Bailey v. State

A charge on equal access was warranted by the evidence as to a firearms offense and the trial court should have sua sponte given it, once it instructed the jury on possession based on ownership of the premises where officers found the weapon.

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Preston Lewis Bailey was convicted following a jury trial of possession of a sawed-off shotgun and possession with intent to distribute cocaine. The trial court denied his motion for new trial and subsequently granted his motion to file an out-of-time appeal. On appeal, he challenges the sufficiency of the evidence to support his convictions and contends that the trial court erred by failing to instruct the jury on equal access. Viewed in the light most favorable to the jury’s verdict, the evidence at trial shows the following. Agent John Cobb testified that on June 22, 2005 he was part of the West Georgia Drug Task Force and the lead investigator in the execution of a search warrant at 168 Kennedy Estates Road in Carroll County, Georgia. Cobb testified that the property consisted of a “fairly” large brick house and that behind the house there was a shop with several buildings attached to it. Agent Cobb was in charge of searching the house and another agent, Agent James Sims, was in charge of searching the shop and other buildings. Both agents testified that Bailey was not present during the search but that his wife, two minor sons, two men who were living in the backside of the shop and another female who was living in an outbuilding in front of the shop were present.

Agent Cobb testified that during the search of what he described as the master bedroom, he located numerous firearms, including various caliber pistols, a shotgun and a rifle; the pistols were found under the mattress and in nightstands and the rifle and shotgun were located inside a gun cabinet located in the bedroom. Cobb testified that he also found a “quantity” of marijuana in a dresser drawer in the basement of the residence.

Bailey v. State

A charge on equal access was warranted by the evidence as to a firearms offense and the trial court should have sua sponte given it, once it instructed the jury on possession based on ownership of the premises where officers found the weapon.

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