2d 371, 2010 Ga. App. LEXIS 1052 (2010). In the state’s appeal, the trial court did not err in granting the defendant’s motion to suppress because the court did not err in finding that the officers’ detention of the defendant was unreasonable as the defendant’s consent to the search of the defendant’s purse was the product of an illegal detention, thus, it was not valid. State v. Allen, 330 Ga. App. 752, 769 S.E.2d 165, 2015 Ga. App. LEXIS 56 (2015). Valid consent. — Trial court did not err by denying the defendant’s motion to suppress because the evidence established that the defendant’s consent was voluntary in that the defendant signed the consent forms, gave the officer the key to the home, and the record showed that during the defendant’s detention, no interrogation or questioning occurred, and the duration of the detention was not overly long; further, the defendant did not appear intoxicated, spoke fluent English, was not being punished or threatened, and the consent came after the defendant spontaneously sought out the officer to talk. Durham v. State, 320 Ga. App. 81, 739 S.E.2d 389, 2013 Ga. App. LEXIS 125 (2013). Valid consent from handcuffed defendant. — Defendant’s conviction for possession of cocaine with the intent to distribute was upheld on appeal as the defendant failed to establish that the motion to suppress would have been granted had counsel not waived the issue because, even in handcuffs, the defendant 16-13-30 voluntarily consented to the search of the vehicle and the defendant failed to show that the consent was invalid. Blitch v. State, 323 Ga. App. 677, 747 S.E.2d 863, 2013 Ga. App. LEXIS 709 (2013). Pat-down search exceeded permissible scope. — Because the state introduced no evidence that the defendant consented to an officer’s opening of a matchbox retrieved from the defendant’s pants, the officer was not concerned that a weapon was hidden in the box, and the box was not readily identifiable as contraband, the search of the defendant’s person exceeded the permissible scope of a pat-down for weapons, requiring suppression of the cocaine found inside the matchbox. Mason v. State, 285 Ga. App. 596, 647 S.E.2d 308, 2007 Ga. App. LEXIS 594 (2007). Pat-down search proper. — Trial court did not err in denying the defendant’s motion to suppress drug evidence found on the defendant’s person because the defendant’s detention and pat-down was justified; a narcotics investigator was justified in believing that the investigator’s safety was at risk based on the circumstances, including that officers were searching a house to execute an arrest warrant for a resident thereof, suspicion of drug activity at the house had been reported by neighbors, and the defendant, who was sitting up in bed, failed to comply with the investigator’s repeated commands that the defendant display the defendant’s hands, which were obscured under the covers. Jones v. State, 314 Ga. App. 247, 723 S.E.2d 697, 2012 Ga. App. LEXIS 174 (2012). Plain feel doctrine. — Trial court did not err in denying the defendant’s motion to suppress drug evidence found on the defendant’s person because the seizure of the items in the defendant’s pockets was lawful; under the plain feel doctrine, a narcotics investigator was entitled to seize the item, and the evidence was properly admitted; it was unnecessary for the investigator to conclusively identify what type of drug the defendant was carrying in order for the plain feel doctrine to make the seizure of the contraband lawful. Jones v. State, 314 Ga. App. 247, 723 S.E.2d 697, 2012 Ga. App. LEXIS 174 (2012). 311 Search and Seizure (Cont’d) Safety frisk justified. — Trial court properly denied the defendant’s motion to suppress the contraband found on the defendant’s person as a result of a traffic stop that came to fruition after an officer observed the defendant making a U-turn in front of a recently robbed bank because the defendant admitted to having a knife in the defendant’s pocket but refused to remove the defendant’s hand therefrom. As a result, the police were justified in frisking the defendant for safety reasons and the contraband was, therefore, legally obtained from the defendant. Johnson v. State, 289 Ga. App. 27, 656 S.E.2d 161, 2007 Ga. App. LEXIS 1315 (2007). Vehicle stop for seatbelt violation. — When the officer testified that the officer had a clear and unobstructed view of the driver of the vehicle not wearing a seat belt, this view was sufficient to establish probable cause for the stop, and once the vehicle was lawfully stopped, the officer was allowed to ask for the driver’s consent to search the car. State v. Millsap, 243 Ga. App. 519, 528 S.E.2d 865, 2000 Ga. App. LEXIS 103 (2000). With regard to a defendant’s convictions for possession of methamphetamine with intent to distribute, possession of a firearm during the commission of a drug offense, and carrying a concealed weapon, the trial court properly denied the defendant’s motion to suppress the items seized from the defendant’s vehicle and the defendant’s person after a traffic stop as the defendant’s failure to wear a seatbelt and to have insurance on the vehicle justified the traffic stop. Thereafter, after being released from the traffic stop and being asked to come back, the defendant consented to the search of the vehicle and of the defendant’s person, which led to the seizure of the contraband. Hughes v. State, 293 Ga. App. 404, 667 S.E.2d 163, 2008 Ga. App. LEXIS 949 (2008). Defendant’s conviction on one count of felony possession of marijuana was upheld on appeal and the trial court did not err in denying the defendant’s motion to suppress based on the defendant’s assertion that the initial traffic stop was illegal because the initial stop, as well as the 16-13-30 brief detention, was authorized as a result of the officer observing the defendant not wearing a seat belt. Davis v. State, 318 Ga. App. 166, 733 S.E.2d 453, 2012 Ga. App. LEXIS 872 (2012). Vehicle stop due to broken taillight. — Trial court properly denied a defendant’s motion to suppress the evidence of drug contraband found in the defendant’s vehicle after the vehicle was stopped due to a broken taillight as the officers had the right to detain the defendant while awaiting word as to possible outstanding warrants; a certified drug recognition expert questioned the defendant and observed the defendant having bloodshot eyes, droopy eyelids, and displaying relaxed inhibitions; and the defendant sufficiently and voluntarily consented to the search of the vehicle as was shown on a videotape of the traffic stop, despite the defendant being handcuffed at the time. Maloy v. State, 293 Ga. App. 648, 667 S.E.2d 688, 2008 Ga. App. LEXIS 1033 (2008). Investigatory detention to search for weapon. — After the subject of an investigative stop at an airport admitted the presence of a weapon, and the officers then removed that subject to the airport precinct for further investigation, the detention was reasonable under the circumstances, and evidence uncovered of illegal possession of a controlled substance during a subsequent search conducted with the subject’s voluntary consent was improperly suppressed. State v. Crisanti, 220 Ga. App. 705, 470 S.E.2d 314, 1996 Ga. App. LEXIS 345 (1996). Probable cause for arrest. — Police search of a defendant’s bag and person, which produced handguns, cocaine, cash, and other drugs was lawful because the search was made pursuant to the police officers’ lawful warrantless arrest of the defendant when the defendant arrived at a motel room exactly answering a detailed description provided by a confidential informant, who stated that the defendant would be carrying a shoulder bag containing drugs and a loaded handgun. Green v. State, 302 Ga. App. 388, 691 S.E.2d 283, 2010 Ga. App. LEXIS 135 (2010). Trial court did not err in denying the defendant’s motion to suppress evidence a 312 police officer recovered from a rental car because the officer had reasonable grounds for detaining the defendant since the officer found the defendant and a friend in the parking lot of a closed business late at night, knew that several burglaries and thefts had occurred in the area recently, and observed that the defendant and the friend appeared to be nervous when the officer spoke with them; in the course of securing a firearm the officer saw a firearm in the center console of the rental car, the officer saw in plain view a digital scale with white residue, affording the officer probable cause to effect a custodial arrest of the defendant. Culpepper v. State, 312 Ga. App. 115, 717 S.E.2d 698, 2011 Ga. App. LEXIS 905 (2011). Defendant’s motion for independent expert to examine seized substances rejected. — Trial court did not err in refusing to grant a continuance to allow an independent expert chemist of defendant’s choice sufficient time to analyze the seized controlled substances and testify at trial since the defendant did not move to have this expert appointed until after the trial had commenced, the earliest possible time the expert could testify would be the end of the week, and the court expected the trial to be over by that time, but expressed the court’s willingness to appoint someone else who would not unduly delay the trial. Dixon v. State, 180 Ga. App. 222, 348 S.E.2d 742, 1986 Ga. App. LEXIS 2685 (1986). Shared curtilage affects admissibility. — It is confusing to combine the concepts of “common area” and “curtilage” in deciding whether a particular area adjoining an apartment building is entitled to protection; therefore, the test should be the reasonableness of the resident’s expectation of privacy and the officer’s reasons for being in the yard. Espinoza v. State, 265 Ga. 171, 454 S.E.2d 765, 1995 Ga. LEXIS 156 (1995). Evidence was not within the curtilage shared by two units in a duplex where it was not found in the hallway leading to both units or in the front yard between two driveways leading to the dwelling. Because the evidence was located in the 16-13-30 yard outside the driveway leading to defendant’s unit, an area where defendant had a reasonable expectation of privacy, i.e., a part of the curtilage of defendant’s unit, for which police did not have a search warrant, the evidence should have been suppressed. Espinoza v. State, 265 Ga. 171, 454 S.E.2d 765, 1995 Ga. LEXIS 156 (1995). Wooded area not part of curtilage. — In woods 50 yards from the defendant’s home, police found items used to manufacture methamphetamine under a tarp. The wooded area where the contraband was found was not so closely tied to the defendant’s home as to warrant protection as curtilage under the Fourth Amendment. Minor v. State, 298 Ga. App. 391, 680 S.E.2d 459, 2009 Ga. App. LEXIS 687 (2009), cert. denied, No. S09C1744, 2009 Ga. LEXIS 771 (Ga. Nov. 9, 2009). Use of a trained drug detection dog. — Record supported the trial court’s judgment that a vehicle checkpoint that was established to check drivers’ licenses, registrations, and proof of insurance was established for a legitimate purpose, that a police officer did not violate defendant’s rights when the officer walked a drug detection dog around defendant’s car while another officer was checking the validity of defendant’s driver’s license, and that police had probable cause to search defendant’s car after the dog alerted on it, and the trial court properly denied a motion to suppress evidence which defendant filed after defendant was charged with trafficking in cocaine and possession of cocaine with intent to distribute, and convicted defendant of both offenses. McCray v. State, 268 Ga. App. 84, 601 S.E.2d 452, 2004 Ga. App. LEXIS 851 (2004). Search for heroin or cocaine prior to arrest. — Totality of circumstances provided sufficient probable cause to arrest and search defendant at airport for possession of heroin or cocaine, and fact that search preceded arrest rather than vice versa was not particularly important where formal arrest followed quickly on heels of search. Berry v. State, 163 Ga. App. 705, 294 S.E.2d 562, 1982 Ga. App. LEXIS 3242 (1982). Entrapment. — Defendant’s testimony, corroborated by a paid 313 Search and Seizure (Cont’d) informant, established a prima facie case of entrapment. There was no evidence introduced that, prior to the defendant’s entrapment, defendant had a predisposition to deliver, sell, distribute, or knowingly possess cocaine as forbidden by O.C.G.A. § 16-13-30(b). Since the state failed to introduce evidence to rebut the affirmative defense of entrapment, the defendant was entitled to a directed verdict of acquittal. Hill v. State, 261 Ga. 377, 405 S.E.2d 258, 1991 Ga. LEXIS 322 (1991). Entrapment defense was properly rebutted. — Trial court properly denied the defendant’s motion for a new trial because even assuming that the defendant established a prima facie case of entrapment, the jury was authorized to find the state’s evidence rebutted that defense beyond a reasonable doubt as the jury heard an audio recording of the defendant boasting that the defendant had sold a gram of heroin for $65 and that no one could get clean off of the defendant’s product; thus, there was some evidence to disprove entrapment. Johnson v. State, 355 Ga. App. 683, 845 S.E.2d 419, 2020 Ga. App. LEXIS 370 (2020). Ineffective assistance of counsel claim dismissed despite defendant’s claim of working with police. — After the defendant was convicted of selling cocaine, the trial court did not err in denying the defendant’s claim of ineffective assistance of counsel since the defendant failed to show that counsel did not adequately prepare for trial or that counsel’s performance was deficient and that such deficiency prejudiced the defendant’s defense that the defendant was working with the police and had made the sale as part of an attempt to catch another drug dealer. Sullivan v. State, 259 Ga. App. 708, 578 S.E.2d 277, 2003 Ga. App. LEXIS 242 (2003). Nervousness in the presence of police officers does not provide reasonable articulable suspicion. — When officers testified the officers observed a black male exit a breeze way known for drug sales and walk in a hurried fashion toward the male’s car, 16-13-30 becoming nervous when seeing the officers, this activity does not amount to the reasonable articulable suspicion required for a Terry stop. Peters v. State, 242 Ga. App. 816, 531 S.E.2d 386, 2000 Ga. App. LEXIS 352 (2000). Nervousness inadequate for prolonging detention. — As an officer did not detain a defendant for an unreasonable length of time after a traffic stop, the fact that the defendant’s nervousness alone did not provide the officer with reasonable suspicion to prolong the detention was immaterial as the defendant consented to a search of the defendant’s vehicle. As there was no Fourth Amendment violation, methamphetamine and drug paraphernalia found during the search did not have to be suppressed. McKnight v. State, 296 Ga. App. 38, 673 S.E.2d 573, 2009 Ga. App. LEXIS 122 (2009). Traffic stop concluded. — After issuing a courtesy warning ticket for a seatbelt violation to defendant, the traffic stop was concluded and defendant’s continued detention was excessive because the officer’s testimony did not establish reasonable suspicion of criminal activity. State v. Cunningham, 246 Ga. App. 663, 541 S.E.2d 453, 2000 Ga. App. LEXIS 1323 (2000). Traffic stop not unreasonably prolonged. — After an officer stopped a defendant for speeding at 3:32 A.M., the officer was given two different names for the defendant’s intoxicated teenaged passenger; neither name was in the system. As the officer testified that in 90 percent of the cases, this meant that there was an outstanding warrant, suspension, probation, or parole, the officer had reasonable grounds to prolong the traffic stop; therefore, the methamphetamine the officer found in a consent search of a box hidden under the defendant’s leg did not have to be suppressed. Matthews v. State, 294 Ga. App. 836, 670 S.E.2d 520, 2008 Ga. App. LEXIS 1329 (2008). As an officer’s questioning of the defendant, after a traffic stop, about the defendant’s length of time in Georgia was done to determine whether the defendant was in compliance with O.C.G.A. §§ 40-2-8(a) and 40-5-20(a), and did not unreasonably 314 prolong the stop, the defendant’s rights under U.S. Const., amend. IV were not violated. Therefore, methamphetamine seized from the defendant’s purse during the stop did not have to be suppressed. Sommese v. State, 299 Ga. App. 664, 683 S.E.2d 642, 2009 Ga. App. LEXIS 925 (2009). State trooper’s request to search a defendant’s vehicle after telling the defendant that the defendant was free to go did not unreasonably prolong the detention and did not violate the defendant’s Fourth Amendment rights. Therefore, the four pounds of marijuana found during the search was not subject to suppression. Davis v. State, 303 Ga. App. 785, 694 S.E.2d 696, 2010 Ga. App. LEXIS 336 (2010), cert. denied, No. S10C1405, 2010 Ga. LEXIS 716 (Ga. Sept. 20, 2010). Search of vehicle incident to arrest for driving under suspension. — Though central dispatch advised an officer that the defendant had not been served with notice of suspension of the defendant’s license, the officer had probable cause to arrest the defendant for driving under suspension (O.C.G.A. § 40-5-121) as the officer had no way of knowing whether the defendant had obtained actual or constructive notice of the suspension by other means. Thus, drugs found in a search of the defendant’s car incident to the arrest were admissible; the trial court’s ultimate conclusion that the defendant did not have notice of the suspension did not “retroactively vitiate” the probable cause supporting the arrest. Johnson v. State, 297 Ga. App. 254, 676 S.E.2d 884, 2009 Ga. App. LEXIS 449 (2009). Initial approach of vehicle justified. — Officers’ initial approach of defendant’s vehicle and request for consent to search were warranted, even without an articulable suspicion of criminal activity at the time of their approach; moreover, even if a reasonable articulable suspicion of criminal activity had been required to briefly detain defendant, the officers had such suspicion upon seeing: (1) individuals approach defendant’s car in an area known for drug activity; (2) the individuals turn and walk away upon seeing the police; and (3) defendant’s 16-13-30 passenger swallowing what appeared to be a crack rock as the police approached. Sego v. State, 279 Ga. App. 484, 631 S.E.2d 505, 2006 Ga. App. LEXIS 615 (2006). Consent search during sobriety roadblock. — With regard to a defendant being charged with possessing drugs, the trial court properly denied the defendant’s motion to suppress the drugs found in the defendant’s vehicle during a sobriety roadblock as the roadblock was legal and the defendant voluntarily consented to the search. Britt v. State, 294 Ga. App. 142, 668 S.E.2d 461, 2008 Ga. App. LEXIS 1088 (2008). Passenger’s behavior provided reasonable suspicion and consent search authorized. — In a prosecution for possession of methamphetamine and hydrocodone, a passenger, when questioned by police, was fidgety and nervous, stuttered, would not make eye contact, and fell after exiting the car. The passenger’s behavior gave police reasonable suspicion to believe that the passenger had taken drugs, which justified the police in detaining the passenger and the defendant (who was the driver) while the police conducted a consent search of the car, which belonged to the passenger’s boss. Robinson v. State, 295 Ga. App. 136, 670 S.E.2d 837, 2008 Ga. App. LEXIS 1336 (2008), cert. denied, No. S09C0622, 2009 Ga. LEXIS 211 (Ga. Apr. 20, 2009). Defendant never withdrew consent to search. — With regard to a defendant’s conviction for possession of methamphetamine, the trial court properly denied the defendant’s motion to suppress the drugs found on the defendant’s person as the police obtained the defendant’s consent to search the defendant’s person and the defendant’s failure to produce all of the items from the defendant’s pockets did not amount to a withdrawal of the consent to search. Allison v. State, 293 Ga. App. 447, 667 S.E.2d 225, 2008 Ga. App. LEXIS 968 (2008). Voluntary consent to search hotel room. — Trial court did not err in denying a motion to suppress evidence a police officer seized in a hotel room because the 315 Search and Seizure (Cont’d) trial court was authorized to find that the state satisfied the state’s burden of showing that the defendant’s consent to enter the hotel room was voluntary and not the product of coercion, express or implied; the officer’s testimony and the defendant’s statement supported a finding that the officer requested and received the defendant’s consent to enter the hotel room under circumstances that did not suggest either coercion or threat, and the trial court was authorized to infer that the defendant’s consent to search was freely given in the calculated hope that the officer would not find the hidden contraband. Liles v. State, 311 Ga. App. 355, 716 S.E.2d 228, 2011 Ga. App. LEXIS 721 (2011). Group search. — Trial court erred in granting the defendant’s motion to suppress evidence of contraband, namely, defendant’s possession of marijuana, as police officer’s discovery of the marijuana was not pursuant to an impermissible pat-down search that two other officers conducted on a group of students, including the defendant, but was pursuant to the defendant’s invitation for the officer to search the defendant after the officer asked the defendant why the defendant’s license had been suspended; however, a remand was necessary to determine whether the defendant’s consent to search was voluntarily given. State v. Baker, 261 Ga. App. 258, 582 S.E.2d 133, 2003 Ga. App. LEXIS 562 (2003). Consent of probationer to search. — When officers went to a defendant’s residence to conduct a probation search based on a tip that the defendant was involved with drugs as the defendant willingly led the officers to a concealed gun, and voluntarily furnished a urine sample that tested positive for methamphetamine, the defendant gave valid consent to the search, which eliminated the need for either probable cause or a search warrant under U.S. Const., amend. IV. Brooks v. State, 285 Ga. 424, 677 S.E.2d 68, 2009 Ga. LEXIS 155 (2009). Failure to file timely motion. — In a prosecution for possession of cocaine with 16-13-30 intent to distribute, because the defendant failed to voice an objection at trial regarding an inaccuracy in a search warrant affidavit as to the precise location of the alleged cocaine sale which served as the basis of the charge, but instead raised the objection for the first time in a motion for a new trial, the objection was late; thus, the appellate court’s review of the motion was waived. Jackson v. State, 281 Ga. App. 368, 636 S.E.2d 34, 2006 Ga. App. LEXIS 988 (2006). Suppression motion improperly granted. — Because the evidence gathered while the defendant’s residence was under surveillance, including the contents of the defendant’s garbage as well as an officer’s specific testimony regarding marijuana residue found on a piece of plastic wrap, supported a finding of probable cause necessary to justify the issuance of a search warrant for the defendant’s residence, suppression of the evidence seized as a result of the execution of the search warrant was improper. State v. Davis, 288 Ga. App. 164, 653 S.E.2d 311, 2007 Ga. App. LEXIS 1049 (2007). Evidence seized from search based on valid arrest warrant. — Trial court did not err in denying the defendant’s motion to suppress evidence found on the defendant’s person because officers’ search of a resident’s house, where the officers found the defendant with a methamphetamine pipe, was legal since the police reasonably believed that the resident was in the house at the time of their entry based upon information from a neighbor and the fact that the vehicle registered to the resident was parked in front of the house; because the police had a valid arrest warrant for the resident and limited their search to those areas where the resident could be located, the fact that the officers could have been motivated to enter the house to search for drugs was immaterial and did not render the entry and subsequent seizure of evidence from the defendant illegal. Jones v. State, 314 Ga. App. 247, 723 S.E.2d 697, 2012 Ga. App. LEXIS 174 (2012). Trial court did not err in denying the defendant’s motion to suppress evidence seized from a residence because an inves- 316 tigator’s knowledge was not so remote that it made it unlikely that methamphetamine manufacturing activities would be found at the premises at the time the warrant was issued; the investigator’s knowledge coincided with an officer’s detection of a strong odor of ether at the premises, and the search warrant was both issued and executed on the same day that the odor was detected. Newton v. State, 313 Ga. App. 889, 723 S.E.2d 95, 2012 Ga. App. LEXIS 104 (2012). Sufficient probable cause for issuance of search warrant. — Trial court did not err in denying the defendant’s motion to suppress evidence seized from a residence because the totality of the circumstances presented probable cause supporting the magistrate’s issuance of a search warrant of the premises; in addition to the strong odor of ether, a DEA-trained officer knew that the odor was indicative of a methamphetamine laboratory operation, there was a prior report that a methamphetamine laboratory was being operated on the premises, and a co-defendant had previously admitted to selling methamphetamine. Newton v. State, 313 Ga. App. 889, 723 S.E.2d 95, 2012 Ga. App. LEXIS 104 (2012). Insufficient probable cause for issuance of search warrant. — Trial court erred in denying the appellant’s petition for the return of the seized business records, currency, and edible products containing delta-8-THC and delta-10-THC because the warrant authorizing the search of its warehouse and seizure of items therefrom was not supported by probable cause since delta-8-THC and delta-10-THC were not controlled substances for purposes of criminal liability for possession or sale of a controlled substance. Elements Distribution, LLC v. State of Georgia, 369 Ga. App. 844, 894 S.E.2d 641, 2023 Ga. App. LEXIS 535 (2023). Presence in high drug area insufficient for stop. — Officer did not have specific articulable facts sufficient to give rise to a reasonable suspicion of criminal activity and therefore the court should have granted the defendant’s motion to suppress the cocaine and 16-13-30 marijuana evidence. Specifically, while the officer believed that the defendant was involved in a criminal activity because the defendant briefly visited a motel located in a high drug area, and the defendant’s brief visit was consistent with drug activity, a person’s mere presence in a high crime area does not give rise to reasonable suspicion of criminal activity, even if police observe conduct which the police believe consistent with a general pattern of such activity. Adkinson v. State, 322 Ga. App. 1, 743 S.E.2d 563, 2013 Ga. App. LEXIS 433 (2013). Odor constitutes sufficient probable cause for issuance of search warrant. — Trial court erred in granting the defendant’s motion to suppress by ruling that the odor of marijuana alone could not establish the requisite probable cause for the issuance of a search warrant for a residence as the appellate court overruled the holding in State v. Pando, 284 Ga. App. 70 (2007), that the presence of odors could never be the sole basis for the issuance of a search warrant; and determined that, if the affidavit for the search warrant contained sufficient information for a magistrate to determine that the officer who detected the odor of marijuana emanating from a specified location was qualified to recognize the odor, the presence of such an odor could be the sole basis for the issuance of a search warrant. State v. Kazmierczak, 331 Ga. App. 817, 771 S.E.2d 473, 2015 Ga. App. LEXIS 250 (2015). If the affidavit for the search warrant contains sufficient information for a magistrate to determine that the officer who detected the odor of marijuana emanating from a specified location is qualified to recognize the odor, the presence of such an odor may be the sole basis for the issuance of a search warrant; to the extent that the holdings in Patman v. State, 244 Ga. App. 833 (2000), Shivers v. State, 258 Ga. App. 253 (2002), State v. Fossett, 253 Ga. App. 791 (2002), State v. Charles, 264 Ga. App. 874 (2003), Boldin v. State, 282 Ga. App. 492 (2006), and Martinez-Vargas v. State, 317 Ga. App. 232 (2012), can be interpreted as support for the premise that the odor of raw marijuana emanating from a particular location cannot be the 317 Search and Seizure (Cont’d) sole basis for the issuance of a search warrant for that location, such interpretations are disapproved. State v. Kazmierczak, 331 Ga. App. 817, 771 S.E.2d 473, 2015 Ga. App. LEXIS 250 (2015). Controlled buys demonstrated reliability of informant justifying search. — With regard to drug-related convictions, the trial court properly denied the defendant’s motion to suppress because the search warrant was supported by probable cause in that the confidential informant took a position against penal interest by reporting to officers that the informant bought drugs from the defendant, the officer stated that the information supplied by the confidential informant was confirmed by conducting three controlled drug purchases from the defendant, and the controlled buys strongly corroborated the reliability of the informant and demonstrated a fair probability that contraband would be found in the defendant’s house. Reid v. State, 321 Ga. App. 653, 742 S.E.2d 166, 2013 Ga. App. LEXIS 367 (2013). Possession Unlawful possession of any controlled substance, regardless of amount, constitutes an offense. Scott v. State, 170 Ga. App. 409, 317 S.E.2d 282, 1984 Ga. App. LEXIS 2888, aff’d, 253 Ga. 147, 317 S.E.2d 830, 1984 Ga. LEXIS 855 (1984). Possession as lesser included offense of conspiracy to purchase marijuana. — Trial court did not plainly err by failing to instruct the jury on possession of marijuana as a lesser-included offense of conspiracy to purchase marijuana because the offense of possession of marijuana was not a lesser-included offense of conspiracy to purchase marijuana as the facts necessary to prove each offense were different. Hunter v. State, 355 Ga. App. 520, 844 S.E.2d 858, 2020 Ga. App. LEXIS 346 (2020). Possession not included in crime of manufacturing. — Possession of marijuana is not a necessary element of 16-13-30 the crime of knowingly manufacturing marijuana by cultivating or planting, and so misdemeanor possession is not a lesser offense included in the crime of manufacturing as a matter of law. Galbreath v. State, 213 Ga. App. 80, 443 S.E.2d 664, 1994 Ga. App. LEXIS 459 (1994); Hunt v. State, 222 Ga. App. 66, 473 S.E.2d 157, 1996 Ga. App. LEXIS 537 (1996), cert. denied, No. S96C1728, 1996 Ga. LEXIS 1005 (Ga. Oct. 11, 1996). Possession included in offense of possession with intent to distribute. — Offense of possession of marijuana was a lesser included offense of the offense of possession of marijuana with intent to distribute, where the possession charge could be established by proof of a less culpable mental state (general criminal intent) than was required to establish the commission of possession with intent to distribute (specific criminal intent to distribute). Talley v. State, 200 Ga. App. 442, 408 S.E.2d 463, 1991 Ga. App. LEXIS 1059 (1991). Possession of marijuana is a lesser included offense of the offense of possession of marijuana with intent to distribute as a matter of law. Hardeman v. State, 216 Ga. App. 165, 453 S.E.2d 775, 1995 Ga. App. LEXIS 55 (1995). Evidence sufficient to prove possession and intent to distribute. — Evidence that small baggies of cocaine were found in a large plastic bag on the ground, where the defendant had been observed dropping what appeared to the officer to be a baseball-size clear looking bag, permitted a rational trier of fact to infer that the defendant had been in possession of the cocaine. Ample evidence showed the defendant’s intent to distribute the cocaine. Barber v. State, 317 Ga. App. 600, 732 S.E.2d 125, 2012 Ga. App. LEXIS 772 (2012). Sufficient evidence supported the defendant’s conviction for possession of cocaine with the intent to distribute because the jury could infer from a narcotics officer’s expert opinion testimony that the defendant possessed the cocaine with the intent to distribute the cocaine, given the way the defendant concealed the drugs, the way the drugs were packaged for street sale, the amount of drugs on the defen- 318 dant’s person, and the fact that the defendant lacked a device for using the drugs. Moreover, the jury could infer that the defendant was selling drugs given that a citizen alerted the police to suspicious activity at the address where the defendant was found and because the defendant was lingering around a house that was not the defendant’s home, late at night, in a high drug-sales area, without a credible explanation. Thomas v. State, 321 Ga. App. 214, 741 S.E.2d 298, 2013 Ga. App. LEXIS 340 (2013), cert. denied, No. S13C1182, 2013 Ga. LEXIS 777 (Ga. Sept. 23, 2013), overruled in part, Langley v. State, 313 Ga. 141, 868 S.E.2d 759, 2022 Ga. LEXIS 14 (2022). Appellate court refused to disturb the jury’s verdict convicting the defendant of possession of drugs with the intent to distribute because after hearing the evidence and having the opportunity to judge the credibility of the witnesses, the jury properly concluded that the only reasonable hypothesis was that the defendant possessed the drugs found hidden in the kitchen, despite the defendant’s argument that others had equal access. King v. State, 325 Ga. App. 777, 755 S.E.2d 22, 2014 Ga. App. LEXIS 74 (2014). Evidence was sufficient to convict the defendant of possession of marijuana with intent to distribute because the marijuana found in the stolen car was packaged in nine individual baggies, with eight of the baggies contained in a larger plastic bag on the driver’s side floorboard and the ninth baggie on the passenger seat; the sheriff’s investigator testified that, based on the sheriff’s training and experience, the marijuana was packaged in a manner commonly used for distribution; the victim, who had the victim’s car stolen, testified at trial that the marijuana did not belong to the victim; and any rational trier of fact could infer that the defendant possessed marijuana, a controlled substance, with intent to distribute. McNorrill v. State, 338 Ga. App. 466, 789 S.E.2d 823, 2016 Ga. App. LEXIS 472 (2016). Evidence was sufficient to convict the defendant of possession of methamphetamine, possession of methamphetamine with intent to distribute, and two counts of possession of drug-related objects as the 16-13-30 state presented ample evidence of the defendant’s constructive possession of the methamphetamine and drug paraphernalia found inside a fabric bag because the contraband was found in the defendant’s residence, which authorized a jury to presume that the defendant possessed it; a witness testified that the defendant and another individual sold methamphetamine; and a law-enforcement officer testified that the items contained in the bag, such as separate baggies and a digital scale, showed an intent to distribute drugs. Duncan v. State, 346 Ga. App. 777, 815 S.E.2d 294, 2018 Ga. App. LEXIS 387 (2018), overruled, Hill v. State, 360 Ga. App. 143, 860 S.E.2d 893, 2021 Ga. App. LEXIS 318 (2021). Conspiracy to possess marijuana with intent to distribute is not a lesser included offense of possession. Rowe v. State, 181 Ga. App. 492, 352 S.E.2d 813, 1987 Ga. App. LEXIS 2543 (1987). Prima facie case of unlawful possession of controlled substance. — If state proves that the defendant possessed controlled substance in a container without a label indicating a valid prescription, the state has established a prima facie case and shifts to the defendant the burden of going forward with evidence showing that the defendant’s possession was under a valid prescription or that the defendant was otherwise exempted from the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq. Nix v. State, 135 Ga. App. 672, 219 S.E.2d 6, 1975 Ga. App. LEXIS 1778 (1975). Head of household presumption of possession of contraband found therein is no longer a viable presumption in Georgia. Ramsay v. State, 175 Ga. App. 97, 332 S.E.2d 390, 1985 Ga. App. LEXIS 2776 (1985). Evidence sufficient for conviction of selling heroin at townhome. — Defendant’s convictions for trafficking in heroin and possession with intent to distribute cocaine were supported by evidence that the drugs were found in plain view in the townhome, the defendant was seen selling heroin to an informant in the front yard, and the defendant had $3,189 in cash and three 319 Possession (Cont’d) cell phones, one of which was used to communicate with a person being investigated for selling drugs, in the defendant’s possession when arrested. Hargrove v. State, 361 Ga. App. 106, 863 S.E.2d 364, 2021 Ga. App. LEXIS 439 (2021). Evidence of apartment “ownership” held sufficient. — Defendant’s convictions for trafficking in cocaine and possession of heroin with intent to distribute was sustained even though the evidence connecting the defendant to the apartment was circumstantial. Williams v. State, 262 Ga. App. 67, 584 S.E.2d 625, 2003 Ga. App. LEXIS 713 (2003). Driving vehicle sufficient to support trafficking in methamphetamine conviction.— Evidence at trial was sufficient to support defendant’s conviction for trafficking in methamphetamine based on defendant driving an accomplice to procure methamphetamine; thus, the jury was authorized to find that defendant was a party to the crime of trafficking as the methamphetamine was found in a bag underneath defendant’s feet. Jones v. State, 369 Ga. App. 339, 893 S.E.2d 460, 2023 Ga. App. LEXIS 455 (2023). Cash as proof of intent to distribute. — It was not error to admit into evidence $390 in cash found on defendant at the time of defendant’s arrest for possessing heroin with intent to distribute, where defendant was unemployed, and there was testimony that the packets of heroin defendant dropped by defendant’s feet were the size packets that sold for 10 to 20 dollars and the money found in defendant’s possession was in denominations of mostly 10 and 20 dollar bills. Such evidence would tend to show that defendant had been selling heroin and that defendant intended to distribute the packages of heroin in defendant’s possession. Thus, the money had probative value in determining the issue of intent. Houston v. State, 180 Ga. App. 267, 349 S.E.2d 228, 1986 Ga. App. LEXIS 2708 (1986). While a defendant was presumed to be in possession of cocaine found in a car that 16-13-30 the defendant owned, the defendant argued the presumption was rebutted by evidence that others in the car had equal access to the drugs. As the defendant also possessed $494 in cash, the jury was not compelled to find the presumption of possession rebutted; therefore, the evidence, including testimony that the number of bags of cocaine found was inconsistent with personal consumption, was sufficient to convict the defendant of possession of cocaine with intent to distribute in violation of O.C.G.A. § 16-13-30(b). Hamilton v. State, 293 Ga. App. 297, 666 S.E.2d 630, 2008 Ga. App. LEXIS 926 (2008). Allegation that the defendant “unlawfully,” possessed cocaine was sufficient to encompass both the intent to commit the proscribed act and the knowledge necessary to form that intent. Dye v. State, 177 Ga. App. 813, 341 S.E.2d 469, 1986 Ga. App. LEXIS 1554 (1986). Prescription drugs prescribed for another. — Nothing in the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., authorizes possession of controlled substances that allegedly were prescribed for someone other than the defendant but were not in the prescription container when found in the possession of the defendant. Black v. State, 194 Ga. App. 660, 391 S.E.2d 432, 1990 Ga. App. LEXIS 286 (1990), cert. denied, No. S90C0803, 1990 Ga. LEXIS 769 (Ga. Apr. 5, 1990). Evidence sufficient to prove oxycodone pills were controlled substance. — Testimony from experts in drug identification that, based on the fact that the logo on pills found in the defendant’s possession matched that of pharmaceutically prepared oxycodone tablets, the pills were oxycodone, was sufficient to allow a reasonable jury to conclude that the defendant possessed that controlled substance. Kessinger v. State, 298 Ga. App. 479, 680 S.E.2d 546, 2009 Ga. App. LEXIS 713 (2009). Multiple offenses for simultaneous possession. — Defendant may be prosecuted, convicted, and separately sentenced for the simultaneous possession of each of the controlled substances listed in O.C.G.A. § 16-13-26. Tabb v. State, 250 Ga. 317, 297 S.E.2d 227, 1982 Ga. LEXIS 1235 (1982). 320 Sole or joint possession. — Law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint. Anderson v. State, 166 Ga. App. 459, 304 S.E.2d 550, 1983 Ga. App. LEXIS 3242 (1983). Although a probationer’s boyfriend claimed ownership to methamphetamine found in a tin in the probationer’s dresser drawer, the trial court, as the finder of fact, was entitled to believe that testimony while disbelieving a professed exclusive ownership of the methamphetamine; moreover, the fact that the tin was found in the probationer’s dresser drawer provided more than a mere spatial connection between the probationer and this particular contraband. Giang v. State, 285 Ga. App. 491, 646 S.E.2d 710, 2007 Ga. App. LEXIS 555 (2007). Evidence sufficient to prove constructive, joint possession. — When police officers in execution of a no-knock search warrant on the home where the teenage defendant lived with defendant’s mother found a sock with cocaine in the sock floating in a toilet of a bathroom that defendant had exited, defendant’s cousin acknowledged seeing defendant with the sock earlier and suspecting drugs were in the sock, and the officers also found marijuana and crack cocaine in a cigar box that defendant admitted owning during an earlier detention hearing, the evidence was sufficient to prove the defendant was in constructive, joint possession of the drugs. In the Interest of R.S., 253 Ga. App. 409, 559 S.E.2d 143, 2002 Ga. App. LEXIS 86 (2002). By showing circumstantially that the defendant and two codefendants had equal access to the cocaine and marijuana in the defendant’s truck, the evidence established that all three were parties to the crime and, thus, guilty of joint constructive possession of the drugs under O.C.G.A. §§ 16-13-2(b) and 16-13-30(b). Davis v. State, 270 Ga. App. 777, 607 S.E.2d 924, 2004 Ga. App. LEXIS 1601 (2004). Defendant’s conviction for possession of marijuana was affirmed as an accomplice 16-13-30 testified that the accomplice and the defendant smoked a substance and that it was marijuana; having smoked the substance repeatedly and with it only inches away from the defendant in the glove compartment, the defendant had the power and intention to exercise dominion or control over the marijuana and to have constructively and jointly possessed it with the accomplice. Michael v. State, 281 Ga. App. 289, 635 S.E.2d 790, 2006 Ga. App. LEXIS 989 (2006), cert. denied, No. S07C0097, 2006 Ga. LEXIS 950 (Ga. Nov. 6, 2006), overruled in part, Gibbs v. State, 340 Ga. App. 723, 798 S.E.2d 308, 2017 Ga. App. LEXIS 126 (2017). Despite the defendant’s contrary claim, the state presented sufficient evidence that the defendant and the codefendants had joint constructive possession of the contraband seized, and that the jury could reject the defendant’s equal access defense, given that: (1) some of that contraband was found in a bedroom in which the defendant slept and underneath the defendant’s mattress; and (2) a large amount of cash was found in the defendant’s purse. Castillo v. State, 288 Ga. App. 828, 655 S.E.2d 695, 2007 Ga. App. LEXIS 1308 (2007). Because the codefendant testified and identified the defendant as the owner of the cocaine at issue, and because the defendant was standing next to the cocaine in plain view, evidence presented at trial was sufficient to support defendant’s joint and constructive possession of the cocaine; moreover, defendant’s act of pointing to evidence that the codefendant had equal access to the cocaine was of no consequence as the equal access doctrine did not apply to those charged with being in joint constructive possession of contraband. Slade v. State, 289 Ga. App. 877, 658 S.E.2d 439, 2008 Ga. App. LEXIS 222 (2008). There was sufficient evidence to support defendant’s conviction for possession of methamphetamine as the state produced evidence connecting the defendant to methamphetamine oil found in a toilet by more than spatial proximity since the evidence showed that the production of methamphetamine oil was a final stage in the process of manufacturing methamphet- 321 Possession (Cont’d) amine in a form suitable for sale and personal use, and officers recognized the strong odor of the methamphetamine manufacturing process permeating the house where defendant was located along with methamphetamine oil. Womble v. State, 290 Ga. App. 768, 660 S.E.2d 848, 2008 Ga. App. LEXIS 412 (2008). When the defendants, a married couple who were in a car with a third person, were charged with trafficking in cocaine, possession of cocaine with intent to distribute, possession of amphetamine, and possession of a firearm during certain crimes, there was sufficient evidence that the defendants had joint constructive possession of a duffel bag in which drugs and a weapon were found. The evidence showed that one spouse exercised control over the car that transported the contraband and that the other spouse tried to retrieve a paper sack inside the duffel bag at the sheriff’s office with suspicious and inconsistent explanations. Howard v. State, 291 Ga. App. 289, 661 S.E.2d 644, 2008 Ga. App. LEXIS 467 (2008). Even if others had access to cocaine found in a kitchen, a jury could infer that a defendant had joint constructive possession of the cocaine since the evidence showed that the defendant had been seen earlier in the day with 15 bags of cocaine that the defendant said the defendant planned to sell that day, that when the police came to execute a warrant on an alleged drug dealer’s house the defendant ran into the house where the defendant was found in the kitchen with seven bags of cocaine and a heated pot of grease containing three additional “hits,” and that the defendant was the only one in the kitchen. Riley v. State, 292 Ga. App. 202, 663 S.E.2d 835, 2008 Ga. App. LEXIS 745 (2008). Defendant’s convictions for trafficking in methamphetamine and possession of cocaine were upheld on appeal as the jury was authorized to find that the defendant constructively possessed the contraband since the defendant lived at the apartment searched by consent and despite the fact that others living in the apartment had equal access to the drugs. Addition- 16-13-30 ally, the defendant was found lying on a mattress atop a bag containing more than an ounce of methamphetamine. Maldonado v. State, 293 Ga. App. 356, 667 S.E.2d 156, 2008 Ga. App. LEXIS 940 (2008). Two intruders entered a house through a window, threatened the occupants with handguns, and stole over an ounce of marijuana from the house. As defendant was found trapped behind the steering wheel of the get-away vehicle after the vehicle crashed while fleeing a patrol car (the intruders having fled), the evidence was sufficient to establish that the defendant and the intruders were in joint, constructive possession of the marijuana. Olds v. State, 293 Ga. App. 884, 668 S.E.2d 485, 2008 Ga. App. LEXIS 1089 (2008). Evidence that the defendant and another shared the bedroom where the cocaine was found, that the defendant admitted the defendant was aware the roommate sold drugs, and that the defendant used drugs supported the defendant’s conviction for possession of cocaine. Stacey v. State, 292 Ga. 838, 741 S.E.2d 881, 2013 Ga. LEXIS 373 (2013). Since the defendant leased the apartment where the drugs were found, there was sufficient evidence for the jury to conclude that the defendant and the codefendant were in joint constructive possession of the cocaine and marijuana found there. Ahmed v. State, 322 Ga. App. 154, 744 S.E.2d 345, 2013 Ga. App. LEXIS 470 (2013). Evidence sufficient to prove constructive, joint possession but not sufficient to prove intent to distribute. — With regard to a defendant’s convictions for possession of marijuana with the intent to distribute, trafficking in 4-Methylenedioxymethamphetamine, commonly known as ecstasy, trafficking in cocaine, and possession of a firearm during the commission of a crime, there was sufficient evidence to support the defendant’s conviction for possession of the contraband, which was found in a backpack, based on the strong odor of marijuana coming from the vehicle in which the defendant was a passenger, the 322 defendant’s suspicious and nervous behavior, the defendant’s joint living arrangement with two other defendants, the defendant’s possession of ammunition for another one of the defendant’s weapons, and the fact that the defendant was, at times, within arm’s reach of the backpack, which showed an intent and power to exercise joint control over the backpack and the drugs found therein; likewise, there was sufficient evidence to support the trafficking charges based on the amounts of the contraband found; and, there was sufficient evidence to support the firearm possession charge since the defendant was found in possession of a magazine that fit the gun located within arm’s reach. However, considering that there were four people in the vehicle, the court found that the state’s evidence was insufficient to exclude the reasonable hypothesis that the marijuana was intended for personal use, therefore, the conviction for the intent to distribute marijuana was reduced to possession. Vines v. State, 296 Ga. App. 543, 675 S.E.2d 260, 2009 Ga. App. LEXIS 246 (2009). Actual or constructive possession. — Person who knowingly has direct physical control over a thing at a given time is in actual possession of the thing. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of the thing. Anderson v. State, 166 Ga. App. 459, 304 S.E.2d 550, 1983 Ga. App. LEXIS 3242 (1983). Possession of marijuana may be actual or constructive, and the evidence is sufficient to support a conviction for possession where it would authorize a jury to find that defendant, at the very least, was in constructive possession of marijuana, since defendant exercised dominion and control over it. Hadden v. State, 181 Ga. App. 628, 353 S.E.2d 532, 1987 Ga. App. LEXIS 2572 (1987). Possession sufficient to sustain a conviction pursuant to O.C.G.A. § 16-13-30(b) may be either actual or constructive. Walton v. State, 194 Ga. App. 490, 390 S.E.2d 896, 1990 Ga. App. LEXIS 174 (1990). 16-13-30 Neither actual nor constructive possession of cocaine is an element of the offense of selling of cocaine. Evans v. State, 235 Ga. App. 577, 510 S.E.2d 313, 1998 Ga. App. LEXIS 1575 (1998). Defendant’s motion for a directed verdict of acquittal on a charge of possession of cocaine with intent to distribute was properly denied; the evidence establishing defendant’s constructive possession of cocaine included defendant’s presence in the room where it was found, defendant’s actual possession of a key to the apartment where it was found and $346.00 in cash, testimony by another individual at the scene that the individual and defendant were partners in the drug trade, and defendant’s giving a false name when police arrived. Jackson v. State, 276 Ga. App. 694, 624 S.E.2d 270, 2005 Ga. App. LEXIS 1362 (2005). As the officer heard a bag that contained dime bags of marijuana fall from where the defendant, who was in custody, was walking and where a later search of the defendant revealed empty baggies, the circumstantial evidence tended to prove the offense of possession with intent to distribute marijuana under O.C.G.A. § 16-13-30 and the state was not required to tender the illegal drugs at trial. In the Interest of P.M.H., 277 Ga. App. 643, 627 S.E.2d 211, 2006 Ga. App. LEXIS 179 (2006). Although the defendant claimed that at least 10 others were within throwing distance of the pouch containing cocaine, sufficient evidence supported the defendant’s conviction of possession of cocaine and possession of less than one ounce of marijuana under O.C.G.A. § 16-13-30; the pouch was found between the defendant’s legs, and the labels found in the pouch tied the defendant to the marijuana cigarettes found in the defendant’s car given that they were the same type of labels. Pierre v. State, 281 Ga. App. 69, 635 S.E.2d 363, 2006 Ga. App. LEXIS 1003 (2006). Sufficient evidence established the defendant’s possession of the cocaine under O.C.G.A. § 16-13-30; a deputy found the cocaine in the area where the other deputy saw it fly from the defendant’s window during a chase of the defendant’s 323 Possession (Cont’d) vehicle, and this was sufficient for the jury to conclude that the cocaine belonged to defendant. Florence v. State, 282 Ga. App. 31, 637 S.E.2d 779, 2006 Ga. App. LEXIS 1306 (2006). Defendant’s possession of cocaine conviction was upheld on appeal as supported by the sufficiency of the evidence given: (1) an officer’s act of observing a hand emerge from the passenger window and toss out a bag of cocaine; (2) that, based on the officer’s testimony, it would have been physically impossible for the driver of the vehicle to toss out the bag while driving the car; and (3) the evidence showed that the defendant was the passenger and no other person was in the car; moreover, as witness credibility was the jury’s province, the court found that a rational trier of fact could have found the defendant guilty of possession of cocaine beyond a reasonable doubt. Johnson v. State, 283 Ga. App. 425, 641 S.E.2d 655, 2007 Ga. App. LEXIS 81 (2007). Sufficient evidence of constructive possession of crack cocaine was presented to convict a defendant under O.C.G.A. § 16-13-30(b) based on the facts that plastic baggies containing a large amount of crack cocaine were found in an apartment bathroom shortly after the defendant fled there and closed the door; and numerous similarities existed between other items found under the tub and items found in the defendant’s pockets. Marshall v. State, 295 Ga. App. 354, 671 S.E.2d 860, 2008 Ga. App. LEXIS 1374 (2008), overruled on other grounds, Hill v. State, 360 Ga. App. 143, 860 S.E.2d 893, 2021 Ga. App. LEXIS 318 (2021). Jury was authorized to infer that a defendant had been in possession of the bag of cocaine found on the ground next to the garbage dumpster based on an officer’s testimony that the officer saw the defendant walk over to the dumpster and bend down next to the dumpster, and that no other items were found in the area where the defendant had bent down. White v. State, 313 Ga. App. 605, 722 S.E.2d 198, 2012 Ga. App. LEXIS 34 (2012). Sufficient evidence supported the defendant’s conviction for possession of cocaine 16-13-30 based on the evidence showing that the defendant ran from the back yard of a girlfriend’s leased residence and had approximately 26 grams of cocaine on or near the defendant’s person when apprehended on the front porch of the adjoining property by the police; thus, the evidence authorized the jury to infer that the defendant had either constructive or actual possession of the cocaine. Smith v. State, 323 Ga. App. 668, 747 S.E.2d 859, 2013 Ga. App. LEXIS 712 (2013). Defendant’s conviction for drug possession was upheld on appeal because there was sufficient evidence to support the defendant’s conviction based on the defendant admitting to owning the safe where approximately 80 grams of marijuana were located. Franklin v. State, 325 Ga. App. 728, 754 S.E.2d 774, 2014 Ga. App. LEXIS 60 (2014). Evidence of the quantum of marijuana seized in conjunction with the presence of the weapon and ammunition found in the bedroom the defendant ran to on being confronted by police, as well as the cell phones containing the defendant’s photograph, the scholarship application in the defendant’s name, the video security system, the police scanner, and the defendant’s mother’s pill bottle therein, linked the defendant to the marijuana and weapon. Copeland v. State, 327 Ga. App. 520, 759 S.E.2d 593, 2014 Ga. App. LEXIS 373 (2014). Spatial proximity was not the only evidence of the defendant’s possession of crack cocaine as the pill bottle containing the cocaine was not on the ground when the defendant got out of the car, the defendant attempted to hide the bottle with the defendant’s feet during the search, and in a similar transaction the defendant had carried a pill bottle containing crack cocaine. Tanksley v. State, 327 Ga. App. 273, 758 S.E.2d 611, 2014 Ga. App. LEXIS 316 (2014). Neither actual nor constructive possession shown. — When the only evidence relating to defendant was that the defendant and codefendants left a codefendant’s apartment together in a codefendant’s car, that a codefendant was carrying a bag containing drugs when the codefendant left the codefendant’s 324 apartment that was found on the floor in front of the seat where a codefendant was riding, and there was no evidence that defendant even knew the bag was in the car, the evidence did not show actual possession by defendant; and a finding that defendant was in constructive possession of the contraband must be based upon some connection between the defendant and the contraband other than spatial proximity. The evidence was insufficient to support defendant’s conviction of possession of the contraband. Shirley v. State, 166 Ga. App. 456, 304 S.E.2d 468, 1983 Ga. App. LEXIS 2210, cert. vacated, 251 Ga. 505, 309 S.E.2d 142, 1983 Ga. LEXIS 983 (1983). Because there was no evidence connecting defendant with the cocaine found in a hotel room other than defendant’s presence at a hotel and the fact that the room was registered in defendant’s name, any presumption of possession was rebutted as a matter of law. Stringer v. State, 275 Ga. App. 519, 621 S.E.2d 761, 2005 Ga. App. LEXIS 1020 (2005). At most, the evidence showed that cocaine in a bottle found in a yard near the defendant’s home was in the possession of the defendant’s son, who was seen throwing something into the yard as the officers approached to execute a search warrant; the trial court should have granted a directed verdict on the charge of possessing drugs with intent to distribute for the drugs in the bottle. Smith v. State, 278 Ga. App. 315, 628 S.E.2d 722, 2006 Ga. App. LEXIS 321 (2006), cert. denied, No. S06C1314, 2006 Ga. LEXIS 687 (Ga. Sept. 12, 2006). Evidence was insufficient to prove that a defendant constructively possessed drugs as, even assuming that the defendant had been in a bedroom in which drugs were found, there was not sufficient evidence that the defendant exercised control over the drugs, or knew the drugs were present, since: (1) no contraband was found on or near the defendant’s person; (2) the drugs were found inside a ball of electrical tape in a corner of the bedroom; (3) the home belonged to another person; and an officer believed that the other person resided in the bedroom, and (4) there was no evidence that the defendant 16-13-30 resided on the premises, or that the defendant was seen in the bedroom in which the drugs were found. Johnson v. State, 282 Ga. App. 52, 637 S.E.2d 775, 2006 Ga. App. LEXIS 1302 (2006). Evidence was insufficient to show constructive possession of methamphetamine found in a car in which defendant was a passenger because there was no evidence, besides spatial proximity, connecting the defendant with the contraband since there was no evidence showing that the defendant knew that a baggy found in the car contained contraband or the defendant hid the baggy in the car. Millsaps v. State, 300 Ga. App. 383, 685 S.E.2d 371, 2009 Ga. App. LEXIS 1177 (2009), overruled in part, Maddox v. State, 322 Ga. App. 811, 746 S.E.2d 280, 2013 Ga. App. LEXIS 617 (2013). Trial court erred in finding that the defendant violated the defendant’s probation by committing the new felony of possessing a controlled substance, piperazine or TFMPP, in violation of O.C.G.A. § 16-13-30 because the circumstantial evidence was insufficient to show the defendant’s constructive possession of the TFMPP pills; the only evidence linking the defendant to the drugs was spatial proximity, but it was at least equally likely that the pills belonged to the driver of the truck where the pills were found. Scott v. State, 305 Ga. App. 596, 699 S.E.2d 894, 2010 Ga. App. LEXIS 761 (2010). Possession of cocaine found in passenger’s pockets. — Evidence was sufficient to convict a defendant of being a party to the crime of possession of cocaine in violation of O.C.G.A. §§ 16-2-20(b) and 16-13-30(a), although the cocaine was found in the defendant’s nephew’s pockets, because the nephew was blind and could not have driven himself to locate the drugs or completed the purchase by himself. Wade v. State, 305 Ga. App. 819, 701 S.E.2d 214, 2010 Ga. App. LEXIS 819 (2010). In vicinity of contraband. — Merely having been in the vicinity of contraband does not, without more, establish possession. Ridgeway v. State, 187 Ga. App. 381, 370 S.E.2d 216, 1988 Ga. App. LEXIS 695 (1988). 325 Possession (Cont’d) Defendant’s conviction for possession of cocaine, O.C.G.A. § 16-13-30(a), was reversed because the trial court determined under Ga. Unif. Super. Ct. R. 31.3(B) whether the state possessed a proper purpose for admission of similar transaction evidence, or whether the two offenses were sufficiently connected or similar; the error was not harmless because the state could not establish that the defendant had actual possession of the cocaine found in the girlfriend’s vehicle. McCrory v. State, 341 Ga. App. 174, 798 S.E.2d 385, 2017 Ga. App. LEXIS 166 (2017). Evidence of possession of “portable” contraband near defendant’s home. — Even if the equal access doctrine applied to marijuana plants growing in buckets near defendant’s home, there was substantial other evidence of defendant’s possession of the “portable” contraband, such as that defendant was linked to ownership of the containers in which some of the plants were growing, that some of the plant-filled buckets were on the boundaries of defendant’s yard within feet of defendant’s dog pen and defendant’s garden, all visible from defendant’s yard, and that defendant was a gardener and had a readily available water source. Blitch v. State, 188 Ga. App. 487, 373 S.E.2d 227, 1988 Ga. App. LEXIS 1084 (1988). Access to premises. — When the defendant made no affirmative showing that anyone other than the defendant and the defendant’s spouse had actual access to the bedroom or the bedroom closet during several days or weeks prior to the discovery of the pills, the jury was authorized to find defendant guilty of the offense of unlawful possession of diazepam. Prescott v. State, 164 Ga. App. 671, 297 S.E.2d 362, 1982 Ga. App. LEXIS 3340 (1982). Evidence authorized a finding that the defendant and a codefendant were in joint constructive possession of the drugs in the bedroom that they were apparently sharing and in which the contraband was found. Anderson v. State, 166 Ga. App. 459, 304 S.E.2d 550, 1983 Ga. App. LEXIS 3242 (1983). 16-13-30 Despite the defendant’s denial of any knowledge of the existence of drugs and other contraband in a motel room in which the defendant was the sole occupant, evidence of the contraband found in close proximity to other evidence which the defendant admitted owning, when coupled with the fact that only one key to the room existed, which the defendant admitted to having, and that no one had brought anything into the room since the person the defendant alleged was the owner of the evidence had left, was sufficient to support the defendant’s convictions under O.C.G.A. §§ 16-11-106, 16-13-2, and 16-13-30, and 16-13-31. Hall v. State, 283 Ga. App. 266, 641 S.E.2d 264, 2007 Ga. App. LEXIS 31 (2007). Equal access of others to premises. — Evidence that cocaine was found hidden on the outside of the defendant’s mobile home, which was parked in an area to which a large number of persons, not only visitors to the unit occupied by the defendant but anyone having business in the mobile home park, had potential access, without evidence directly connecting the defendant to the cocaine, was entirely circumstantial, and insufficient to sustain the defendant’s conviction for possession of cocaine. Prescott v. State, 164 Ga. App. 671, 297 S.E.2d 362, 1982 Ga. App. LEXIS 3340 (1982). Defendant’s conviction for unlawful possession of cocaine was reversed, where there was no evidence that defendant occupied the bedroom where the cocaine was found, and other persons living in the residence had equal access to the bedroom. Nations v. State, 177 Ga. App. 801, 341 S.E.2d 482, 1986 Ga. App. LEXIS 1533 (1986); Johnson v. State, 245 Ga. App. 583, 538 S.E.2d 481, 2000 Ga. App. LEXIS 1015 (2000). When the state presented evidence that the defendant was a lessee and occupant of an apartment where cocaine was found there was a rebuttable presumption that the defendant had possession and evidence that others had access was not sufficient to rebut the presumption against the defendant. Wilson v. State, 231 Ga. App. 525, 499 S.E.2d 911, 1998 Ga. App. LEXIS 502 (1998). 326 Evidence was sufficient to convict defendant of possession of cocaine where a pipe used to smoke crack cocaine the night before was found in defendant’s bedroom, even though defendant shared the house with other people, because additional evidence connected defendant to the pipe besides the fact that defendant used the room where it was found, as there was testimony that defendant actually possessed the crack and smoked it, and there was no evidence that anyone else had equal access to defendant’s bedroom. Whitlock v. State, 265 Ga. App. 111, 593 S.E.2d 17, 2003 Ga. App. LEXIS 1538 (2003). Sufficient evidence overcame defendant’s equal access defense as defendant’s ownership or possession of a vehicle containing the seized methamphetamine was not the sole evidence establishing defendant’s guilt of possession of methamphetamine; the state also relied on defendant’s roommate’s testimony that defendant purchased the seized methamphetamine and kept the methamphetamine in the vehicle. Stovall v. State, 275 Ga. App. 244, 620 S.E.2d 462, 2005 Ga. App. LEXIS 939 (2005), cert. denied, No. S06C0200, 2006 Ga. LEXIS 100 (Ga. Jan. 30, 2006). Insufficient evidence supported the defendant’s conviction of possession of marijuana under O.C.G.A. § 16-13-30; the defendant lived with a female, and there was no evidence presented in the case that connected the defendant to the small baggies of marijuana found hidden in a bag under the end table of the living room in the apartment. Gentry v. State, 281 Ga. App. 315, 635 S.E.2d 782, 2006 Ga. App. LEXIS 943 (2006), cert. denied, No. S07C0117, 2007 Ga. LEXIS 78 (Ga. Jan. 22, 2007). There was sufficient evidence to support a defendant’s conviction on various drug possession charges based on the evidence of various drugs being found in the bedroom the defendant resided in of a twobedroom apartment shared with another, despite others having equal access to the apartment. Smith v. State, 297 Ga. App. 526, 677 S.E.2d 717, 2009 Ga. App. LEXIS 464 (2009). Insufficient evidence supported defendant’s conviction of possession of marijuana with intent to distribute. — There was insufficient 16-13-30 evidence to support the defendant’s conviction for possession of marijuana with the intent to distribute because the state merely proved that the defendant possessed marijuana and failed to produce any evidence that the defendant possessed scales or other drug-dealing paraphernalia or that large amounts of cash on the defendant’s person or in the defendant’s apartment were found. Beard v. State, 318 Ga. App. 128, 733 S.E.2d 426, 2012 Ga. App. LEXIS 865 (2012). Effect of equal access of others to premises. — Merely finding contraband on premises occupied by defendant is not sufficient to support conviction if it affirmatively appears from evidence that persons other than defendant had equal opportunity to commit the crime. McCann v. State, 137 Ga. App. 445, 224 S.E.2d 99, 1976 Ga. App. LEXIS 2480 (1976); Person v. State, 155 Ga. App. 106, 270 S.E.2d 319, 1980 Ga. App. LEXIS 2477 (1980); Anderson v. State, 166 Ga. App. 459, 304 S.E.2d 550, 1983 Ga. App. LEXIS 3242 (1983). Equal access rule generally applies to contraband in open, notorious, and easily accessible areas. Wright v. State, 154 Ga. App. 400, 268 S.E.2d 378, 1980 Ga. App. LEXIS 2194, cert. denied, 449 U.S. 900, 101 S. Ct. 270, 66 L. Ed. 2d 130, 1980 U.S. LEXIS 3494 (1980). “Equal access” instruction not warranted. — Defendant was not entitled to an “equal access” instruction relating to drugs found in the defendant’s vehicle since, as there was no instruction on presumption of possession, that presumption was not placed before the jury, and since the defendant’s ownership of the vehicle was not the sole evidence of possession of cocaine with intent to distribute. State v. Johnson, 280 Ga. 511, 630 S.E.2d 377, 2006 Ga. LEXIS 338 (2006). Because the state was not relying upon the defendant’s ownership or control of the residence in order to link the ownership and possession of the methamphetamine found to the defendant, a charge on equal access was not authorized by the evidence. Thrasher v. State, 289 Ga. App. 399, 657 S.E.2d 316, 2008 Ga. App. LEXIS 97 (2008). 327 Possession (Cont’d) In a defendant’s trial for possession of cocaine, the state did not rely on a presumption that the defendant possessed the cocaine, but presented direct evidence that the defendant exited a car with the drugs in a bag and disposed of the bag in the woods following an accident. Therefore, the defendant was not entitled to an equal access charge relative to the woods. Hill v. State, 302 Ga. App. 291, 690 S.E.2d 677, 2010 Ga. App. LEXIS 123 (2010). Conviction not precluded when defendant connected with contraband. — Totality of the evidence was sufficient to connect the defendant to the possession of cocaine seized in a residence shared by the defendant and the defendant’s girl friend even though the evidence would have authorized a finding that others had equal access to the drugs. Lane v. State, 177 Ga. App. 553, 340 S.E.2d 228, 1986 Ga. App. LEXIS 2431 (1986). Evidence from the defendant’s live-in girlfriend that a lunch bag and shoe box containing marijuana and scales belonged to the defendant was sufficient to prove that the defendant had sole constructive possession of the marijuana in violation of O.C.G.A. § 16-13-30(j), although both the defendant and the girlfriend had equal access to the marijuana. Jefferson v. State, 309 Ga. App. 861, 711 S.E.2d 412, 2011 Ga. App. LEXIS 473 (2011), overruled in part, Maddox v. State, 322 Ga. App. 811, 746 S.E.2d 280, 2013 Ga. App. LEXIS 617 (2013). When joint constructive possession alleged. — Equal access rule, conceptually and historically, has no application when all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of that contraband. It is simply a defense available to the accused to whom a presumption of possession flows. Castillo v. State, 166 Ga. App. 817, 305 S.E.2d 629, 1983 Ga. App. LEXIS 3279 (1983). When state’s evidence is of actual, physical possession. — “Equal access” rule is inapplicable when the state’s evidence is not that the defendant 16-13-30 constructively possessed contraband, but that the defendant actually and physically possessed the contraband. Marshall v. State, 153 Ga. App. 198, 264 S.E.2d 718, 1980 Ga. App. LEXIS 1747 (1980). Equal access rule inapplicable to marijuana plants growing outside. — While equal access rule may be applicable with reference to loose, portable quantities of contraband found inside house, it is not properly applicable to marijuana plants growing outside, which require a period of months to grow, mature, and be harvested. Goode v. State, 130 Ga. App. 791, 204 S.E.2d 526, 1974 Ga. App. LEXIS 1265 (1974). Equal access rule does not apply to cases involving marijuana plants growing on the land outside the owner’s or lessee’s residence, and not in portable containers, on the basis that such contraband is stationary. Ward v. State, 178 Ga. App. 129, 342 S.E.2d 373, 1986 Ga. App. LEXIS 1610 (1986). Equal access rule inapplicable where physical possession shown. — When a search warrant was executed, the defendant was found with a bucket of water into which the defendant was placing packets of foil, and a sampling of the packets showed the presence of cocaine, the rule that the mere presence of contraband on the premises occupied by an accused is insufficient to sustain a conviction when there is also evidence of access by others was not applicable, even though there was no proof that others had not put cocaine in the bucket. Bradley v. State, 180 Ga. App. 386, 349 S.E.2d 263, 1986 Ga. App. LEXIS 2729 (1986). Chain of custody. — State failed to prove an adequate chain of custody because there was no evidence at trial that the plastic bag and the alleged cocaine were distinct items with readily observable distinguishing characteristics; fungible items require proof of chain of custody. Phillips v. Williams, 276 Ga. 691, 583 S.E.2d 4, 2003 Ga. LEXIS 551 (2003). In a trial for possession of cocaine, it was not error to admit a substance into evidence when the only break in the chain of custody occurred after a scientist tested the substance and found the substance to be cocaine; even if there was error, it was 328 harmless given the overwhelming evidence of guilt, including trial testimony and scientist’s report, even without the substance being introduced into evidence. Cowins v. State, 290 Ga. App. 814, 660 S.E.2d 865, 2008 Ga. App. LEXIS 419 (2008). Equal access defense was not sufficient. — Evidence that the defendant placed an object, which was later found to be crack cocaine, on the hood of a car, that two other men did not move, and then the defendant tried to flee after seeing the police, was sufficient for a jury to find that the defendant was not merely in close proximity to the drugs, but that the other men in the area did not have an equal opportunity to place the cocaine on the hood of the truck. Daniels v. State, 261 Ga. App. 5, 582 S.E.2d 4, 2003 Ga. App. LEXIS 528 (2003). Evidence was sufficient to support defendant’s conviction for possession of more than 28 grams of a mixture containing methamphetamine, as a search of defendant’s vehicle after a lawful stop revealed the drug as well as paraphernalia, and the presumption of equal access between defendant and the passenger was overcome by defendant’s voluntary statement that the drugs belonged to the defendant. Collins v. State, 273 Ga. App. 598, 615 S.E.2d 646, 2005 Ga. App. LEXIS 584 (2005). There was sufficient evidence to support defendant’s conviction for possession of marijuana with intent to distribute, because defendant drove a car into a parking lot, an individual who was empty-handed got into the vehicle and they drove to a remote area of the lot, and thereafter, the individual exited the vehicle, as the presumption of the equal access rule was rebutted by police officers’ observation that the individual was empty handed and that the marijuana which was found in defendant’s vehicle was in a briefcase behind the passenger’s seat; there was also sufficient other evidence that supported a finding that defendant possessed the marijuana. Causey v. State, 274 Ga. App. 506, 618 S.E.2d 127, 2005 Ga. App. LEXIS 777 (2005). Even though the defendant did not own the home where methamphetamine and 16-13-30 other contraband were found, and even though the defendant was not arrested with drugs or drug-related objects on the defendant’s person, there was sufficient evidence to link the defendant to the contraband, including a codefendant’s testimony that the defendant brought the drugs into the home and the defendant’s statement to the police about the drug’s location. Tucker v. State, 276 Ga. App. 117, 622 S.E.2d 466, 2005 Ga. App. LEXIS 1186 (2005). Evidence supported the defendant’s conviction for possession of methamphetamine because: (1) the defendant acknowledged that an unoccupied tractortrailer was defendant’s; (2) the police entered the cab and saw in plain sight a crack cocaine or methamphetamine pipe; (3) testing of the pipe was positive for methamphetamine; (4) the defendant admitted that the defendant smoked methamphetamine in the pipe and had a “drug problem”; and (5) the equal access rule did not apply as the defendant made inculpatory admissions authorizing a finding that the defendant possessed the methamphetamine. Rochefort v. State, 279 Ga. 738, 620 S.E.2d 803, 2005 Ga. LEXIS 665 (2005). Although the defendant contended that the trial court erred by denying the defendant’s motion for a directed verdict of acquittal because presence in the vicinity of contraband did not establish possession, defendant and the codefendant were indicted and tried together for possession of methamphetamine, the jury was entitled to conclude that defendant was in possession of the methamphetaminecoated pipe, which was found in the car the defendant drove, next to the driver’s seat; moreover, the jury heard the officer’s testimony that the defendant stated at arrest that the defendant was aware the item was used to smoke methamphetamine, and the trial court charged the jury on the doctrine of equal access. Thus, the jury was able to contemplate and reject the equal access defense, and sufficient evidence was presented for the jury to find that the defendant possessed the methamphetamine. Dover v. State, 307 Ga. App. 126, 704 S.E.2d 235, 2010 Ga. App. LEXIS 1099 (2010). Equal access rule in automobile context. — Equal access rule, as the rule 329 Possession (Cont’d) applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. Castillo v. State, 166 Ga. App. 817, 305 S.E.2d 629, 1983 Ga. App. LEXIS 3279 (1983). Evidence was insufficient to support a conviction for possession of cocaine because the sole evidence of possession was the defendant’s ownership and driving of the vehicle in which the cocaine was found under the passenger seat, and the passenger had equal access to that cocaine. Turner v. State, 276 Ga. App. 381, 623 S.E.2d 216, 2005 Ga. App. LEXIS 1256 (2005), overruled in part, Maddox v. State, 322 Ga. App. 811, 746 S.E.2d 280, 2013 Ga. App. LEXIS 617 (2013), overruled in part as stated in Griffin v. State, 331 Ga. App. 550, 769 S.E.2d 514, 2015 Ga. App. LEXIS 41 (2015). Presumption as to drugs found in automobile. — Absent contrary circumstances, drugs found in an automobile are presumed to belong to the driver and owner. Moore v. State, 155 Ga. App. 149, 270 S.E.2d 339, 1980 Ga. App. LEXIS 2500 (1980). Sufficient evidence supported defendant’s conviction for possession of cocaine found in the car the defendant was driving despite the fact that others had access to the car the day before and the only evidence linking defendant to the cocaine was the defendant’s possession of the car; the trier of fact heard defendant’s claim, and apparently decided that defendant did not rebut the inference that the driver of an automobile is presumed to have possession and control of contraband found in the automobile. Davis v. State, 272 Ga. App. 33, 611 S.E.2d 710, 2005 Ga. App. LEXIS 209 (2005). Since the defendant admitted knowing that methamphetamine was in a vehicle in which the defendant was a passenger, and drug paraphernalia found in the de- 16-13-30 fendant’s home showed a sufficient connection to and knowledge of the drugs found in the vehicle, the evidence was sufficient to prove that the defendant was in constructive possession of the drugs in violation of O.C.G.A. § 16-13-30(a). Clewis v. State, 293 Ga. App. 412, 667 S.E.2d 158, 2008 Ga. App. LEXIS 952 (2008). Defendant, as the driver of a vehicle stopped at a roadblock, was presumed to have possession and control of drugs found in the vehicle. Although the defendant presented some evidence of others’ access to the vehicle, the question of whether the presumption was rebutted was for the jury, which decided against the defendant. Blankenship v. State, 301 Ga. App. 602, 688 S.E.2d 395, 2009 Ga. App. LEXIS 1421 (2009). Evidence was sufficient to support the defendant’s convictions for possession of methamphetamine and possession of marijuana because in the absence of any evidence to the contrary, the jury was authorized to consider the rebuttable presumption that the defendant, as the sole driver of a stolen vehicle, had possession of and control over the contraband contained within that vehicle, and the record was devoid of any evidence that someone other than the defendant had access to the interior of the vehicle; while affirmative evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver, this legal principle does not mean that the state must establish a negative fact, but rather, the burden on the state remains the same: to prove every element of the crimes charged beyond a reasonable doubt. Mangum v. State, 308 Ga. App. 84, 706 S.E.2d 612, 2011 Ga. App. LEXIS 124 (2011). Presumption of ownership may be overcome by evidence of equal access. — Evidence of equal access to drugs is sufficient to overcome presumption that contraband belongs to defendant driver and owner of automobile 330 and was in defendant’s possession; whether or not this evidence was sufficient to rebut inference arising from finding of drugs in automobile is a question for jury to decide. Moore v. State, 155 Ga. App. 149, 270 S.E.2d 339, 1980 Ga. App. LEXIS 2500 (1980). Evidence was sufficient to convict defendant of possession of marijuana and cocaine based upon the drugs that were found on the floorboard of the truck that defendant used, which defendant’s father owned, as defendant did not claim that the drugs belonged to defendant’s passenger in the truck and no one else had equal access on that day to the truck. Marion v. State, 268 Ga. App. 699, 603 S.E.2d 321, 2004 Ga. App. LEXIS 989 (2004). Presence of cocaine metabolites in body fluid is direct evidence only of the fact that cocaine was introduced into the body producing the fluid, and is not direct evidence that the person possessed the cocaine. Rather, the presence of cocaine metabolites in body fluid is only circumstantial or indirect evidence of possession. Green v. State, 260 Ga. 625, 398 S.E.2d 360, 1990 Ga. LEXIS 469 (1990), cert. denied, 500 U.S. 935, 111 S. Ct. 2059, 114 L. Ed. 2d 464, 1991 U.S. LEXIS 2884 (1991), overruled in part as stated in West v. State, 288 Ga. App. 566, 654 S.E.2d 463, 2007 Ga. App. LEXIS 1252 (2007). Quantification of substance in urine sample not required. — Amounts of controlled substances in urine sample did not have to be quantified to prove charges of driving under the combined influence of marijuana and cocaine and drug possession. Kerr v. State, 205 Ga. App. 624, 423 S.E.2d 276, 1992 Ga. App. LEXIS 1324 (1992), cert. denied, No. S93C0106, 1993 Ga. LEXIS 32 (Ga. Jan. 7, 1993), superseded by statute as stated in Ryals v. State, 215 Ga. App. 51, 449 S.E.2d 865, 1994 Ga. App. LEXIS 1128 (1994). Proven through stillborn fetus. — When the indictment charged defendant with possession of cocaine in violation of O.C.G.A. § 16-13-30, it was proper to admit evidence supporting the state’s case that a blood specimen of her stillborn fetus tested positive for metabolite of cocaine. Jackson v. State, 208 Ga. App. 16-13-30 391, 430 S.E.2d 781, 1993 Ga. App. LEXIS 501, cert. dismissed, 263 Ga. 403, 436 S.E.2d 632, 1993 Ga. LEXIS 810 (1993). Lesser included offense. — When the indictment charged the defendant with trafficking in cocaine by possessing more than 28 ounces, the trial court erred in refusing to give the defendant’s requested charge on the lesser included offense of simple possession of cocaine. Howard v. State, 220 Ga. App. 579, 469 S.E.2d 746; Lumpkin v. State, 245 Ga. App. 627, 538 S.E.2d 514, 2000 Ga. App. LEXIS 1026 (2000). Because the defendant was indicted for possession of more than 28 grams of methamphetamine, a violation of O.C.G.A. § 16-13-31, the defendant had sufficient notice that the lesser-included offense of possession with intent to distribute, a violation of O.C.G.A. § 16-13-30(b), might be submitted to the jury if the evidence warranted it; consequently, by charging the lesser offense in accordance with O.C.G.A. § 16-1-6, the trial court did not permit the jury to convict the defendant in a manner not alleged in the indictment in violation of the defendant’s due process rights. Rupnik v. State, 273 Ga. App. 34, 614 S.E.2d 153, 2005 Ga. App. LEXIS 392 (2005). State proved possession of marijuana. — See Millwood v. State, 166 Ga. App. 292, 304 S.E.2d 103, 1983 Ga. App. LEXIS 3225 (1983). Trial court properly denied defendant’s motion for a directed verdict of acquittal, and properly entered a judgment of conviction against defendant for misdemeanor possession of marijuana, as the evidence sufficiently showed that defendant possessed marijuana which police found in a search of the home. Heller v. State, 275 Ga. App. 637, 621 S.E.2d 591, 2005 Ga. App. LEXIS 1064 (2005). In a drug possession case, the defendant was not convicted based on circumstantial evidence that, in violation of former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6), failed to exclude every other hypothesis save that of the defendant’s guilt; the passenger’s testimony that the defendant handed the passenger drugs and told the passenger to discard the drugs provided direct evidence that the 331 Possession (Cont’d) defendant possessed more than an ounce of marijuana in violation of O.C.G.A. § 16-13-30. Curtis v.