729 S.E.2d 364 | Ga. | 2012
A package containing 12.46 pounds of marijuana arrived at a post office in Hall County addressed to “Abby at 1830 Vineyard Way.” The post office mistakenly notified Abby Massaro of 1930 Vineyard Way. Ms. Massaro collected the package from the post office, discovered the marijuana, and contacted police. A law enforcement officer, dressed as a postal carrier, performed a controlled delivery of the package to 1830 Vineyard Way, with other officers waiting nearby. Appellant Justin Wilson answered the door and told the undercover officer that Abby was not at home but that “the package was expected and he would sign for it.” Appellant accepted delivery and was immediately arrested. Appellant told the officers that his roommate, Daniel Park, had mentioned that he was having a package containing marijuana shipped to the apartment. Appellant also stated that he believed the package was ultimately intended to be delivered to David Salinas, a friend of Park. Both Park and Salinas were convicted during separate jury trials of trafficking in marijuana, possession of marijuana with intent to distribute, and possession of marijuana. Their convictions were affirmed on appeal. Salinas v. State, 313 Ga. App. 720 (722 SE2d 432) (2012); Park v. State, 308 Ga. App. 648 (708 SE2d 614) (2011).
On October 8, 2008, Appellant was indicted for the charges of trafficking in marijuana, possession of marijuana with intent to distribute, and felony possession of marijuana. At trial, the court charged the jury that OCGA § 16-13-31 (c), the trafficking in marijuana statute, does not require the State to prove that Appellant had knowledge of the quantity of the marijuana he possessed in order to be convicted of this offense. Appellant made no contemporaneous objection to this charge. He was subsequently convicted of all charges. After a motion for new trial was denied, Appellant appealed to the
As it is undisputed that Appellant did not object to the jury instruction at trial, any alleged error in that charge is subject to plain error review pursuant to OCGA § 17-8-58 (b). In State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011), we set forth four prongs to consider when analyzing a jury charge for plain error:
“First, there must be an error or defect — some sort of ‘(deviation from a legal rule’ — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it ‘affected the outcome of the (t)rial court proceedings.’ Fourth and finally, if the above three prongs are satisfied, the (appellate court) has the discretion to remedy the error — discretion which ought to be exercised only if the error ‘ “seriously affect(s) the fairness, integrity or public reputation of judicial proceedings.” ’ ” [Cit.]
(Emphasis in original.) Appellant asserts that it was plain error for the trial court to instruct the jury that a conviction of trafficking does not require proof that the defendant knew that the weight of the marijuana he possessed exceeded ten pounds. In relevant part, OCGA § 16-13-31 (c) states that “[a]ny person who knowingly... has possession of a quantity of marijuana exceeding 10 pounds commits the offense of trafficking in marijuana. .. .” Affording the statute its plain meaning and considering that we must apply the rule of lenity when interpreting penal statutes, we believe that Appellant’s argument that OCGA § 16-13-31 (c) requires proof that he knew the amount of the marijuana he possessed may be meritorious. However, even if Appellant is correct and the trial court erred in instructing the jury that knowledge of the weight of the drug is not required for a conviction of trafficking, since this case is before us on plain error review, an actual legal error is not enough but must be “ ‘clear or obvious [and not] subject to reasonable dispute.’ ” State v. Kelly, supra. Although this Court has not addressed the issue, the Court of Appeals has addressed it within the context of the cocaine trafficking
Judgment affirmed.
