CopyCited 33 times | Published | Supreme Court of Georgia | Feb 12, 1986 | 255 Ga. 396
...Garland, Nuckolls & Catts, Donald F. Samuel, James B. Langford, Martin & Young, John R. Martin, for appellants. Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee. MARSHALL, Presiding Justice. In pertinent part, OCGA §
16-13-42 (a) (5) makes it unlawful for any person to knowingly "keep or maintain" any dwelling or other structure or place which is used for "keeping or selling" controlled substances in violation of the Georgia Controlled Substances Act. OCGA §
16-13-20 et seq. We granted certiorari in this case, Barnes v. State,
175 Ga. App. 621 (334 SE2d 205) (1985), to determine whether §
16-13-42 (a) (5) requires a showing of more than one instance of the proscribed activity, or more than a limited quantity of the controlled substance, to support a conviction. For reasons which follow, we hold that such a showing is required, and we reverse the appellants' conviction for violation of §
16-13-42 (a) (5) because no such showing was made here....
...And there was no evidence from any witnesses that the Barneses or any other people had smoked marijuana in the trailer. Among other things, the appellants were indicted for conspiracy to distribute marijuana (OCGA §§
16-13-30 (j) (1) and
16-13-33), maintaining a dwelling house where controlled substances were stored (OCGA §
16-13-42 (a) (5)), the misdemeanor offense of possession of less than one ounce of marijuana (OCGA §
16-13-2 (b)), and the felony offense of possession of marijuana (OCGA §
16-13-30 (j))....
...The evidence showed that the hydroxyzine was hive medicine prescribed for Cronan, and the Darvon and Preludin had been prescribed for other employees. The jury returned a verdict convicting the appellants of maintaining a dwelling house where controlled substances are kept, under §
16-13-42 (a) (5), and misdemeanor possession of less than an ounce of marijuana, under §
16-13-2 (b)....
...*398 A person convicted of possession of less than one ounce of marijuana under §
16-13-2 (b) is guilty of a misdemeanor punishable by imprisonment for a period not to exceed 12 months or a fine not to exceed $1,000, or both, or public works not to exceed 12 months. A person convicted under §
16-13-42 (a) (5) of maintaining a dwelling house where controlled substances are kept or sold is guilty of a felony punishable under §
16-13-42 (b) by imprisonment for not more than five years or a fine of not more than $25,000, or both. Here, the appellants were sentenced to one year in prison, four additional years on probation, and a $25,000 fine. Section
16-13-42 (a) (5) is derived from the Uniform Controlled Substances Act....
...As previously stated, the appellants in this case were convicted under §
16-13-2 (b) of possession of less than an ounce of marijuana, which is a misdemeanor. They were not convicted of possession of any other drug. However, they were also convicted under §
16-13-42 (a) (5) of the felony offense of maintaining a dwelling house where controlled substances are kept. It would be unreasonable and absurd to hold that the legislature intended to impose misdemeanor punishment under §
16-13-2 (b) for possession of less than an ounce of marijuana generally, but to impose felony punishment under §
16-13-42 (a) (5) solely on the ground that the marijuana was found in a "store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place." Therefore, we *402 decline to adopt this interpretation of the statute. See generally Drake v. Thyer Mfg. Corp.,
105 Ga. App. 20, 22 (123 SE2d 457) (1961). We hold as follows. First, we hold that in order to support a conviction under §
16-13-42 (a) (5) for maintaining a residence or other structure or place used for keeping controlled substances, the evidence must show that one of the purposes for maintaining the structure was the keeping of the controlled substance; thus, the mere possession of limited quantities of a controlled substance within the residence or structure is insufficient to support a conviction under §
16-13-42 (a) (5)....
CopyCited 32 times | Published | Supreme Court of Georgia | Aug 28, 2017 | 804 S.E.2d 388
...sues not decided by the trial court.
Hourin, the non-physician owner of a medical clinic, was charged with one count of conspiracy to commit the offense of unauthorized *836distribution and dispensation of controlled substances in violation of OCGA §
16-13-42....
...Turning to the merits of Hourin’s appeal, he argues that the trial court erred in denying his general demurrer and motion to dismiss. He contends that the indictment should be dismissed for two reasons: (1) the statutes under which he is charged, OCGA §
16-13-41 and OCGA §
16-13-42, are unconstitutionally vague as to whom they apply; and (2) OCGA §
16-13-41 (h) is unconstitutional because it shifts the burden of proof to the defendant. The trial court did not err in rejecting those arguments as a basis for dismissal.
(a) Hourin first argues that OCGA §
16-13-41 andOCGA §
16-13-42 are unconstitutionally vague....
...Therefore a vagueness challenge such as that raised by Hourin must be examined in the light of the facts of this case. Id.
*838The indictment alleges that Hourin conspired to commit the offense of unauthorized distribution and dispensation of a controlled substance in violation of OCGA §
16-13-42....
...tment alleges that Hourin possessed “13 prescriptions that were issued and signed in blank by Dr. Kelvin White, a practitioner and a person who is subject to the requirements of [OCGA §]
16-13-35[,] in violation of [OCGA §]
16-13-41(h)[.]”OCGA §
16-13-42 (a) (1) makes it “unlawful for any person......
...*839Hourin argues that the statutes under which he is charged are unconstitutionally vague because they do not put him on notice that they apply to a person who is not a “practitioner.” But regardless of whether Hourin could be convicted of violating OCGA §
16-13-42 (a) (1) or OCGA §
16-13-41 (h), andregardless ofwhether the statutes are vague as applied to him, Hourin’s argument fails because it rests on the faulty premise that a defendant cannot be convicted of conspiring to commit a particular offense if he could not be convicted of committing the underlying offense....
...112, 120-121 (53 SCt 35, 77 LE 206) (1932); United States v. Rabinowich, 238 U. S. 78, 86 (35 SCt 682, 59 LE 1211) (1915); United States v. Holte, 236 U. S. 140, 145 (35 SCt 271, 59 LE 504) (1915). Thus, even if Hourin could not be convicted of violating OCGA §
16-13-42 (a) (1) or OCGA §
16-13-41 (h), he may be prosecuted for conspiring with another to violate those provisions....
CopyCited 17 times | Published | Supreme Court of Georgia | May 31, 2011 | 289 Ga. 220, 2011 Fulton County D. Rep. 1605
...The evidence authorized the jury to find Chua guilty beyond a reasonable doubt of felony murder by violating OCGA §
16-13-41(f). Jackson v. Virginia, supra; Greeson, supra. (c) Chua was also convicted of knowingly keeping a dwelling for the purpose of using controlled substances in violation of OCGA §
16-13-42(a)(5). [10] In discussing this Code section, this Court has stated: [F]irst, we hold that in order to support a conviction under [OCGA] §
16-13-42(a)(5) for maintaining a residence or other structure or place used for keeping controlled substances, the evidence must show that one of the purposes for maintaining the structure was the keeping of the controlled substance; thus, the mere possession of limited quantities of a controlled substance within the residence or structure is insufficient to support a conviction under OCGA §
16-13-42(a)(5)....
...[9] The jury was instructed that "the death must be the probable consequence or the natural or necessary result of the unlawful act of any of the defendant's alleged violations of the Georgia Controlled Substances Act as set forth in" the indictment. [10] OCGA §
16-13-42 reads: (a) It is unlawful for any person: (1) Who is subject to the requirements of Code Section
16-13-35 to distribute or dispense a controlled substance in violation of Code Section
16-13-41; (2) Who is a registrant to manufacture a con...
CopyCited 7 times | Published | Supreme Court of Georgia | Mar 23, 2009 | 285 Ga. 251, 2009 Fulton County D. Rep. 1019
...Reconsideration Denied April 10, 2009. *885 Pate & Brody, Page A. Pate, Atlanta, for appellant. Thurbert E. Baker, Atty. Gen., Robert W. Lavender, Dist. Atty., for appellee. CARLEY, Justice. Appellant Paul E. Raber was indicted for 33 counts of violating OCGA §
16-13-42(a)(1) by unlawfully distributing or dispensing a controlled substance, in that he, being a licensed practitioner under the laws of this state, "did unlawfully issue a prescription document signed in blank in violation of OCGA §
16-13-41....
...o be the ultimate user of the prescription. Under the majority's interpretation of OCGA §
16-13-41(h), the physician "issued" the prescription document to the nurse and because the document so issued was signed in blank, the physician violated OCGA §
16-13-42(a)(1) by unlawfully "distribut[ing] or dispens[ing] a controlled substance in violation of Code Section
16-13-41." The majority justifies its interpretation of "issue" in OCGA §
16-13-41(h) by referencing the usual statutory interpretati...
...s direct medical supervision. Yet this is precisely the construction the majority gives to OCGA §
16-13-41(h) so as to bring within the ambit of this statute practitioners like Dr. Raber, who has been charged with 33 felony counts of violating OCGA §
16-13-42(a)(1), all because he gave his nurse a pad of pre-signed blank prescription documents not for her own use but for his patients' legitimate medical needs....
...unauthorized persons without a legitimate medical purpose and without proper medical supervision. This is the construction that would categorize Dr. Raber not as a "drug dealer with a medical license" subject to felony punishment for violating OCGA §
16-13-42(a)(1), but as a small-town physician who engaged in unprofessional conduct under the rules of the Composite State Board of Medical Examiners, whose lapse is best addressed by the Board and the Medical Association of Georgia....
