Lockwood was convicted of the offense of trafficking in cocaine, OCGA 16-13-31
(a), and was sentenced to thirty years in prison. The Court of Appeals affirmed the conviction. Lockwood v. State, 184 Ga. App. 262 (361 SE2d 195) (1987)
. We reverse.
Lockwood and his co-defendant, Curtis A. Phillips, Jr. were arrested on July 24, 1986 as they were travelling north on Interstate 75 in Catoosa County. They were initially stopped for speeding and improper lane usage. A subsequent consent search of the vehicle, which belonged to Lockwood, revealed four bags of cocaine concealed behind the rear seat.
Lockwood contends the trial court erred in charging the jury that they were authorized to convict Lockwood of trafficking in cocaine if the jury found beyond a reasonable doubt that he had actual or constructive possession of the cocaine. 1
We agree. OCGA 16-13-31
(a) provides that "[a]ny person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in actual possession of 28 grams or more of cocaine . . . commits the felony offense of trafficking in cocaine . . . ." (Emphasis supplied.) The indictment alleged that Lockwood did "unlawfully knowingly actually possess more than four hundred (400) grams of cocaine, a controlled substance, in violation of the Georgia Controlled Substances Act." However, in the charge to the jury the trial court stated that "[y]ou would be authorized to convict if you should find beyond a reasonable doubt that the defendant had actual or constructive possession either alone or jointly with others."
"The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it." Lee v. State, 126 Ga. App. 38 (189 SE2d 872) (1972)
. See Allen v. State, 172 Ga. App. 663 (7) (324 SE2d 521) (1984)
and Evans v. State, 167 Ga. App.
In light of this we hold that the trial court committed error by charging that the jury was authorized to convict Lockwood based on a finding that he was in constructive possession of the cocaine. The statute clearly requires a finding of actual possession and not constructive possession.
WELTNER, Justice, dissenting.
The only kind of possession in this case is actual possession, as the contraband was found in Lockwood's car while he was driving it. Because there was no evidence that could have supported a finding of any other kind of possession, the trial court's charge as to constructive possession was surplusage, and harmless.
I am authorized to state that Chief Justice Marshall and Presiding Justice Clarke join in this dissent.
David L. Lomenick, Jr., District Attorney, David J. Dunn, McCracken K. Poston, Jr., Assistant District Attorneys, for appellee.