The opinion
*522 Cooper, Judge,
dissenting.
I concur with Division 1 of the majority opinion, that the trial court did not err in denying appellant’s motion to suppress. However, I respectfully dissent as to the majority’s holding in Division 2, that the trial court correctly refused the jury charge on “equal access.”
The majority concluded that there was a scant amount of evidence at trial to support a charge on “equal access.” In my view, that imposes too narrow a view of the evidence in the context of contraband discovered on premises and ignores an important distinction between cases involving contraband found on premises and contraband discovered in automobiles. In the automobile context, it is much easier to connect an individual with contraband found therein due to the finite nature of an automobile, and it is somewhat reasonable to presume that one exercising control over a vehicle was also exercising control over contraband found therein. However, the same may not be true in the context of contraband discovered in a house, especially when it can be demonstrated that others had access to the premises. In addition to the evidence cited by the majority, the evidence adduced at trial demonstrated that one of the officers was “able to see people coming in and out of the apartment,” contrary to the trial court’s finding that there was no evidence that any other persons had access to the premises.
“ ‘ “(M)erely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” ’ [Cit.]” Blitch v. State, 188 Ga. App. 487, 488 ( 373 SE2d 227 ) (1988). “A rebuttable presumption arises when one leases [a residence], and contraband is found therein, that the lessee is in possession of the entire premises and all the property found on the premises. This presumption may be overcome by evidence that others have access to the premises. Whether this presumption is rebutted is solely a jury question. [Cit.]” Taylor v. State, 195 Ga. App. 651, 652 ( 394 SE2d 604 ) (1990). “ ‘Slight evidence will justify a charge even where the preponderance of the evidence tends to show the nonexistence of such a fact. . . .’ [Cit.]” Hicks v. State, 195 Ga. App. 887 (2) ( 395 SE2d 341 ) (1990). It is worthy of note that in Lance v. State, 191 Ga. App. 701 ( 382 SE2d 726 ) (1989), an automobile case which the majority relied upon, this court determined that there was insufficient evidence to give rise to the presumption of ownership or exclusive control of the vehicle; therefore, the equal access defense was not triggered, but the court did find a charge on joint possession proper. Id. at 703 . In the instant case, the evidence undisputably established that although appellant did not own the premises, he was exercising control over them, therefore raising the presumption and triggering the equal access defense, despite the trial *523 court’s decision not to charge accordingly. Moreover, the police observed individuals entering and leaving the residence through the door into the living room, where the drugs were discovered. In my view, the evidence required that the charge be given.
Decided July 16, 1991.
Mark D. Brimberry, for appellant.
Britt R. Priddy, District Attorney, Henry 0. Jones III, Assistant District Attorney, for appellee.
As to the majority’s contention that the particular charge requested by appellant was confusing or misleading, to the contrary, appellant’s charge was patterned after the charge given in Gee v. State, 130 Ga. App. 634 (2) ( 204 SE2d 329 ) (1974), which was upheld by this court as a proper equal access instruction.
For the reasons discussed above, I believe the trial court committed reversible error in refusing to give the requested charge.