ASBERRY v. STATE

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Docket Number

A95A2759

Attorney(S)

Timothy T. Herring, for appellant. Lewis R. Slaton, District Attorney, John M. Turner, Jr., Rebecca A. Keel, Assistant District Attorneys, for appellee.

Judges

BLACKBURN, Judge.

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Smart Summary

Factual and Procedural Background

Cedric Asberry was found in possession of eleven bags of marijuana and a handgun during the execution of a search warrant at his hotel room. He was convicted of possession of a firearm during the commission of a crime and possession of a firearm by a convicted felon. The case reached the Court of Appeals of Georgia on appeal from the Fulton Superior Court, raising a question about the classification of marijuana under Georgia law for purposes of firearm possession during the commission of a crime.

Legal Issues Presented

Whether marijuana is a "controlled substance" under OCGA § 16-13-30 for purposes of prosecution under OCGA § 16-11-106 (b) (4), which criminalizes possession of a firearm during the commission of certain drug-related felonies.

Arguments of the Parties

Appellant's Arguments

Marijuana is not classified as a controlled substance under OCGA § 16-13-30 for the purpose of OCGA § 16-11-106 (b) (4).
The statute distinguishes marijuana from controlled substances, and thus the firearm possession statute does not apply to marijuana offenses.

Appellee's Arguments

The Georgia Controlled Substances Act includes proscriptions against marijuana, so marijuana should be considered a controlled substance under OCGA § 16-11-106 (b) (4).
Cited Jones v. State as supporting authority, though the court found this case factually inapposite.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jones v. State, 184 Ga. App. 4 (360 S.E.2d 599) (1987)	Addressed possession of a firearm, not whether marijuana is a controlled substance.	Found factually inapposite; defendant's firearm conviction was reversed, not affirmed.
Buice v. Dixon, 223 Ga. 645, 647 (157 S.E.2d 481) (1967)	Statutes are presumed enacted with knowledge of existing law and must be construed in harmony with it.	Used to interpret legislative intent distinguishing marijuana from controlled substances.
State v. Crane, 247 Ga. 779, 780 (279 S.E.2d 695) (1981)	When a criminal statute is ambiguous, it must be construed strictly against the State and in favor of the accused.	Supported strict construction of the statute excluding marijuana as a controlled substance under OCGA § 16-11-106 (b) (4).

Court's Reasoning and Analysis

The court analyzed the statutory language of OCGA § 16-11-106 (b) (4), which criminalizes possession of a firearm during the commission of a felony involving controlled substances "as provided in Code Section 16-13-30." The court observed that the legislature explicitly distinguishes between "controlled substances" and "marijuana" within OCGA § 16-13-30, assigning different paragraphs and penalties for offenses involving each. The use of the terms in disjunctive form further evidences this distinction.

The court rejected the State's argument that marijuana should be considered a controlled substance under the broader Georgia Controlled Substances Act, emphasizing that OCGA § 16-11-106 (b) (4) specifically references controlled substances as defined in OCGA § 16-13-30, which excludes marijuana from the listed controlled substances schedules. The definitions in OCGA § 16-13-21 clarify that marijuana is separately defined and not included in the schedules enumerating controlled substances.

Applying established rules of statutory construction, the court presumed that the legislature was aware of the distinction and intended to exclude marijuana from the scope of OCGA § 16-11-106 (b) (4). Furthermore, the court noted that harsher penalties apply to crimes involving controlled substances than those involving marijuana, supporting the legislative intent to treat them differently. Finally, the court applied the principle that ambiguous criminal statutes must be construed in favor of the accused, leading to reversal of the conviction under the firearm possession statute tied to controlled substances.

Holding and Implications

The court held that the trial court erred in instructing the jury that marijuana was a controlled substance for purposes of OCGA § 16-11-106 (b) (4). Consequently, Asberry's conviction under that statute is reversed. The other conviction for possession of a firearm by a convicted felon was unaffected.

This decision directly affects the parties by reversing one of Asberry's convictions but does not establish a new precedent beyond clarifying the statutory distinction between marijuana and controlled substances for this specific firearm possession statute.

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ASBERRY v. THE STATE

BLACKBURN, Judge.

Cedric Asberry's appeal of his conviction for possession of a firearm during the commission of a crime presents the first impression issue of whether or not marijuana is a controlled substance under OCGA § 16-13-30 for the purpose of a prosecution under OCGA § 16-11-106 (b) (4).

During the execution of a search warrant, police found eleven bags of marijuana and a handgun in Asberry's possession in his hotel room. Asberry was convicted of possession of a firearm during the commission of a crime as well as possession of a firearm by a convicted felon.

OCGA § 16-11-106 (b) (4) provides that "[a]ny person who shall have on or within arm's reach of his person a firearm . . . during the commission of . . . [a]ny crime involving the possession, manufacture, delivery, distribution, dispensing, administering, selling, or possession with intent to distribute any controlled substance as provided in Code Section 16-13-30 . . . and which crime is a felony, commits a felony." (Emphasis supplied.)

While the possession, manufacture, delivery, distribution, purchase or sale of marijuana do constitute a crime under OCGA § 16-13-30 (j), a review of OCGA § 16-13-30 indicates that, within the statute, the legislature distinguishes between controlled substances and marijuana, and OCGA § 16-11-106 (b) (4) limits prosecutions to cases involving controlled substances. In particular, the legislature provided separate and distinct paragraphs and punishments for those offenses involving controlled substances and those involving marijuana. Compare OCGA §§ 16-13-30 (c), (d), (e), (f), (g), and (h) with OCGA § 16-13-30 (j). The legislature's intent to distinguish controlled substances from marijuana is evident in other respects. The one time the two terms are used within the same subparagraph of the statute, they are used in the disjunctive. See OCGA § 16-13-30 (k) ("It shall be unlawful for any person to hire . . . an individual under the age of 17 years . . . for the purpose of manufacturing, distributing, or dispensing, on behalf of the solicitor, any controlled substance, counterfeit substance, or marijuana"). (Emphasis supplied.)

In response to Asberry's claims that marijuana is not a controlled substance for purposes of OCGA § 16-11-106 (b) (4), the State argues that the Georgia Controlled Substances Act, OCGA §§ 16-13-20 through 16-13-56, contains proscriptions against marijuana, and, thus, marijuana should be considered a controlled substance. OCGA § 16-11-106 (b) (4), however, does not refer to acts which constitute a violation of the Georgia Controlled Substances Act, OCGA §§ 16-13-20 through 16-13-56, but rather limits prosecutions to acts involving controlled substances as provided in OCGA § 16-13-30.

The only other authority cited by the State, Jones v. State, 184 Ga. App. 4 ( 360 S.E.2d 599) (1987) is factually inapposite as it addressed the issue of whether the defendant was in possession of the firearm — not whether marijuana was a controlled substance. Moreover, contrary to the State's assertion, in Jones the defendant's conviction on the firearm charge was reversed, not affirmed.

The State's interpretation also ignores several cardinal rules of statutory construction. "[I]t is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it." Buice v. Dixon, 223 Ga. 645, 647 ( 157 S.E.2d 481) (1967). Accordingly, statutes "are to be construed in connection and in harmony with the existing law." Id. Following this precept, we must presume that in adopting OCGA § 16-11-106 (b) (4), the legislature was well aware that the drug statute it chose to specify, OCGA § 16-13-30, used the terms "controlled substance" and "marijuana" distinctly and separately. The very title of OCGA § 16-13-30, "Purchase, possession, manufacture, distribution, or sale of controlled substances or marijuana; penalties" reflects that the terms are distinctive.

"`Controlled substance' means a drug, substance, or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29 and Schedules I through V of 21 C.F.R. Part 1308." OCGA § 16-13-21 (4). Marijuana is not listed within any of the schedules contained in this definition.

"`Marijuana' means all parts of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include samples as described in subparagraph (P) of paragraph (3) of Code Section 16-13-25 and shall include the completely defoliated mature stalks of such plant, fiber produced from such stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination." OCGA § 16-13-21 (16).

Consequently, when the legislature expressly incorporated only those provisions of OCGA § 16-13-30 that concerned "controlled substances," it excluded those provisions of OCGA § 16-13-30 that concern "marijuana."

The legislature's limitation of OCGA § 16-11-106 (b) to cases involving controlled substances is consistent with their prior determination that crimes involving the possession, manufacture, delivery, distribution, dispensing, administering, selling, or possession with intent to distribute certain controlled substances merit harsher punishment than the same crimes involving marijuana. Compare OCGA §§ 16-13-30 (c), (d), (e), and (f) with OCGA § 16-13-30 (j); see also OCGA § 16-11-106 (b) (5) (statute expressly provides that possession of a firearm by someone trafficking in marijuana is unlawful). Furthermore, "[w]hen a criminal statute fairly and reasonably is subject to two constructions, one which would render an act criminal, the other which would not, the statute must be construed strictly against the State and in favor of the accused." (Punctuation omitted.) State v. Crane, 247 Ga. 779, 780 ( 279 S.E.2d 695) (1981).

The trial court erred in charging the jury that marijuana was a controlled substance for purposes of OCGA § 16-11-106 (b) (4), and Asberry's conviction under that statute is hereby reversed. No error having been enumerated with regard to Asberry's other conviction, it is unaffected by this opinion.

Judgment reversed. McMurray, P.J., and Andrews, J., concur.