Smith v. State

Insufficient evidence existed to support a charge of possession of marijuana, since the state failed to establish that the defendant possessed the marijuana or had the intent to exercise dominion or control over the marijuana.

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We granted Braddick D. Smith’s application for discretionary review of the revocation of his probation. Smith appeals, arguing that the trial court erred 1 in finding that the evidence was sufficient to show that he possessed less than an ounce of marijuana; 2 in failing to include findings of fact in its probation revocation order; and 3 in admitting the crime lab report into evidence. Finding that the evidence was insufficient to show Smith’s intent to exercise dominion and control over the marijuana in issue, we reverse. The trial court “may not revoke any part of any probated . . . sentence unless . . . the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation . . . alleged.” OCGA § 42-8-34.1 b. “This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.” Footnote and punctuation omitted. Brown v. State , 294 Ga. App. 1, 3 2 668 SE2d 490 2008.

The record shows that in June 2009, Smith pled guilty to possession of cocaine, obstruction of an officer, and driving with a suspended license, and received a sentence of five years probation. As a condition of his probation, Smith was prohibited from “violating the criminal laws of any governmental unit.” Thereafter, the State brought a petition to revoke Smith’s probation alleging that Smith violated a term of probation, to wit: “by committing the new offense of possession of marijuana less than one ounce on or about August 16, 2009 in Upson County, Georgia.”

Smith v. State

Insufficient evidence existed to support a charge of possession of marijuana, since the state failed to establish that the defendant possessed the marijuana or had the intent to exercise dominion or control over the marijuana.

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