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Brown v. State

Defendant was entitled to misdemeanor penalties for selling fake crack cocaine where her conduct violated both felony and misdemeanor statutes.

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This appeal requires us to consider whether OCGA § 16-13-30.2 punishes as a misdemeanor the same conduct that resulted in Kandy Brown’s felony conviction under OCGA § 16-13-30.1 for selling fake crack cocaine, and, if so, whether Brown should have been convicted of the misdemeanor instead of the felony. Because the two statutes provide different penalties for the same conduct, the rule of lenity requires that Brown be subjected to the lesser of the two penalties —in this case, the misdemeanor penalties of OCGA § 16-13-30.2. Accordingly, we reverse her felony conviction under OCGA § 16-13-30.1 a 1 A. On April 30, 2001, as part of a police-controlled buy of illegal drugs, a police informant went to an area known for illegal drug sales and asked Brown for a “twenty,” which is slang for a twenty-dollar rock of crack cocaine. Brown handed him a small rock that, according to the informant, “looked like crack.” The informant negotiated the price down to ten dollars, paid Brown, and took the rock to the police.

The State initially charged Brown with selling crack cocaine. However, after determining that the rock was not cocaine, the State indicted Brown for the felony of selling a noncontrolled substance that she implicitly represented to be a controlled substance, in violation of OCGA § 16-13-30.1 a 1 A. Brown waived her right to a jury trial, and the trial court found her guilty.

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