X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

McFadden, Presiding Judge.Charles Lee Pennington, Jr. appeals from his convictions for trafficking in methamphetamine (OCGA § 16-13-31 (f) (1)) and possession with the intent to distribute of a controlled substance near a school (OCGA § 16-13-32.4). He challenges the sufficiency of the evidence as to both convictions, but the evidence was sufficient to support them. He argues that the trial court erred in striking a prospective juror for cause, but he has not shown that the trial court abused his discretion in striking the prospective juror. Finally, he argues that the trial court erred in failing to charge the jury on an affirmative defense related to the offense of possession with intent to distribute near a school, but he was not entitled to that charge because he did not admit to having committed the offense. So we affirm.   1. Sufficiency of the evidence.“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (emphasis omitted).So viewed, the evidence showed that on September 25, 2014, law enforcement officers, based on a tip, went to property adjacent to an elementary school. Pennington was using a shed on the property as his residence. The shed was less than 100 feet away from the elementary school property.   With Pennington’s consent, the officers searched the shed, which was divided into a common area and two bedrooms. The shed appeared to be an active methamphetamine lab, and the smell of chemicals associated with methamphetamine production could be detected inside and outside the shed. Pennington showed the officers a vessel of a type used for manufacturing methamphetamine, which had been hidden behind a dresser in a common area and which contained methamphetamine residue. The officers also found in the common area a bottle of a substance used in methamphetamine production.In Pennington’s room, the officers found numerous empty, unused plastic baggies of a type used in the distribution or storage of drugs, a used plastic baggie containing methamphetamine residue, and a glass pipe with methamphetamine residue on it. The officers also found in Pennington’s room equipment and substances used in methamphetamine production. The officers found empty plastic baggies in the other bedroom and empty, discarded containers of substances used in methamphetamine production outside the shed.(a) Trafficking.   Pennington argues that this evidence was insufficient to show that he committed the offense of trafficking in methamphetamine. We disagree. The state charged Pennington with trafficking pursuant to OCGA § 16-13-31 (f) (1), which pertinently provides that “[a]ny person who manufactures methamphetamine . . . commits the felony offense of trafficking methamphetamine” and sets the minimum punishment for such an offense if the quantity of methamphetamine involved is less than 200 grams. The evidence, which included the presence of equipment and supplies for the production of methamphetamine in both the common area and Pennington’s room in the shed, authorized the jury to find Pennington guilty of trafficking in methamphetamine. See State v. Nankervis, 295 Ga. 406, 410-411 (3) (761 SE2d 1) (2014).(b) Possession with intent to distribute near a school.We also do not agree with Pennington’s argument that the evidence was insufficient to support his conviction for possession of methamphetamine with intent to distribute near a school. OCGA § 16-13-32.4 (a) provides that[i]t shall be unlawful for any person to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana in, on, or within 1,000 feet of any real property owned by or leased to any public or private elementary school, secondary school, or school board used for elementary or secondary education.    The evidence authorized the jury to find that Pennington was in possession of methamphetamine within 1,000 feet of an elementary school. While only the residue of methamphetamine was found in Pennington’s shed at the time of his arrest, there was circumstantial evidence that he had recently possessed methamphetamine, including the presence of equipment and ingredients for manufacturing methamphetamine and the strong odor of methamphetamine that permeated the shed. The state was permitted to prove that Pennington committed this offense on any date within the statute of limitations because the indictment did not allege that the date of Pennington’s possession of methamphetamine was material. See Ledesma v. State, 251 Ga. 885 (1) (a) (311 SE2d 427) (1984). And there was evidence that he intended to distribute the methamphetamine that had been in his possession, including the presence of unused plastic baggies and the testimony of a law enforcement officer that such baggies often were used for the distribution of drugs. Although, in support of his sufficiency challenge, Pennington points to the absence of digital scales or money in shed, “no bright line rule exists regarding the amount or type of evidence sufficient to support a conviction for possession with intent to distribute.” Jones v. State, 304 Ga. App. 109, 111 (1) (a) (696 SE2d 665) (2010) (citation and punctuation omitted).2. Striking of prospective juror.   Pennington argues that the trial court erred in striking a prospective juror — Juror 49 — for cause. “Whether to strike a potential juror for cause is a matter for the trial court’s sound discretion. As the trial court’s conclusion regarding bias is based in part on demeanor and credibility, which are peculiarly within the trial court’s province, those findings are to be given deference.” Porter v. State, 278 Ga. 694, 697 (5) (606 SE2d 240) (2004) (citation and punctuation omitted). We will not reverse the trial court’s decision to strike a prospective juror for cause absent manifest abuse of discretion. Gray v. State, 298 Ga. 885, 887 (2) (785 SE2d 517) (2016).In an order denying Pennington’s motion for new trial, the trial court explained that he decided to strike Juror 49 “based on her multiple objections and statements that she was unable to be fair and impartial.” The trial court specifically noted in his order four objections that Juror 49 had made during the voir dire process. The record shows that Juror 49 made the following objections: (1) She stated, “I don’t feel that I have the right to determine or make decisions whether a person is innocent or guilty, based on my religion,” but did not name her religion during voir dire; (2) she stated that she had been burglarized and indicated that this experience would influence her decision-making process in reaching a fair and impartial verdict; (3) she stated that she had a “forgetful” memory due to a medical condition and medication that she took; and (4) she responded affirmatively to the trial court’s general voir dire question whether, “due to philosophical or religious beliefs or any other reason, [anyone could not] consider the evidence and the instructions of the Court and render a verdict of acquittal or conviction in this case, based on the evidence and the applicable law.”The state sought to strike Juror 49 for cause, leading to the following colloquy:   The Court: . . . Requests for dismissals for cause from the [s]tate.

[Prosecutor]: Number 3 and number 49.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
June 20, 2024
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
April 25, 2024
Dubai

Law firms & in-house legal departments with a presence in the middle east celebrate outstanding achievement within the profession.


Learn More
April 29, 2024 - May 01, 2024
Aurora, CO

The premier educational and networking event for employee benefits brokers and agents.


Learn More

A large and well-established Tampa company is seeking a contracts administrator to support the company's in-house attorney and manage a wide...


Apply Now ›

We are seeking an attorney to join our commercial finance practice in either our Stamford, Hartford or New Haven offices. Candidates should ...


Apply Now ›

We are seeking an attorney to join our corporate and transactional practice. Candidates should have a minimum of 8 years of general corporat...


Apply Now ›
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›
04/08/2024
Daily Report

Daily Report 1/2 Page Professional Announcement 60 Days


View Announcement ›