O.C.G.A. § 16-13-32.3 (2019)

Annotations

Law reviews. For survey article on criminal law and

procedure, see 34 Mercer L. Rev. 89 (1982). For note on the 1995 amendment of this Code section, see 12 Georgia St. U.L. Rev. 130 (1995).

JUDICIAL DECISIONS Same transaction established. - Defendant’s plea in bar on double jeopardy grounds was improperly denied as to the offense of use of a communication facility in committing a crime under the Fulton County indictment because the state agreed to nolle prose the Forsyth County indictment; and the county and city detectives’ testimony confirmed that the communications charged were one and the same. Laghaeifar v. State, 360 Ga. App. 843, 861 S.E.2d 808, 2021 Ga. App. LEXIS 403 (2021). Participation in later drug sale irrelevant to charge under statute. - When a defendant was charged with using a communication facility (telephone) to facilitate a sale of cocaine, it was immaterial to guilt under O.C.G.A. § 16-13-32.3 that the defendant did not participate in the subsequent sale of cocaine that the defendant had initially facilitated; the telephone call in which the defendant participated clearly aided in the sale of the cocaine. Thus, the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offense charged beyond a reasonable doubt. Hunt v. State, 196 Ga. App. 694, 396 S.E.2d 802, 1990 Ga. App. LEXIS 1006 (1990). Use of a telephone by defendant to arrange with another to pick up packages of drugs and deliver them to defendant’s apartment was sufficient evidence that defendant used a communication device to obtain possession of more than one ounce of marijuana. Russell v. State, 243 Ga. App. 378, 532 S.E.2d 137, 2000 Ga. App. LEXIS 392 (2000), cert. denied, No. S00C1237, 2000 Ga. LEXIS 634 (Ga. Sept. 11, 2000).

Use of a pager. - Because the defendant delivered cocaine to an informant and used a pager to aid in the cocaine’s distribution, the evidence was sufficient to find the defendant guilty of distributing cocaine and using a communication facility to facilitate a violation of the Georgia Controlled Substance Act, specifically violations of O.C.G.A. §§ 16-13-21(11) and 16-13-32.3(a). Capers v. State, 273 Ga. App. 427, 615 S.E.2d 126, 2005 Ga. App. LEXIS 374 (2005), cert. denied, No. S05C1592, 2005 Ga. LEXIS 546 (Ga. Sept. 19, 2005). Venue not established. - State failed to prove venue on a count for unlawful use of a communication facility; the indictment alleged that the defendant had used a cellular telephone in Long County, but the state had not set forth any evidence that the defendant used the telephone there. Maldonado v. State, 284 Ga. App. 26, 643 S.E.2d 316, 2007 Ga. App. LEXIS 248 (2007). With regard to a defendant’s trial on various drug charges, the defendant’s convictions on three counts of using a communication device to commit or facilitate the commission of a designated felony, in violation of O.C.G.A. § 16-13-32.3, were reversed because the state failed to prove venue since the state submitted no proof that three related phone calls made on September 23, 24, and 25, 2003, were made in Newton County, Georgia, wherein prosecution was sought. Rogers v. State, 298 Ga. App. 895, 681 S.E.2d 693, 2009 Ga. App. LEXIS 815 (2009). Evidence insufficient for conviction. - Transcripts of monitored telephone conversations between the

defendant and other individuals named in the indictment were insufficient to support defendant’s convictions of using a communications facility to commit, cause, or facilitate a violation of the Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., since the state introduced no evidence tending to suggest that any overt act was ever carried out in furtherance of the drug transaction which had been discussed. Kelleher v. State, 185 Ga. App. 774, 365 S.E.2d 889, 1988 Ga. App. LEXIS 255 (1988). When there was no direct evidence the defendant made a telephone call to arrange the delivery of cocaine as charged in the indictment, the circumstantial evidence was held to be insufficient as a matter of law to exclude other reasonable inferences. Britt v. State, 202 Ga. App. 689, 415 S.E.2d 492, 1992 Ga. App. LEXIS 167 (1992). Evidence sufficient for conviction. - Because: (1) the defendant failed to sufficiently prove an entrapment defense, and hence, the need for disclosure of an informant’s identity; (2) no error resulted in refusing to strike a juror for cause; and (3) the trial court’s entrapment

instruction was legally correct and did not mislead the jury, the defendant’s convictions for trafficking in cocaine, in violation of O.C.G.A. § 16-13-31(a), possession of cocaine with intent to distribute, contrary to O.C.G.A. § 16-13-30(b), and two counts of use of communication facilities in committing a felony drug offense, under O.C.G.A. § 16-13-32.3, were affirmed on appeal. Griffiths v. State, 283 Ga. App. 176, 641 S.E.2d 169, 2006 Ga. App. LEXIS 1516 (2006), cert. denied, No. S07C0652, 2007 Ga. LEXIS 333 (Ga. Apr. 24, 2007). Recorded conversations between an informant and a defendant proved the defendant’s violation of O.C.G.A. § 16-13-32.3, the use of communication facility in committing a felony. There was circumstantial evidence that the defendant was the participant in the phone calls, and the phone calls set up drug buys between the informant and the defendant. Kimble v. State, 301 Ga. App. 237, 687 S.E.2d 242, 2009 Ga. App. LEXIS 1358 (2009), cert. denied, No. S10C0570, 2010 Ga. LEXIS 464 (Ga. May 17, 2010), cert. denied, No. S10C0569, 2010 Ga. LEXIS 466 (Ga. May 17, 2010).