Budhani v. State

• Decision Date: 07 March 2018
• Docket Number: A18A0645
• Citation: 812 S.E.2d 105
• Parties: BUDHANI v. The STATE.
• Court: Georgia Court of Appeals

345 Ga.App. 34

812 S.E.2d 105

BUDHANI

v.The STATE.

A18A0645

Court of Appeals of Georgia.

March 7, 2018

Brian Steel, Atlanta, Miguel Marc Debon Debon, for Appellant.

Layla Hinton Zon, Jillian Rachael Hall, for Appellee.

Miller, Presiding Judge.

Mahemood Budhani was convicted of three counts of unlawful sale of a schedule 1 controlled substance, known as XLR11, in violation of OCGA § 16–13–30 (b) (2014) for sales occurring on three separate dates, and one count of unlawful possession with intent to distribute of the Schedule 1 controlled substance XLR11 in violation of OCGA § 16–13–30 (b) (2014). Budhani appeals, alleging that (1) the indictment against him was void for failure to allege essential elements of the crimes; (2) the trial court erred in denying his motion to dismiss a juror for cause; and (3) the trial court erred in admitting his custodial statement upon finding that it was voluntarily given. For the following reasons, we affirm.

Viewed in the light most favorable to the verdict,¹ the evidence shows that between October and December 2014, police used a confidential informant to conduct three controlled buys of XLR11, a synthetic form of marijuana, from Budhani. In December, police executed a search warrant for the gas station where Budhani worked and where the sales took place, and they located additional packages of synthetic marijuana. Defendant admits all of the packages obtained during the controlled buys and the search contain XLR11. Each of the packages has a label that reads that the contents are "not for human consumption."

After his arrest, Budhani was taken to the police station where he was given a Miranda² warning and questioned by police. The interrogation was recorded. Officers indicated that Budhani made no incriminating statements prior to the interrogation being taped. During the interrogation, Budhani signed a waiver indicating that he had not been promised anything in exchange for talking to the police. Officers asked Budhani about how long he had been selling synthetic marijuana, and he initially indicated that it had only been two to three weeks. Officers pressed Budhani that he was not being truthful, stating "You want to help yourself, I'm giving you an opportunity to ..." They further told Budhani that even if he confessed to selling drugs for a longer time, they would not charge Budhani with additional crimes. Officers clearly advised Budhani that they could not make him any promises, or give him a hint that he would not be in trouble or would be in less trouble if he was truthful, because that determination was up to the district attorney. The officers did state that, if Budhani was truthful with them, they would communicate that fact to the district attorney. Ultimately, Budhani stated that he had been selling drugs for no longer than two months.

Budhani moved to suppress the custodial statement on the grounds that it was involuntary because he had been told by police that if he cooperated he could benefit from a reduction of charges, elimination of charges, or a reduced sentence. The trial court denied the motion to suppress after finding that the custodial statement was voluntary because it was given without the hope of benefit.

Following a jury trial, Budhani was convicted of all four charges, and he now appeals.

1. Budhani alleges that his indictment was void for failure to allege a material element of the crimes. We disagree.

Budhani filed a general demurrer in this case, which the trial court denied. "A general demurrer challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime." (Citation and footnote omitted.) State v. Wilson , 318 Ga.App. 88, 91 (1), 732 S.E.2d 330 (2012). "[T]his Court reviews a trial court's ruling on a general or special demurrer de novo in order to determine whether the allegations in the indictment are legally sufficient." (Citation, punctuation, and footnote omitted.) Smith v. State , 340 Ga.App. 457, 459, 797 S.E.2d 679 (2017).

[A]n indictment is void to the extent that it fails to allege all the essential elements of the crime or crimes charged. That

principle is founded upon the constitutional guaranty of due process. Due process of law requires that the indictment on which a defendant is convicted contain all the essential elements of the crime ... Unless every essential element of a crime is stated in an indictment, it is impossible to ensure that the grand jury found probable cause to indict. An indictment that alleges the accused violated a certain statute, without more, would simply state a legal conclusion regarding guilt, and not an allegation of facts from which the grand jury determined probable cause of guilt was shown. Likewise, it would not allege sufficient facts from which a trial jury could determine guilt if those facts are shown at trial. A valid indictment uses the language of the statute, including the essential elements of the offense, and is sufficiently definite to advise the accused of what he must be prepared to confront. In sum, to withstand a general demurrer, an indictment must: (1) recite the language of the statute that sets out all the elements of the offense charged, or (2) allege the facts necessary to establish violation of a criminal statute. If either of these requisites is met, then the accused cannot admit the allegations of the indictment and yet be not guilty of the crime charged.

(Citations and punctuation omitted.) Jackson v. State , 301 Ga. 137, 139–141 (1), 800 S.E.2d 356 (2017).

Here, Count 1 of the indictment charged Budhani with:

... SALE OF A SCHEDULE I CONTROLLED SUBSTANCE for that the said accused on the 18th day of October, 2014, said date being material, in Newton County, Georgia, then and there: did unlawfully sell ... (XLR11), a Schedule I Controlled Substanc (sic) , in violation of OCGA § 16–13–30 (b)...

Counts 2 and 3 of the indictment are identical except that they contain different dates of sale.³

Count 4 charged Budhani with:

... POSSESSION OF A SCHEDULE I CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE for that the said accused on the 12th day of December, 2014, in

Newton County, Georgia, then and there: did unlawfully possess with intent to distribute ... (XLR11), a schedule I controlled substance, in violation of OCGA § 16–13–30 (b), said act being separate and distinct from any other Count of this Indictment ...

Budhani contends that the indictment is void because it fails to allege the inapplicability of certain exemptions. OCGA § 16–13–30 (b) (2014) provides:

Except as authorized by this article, it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance .

(emphasis supplied.)

A schedule I controlled substance, as is relevant to this appeal, is defined as

...

(12) Any of the following compounds, derivatives, their salts, isomers, or salts of isomers, halogen analogues, or homologues, unless specifically utilized as part of the manufacturing process by a commercial industry of a substance or material not intended for human ingestion or consumption, as a prescription administered under medical supervision, or research at a recognized institution ...

...

(N) ... (XLR11);

(Emphasis supplied.) OCGA § 16–13–25 (12) (N) (2014).

As an initial matter, we find that establishing that the XLR11 sold and possessed by Budhani meets the statutory definition of a "schedule I controlled substance" is an element of the offenses with which Budhani has been charged.⁴ The indictment against Budhani did not explicitly allege that the XLR11 here was not "specifically utilized as part of the manufacturing process by a commercial industry of a substance or material not intended for human ingestion or consumption, as a prescription administered under medical supervision, or research at a recognized institution." See OCGA § 16–13–25 (12) (N) (2014). The question before this Court is whether this omission of the above mentioned language is fatal to the indictment. We find that it is not because the indictment "recite[s] a sufficient portion of the statute to set out all the elements of the offense for which [Budhani] was tried and convicted." See Jackson , supra, 301 Ga. at 142 (2), 800 S.E.2d 356.

Specifically, the indictment alleges that Budhani both possessed and sold "a schedule I controlled substance." The statutory definition of a schedule I controlled substance in 2014 excluded XLR11 that was "specifically utilized as part of the manufacturing process by a commercial industry of a substance or material not intended for human ingestion or consumption, as a prescription administered under medical supervision, or research at a recognized institution." OCGA § 16–13–25 (12) (N) (2014). Thus, in order for the XLR11 to even qualify as a "schedule I controlled substance," the exemptions could not have applied. In other words, the very definition of a "schedule I controlled substance" embodies an allegation that the exceptions were inapplicable. Consequently, although the indictment does not explicitly allege the inapplicability of the exemptions, it inherently does so by alleging that the substance possessed and sold by Budhani was, in fact, by definition, a "schedule I controlled substance."

Our reasoning here comports with the Supreme Court of Georgia's recent analysis in Jackson . The indictment here put Budhani on notice of the "factual allegations he must defend in court." See Jackson , supra, 301 Ga. at 140 (1), 800 S.E.2d 356. The indictment put Budhani on notice of the specific dates involved, his actions that constituted an alleged violation of OCGA § 16–13–30 (b) (2014), and that the State alleged that the XLR11 he sold and possessed was a "schedule I controlled substance" as that term is defined by statute. Consequently, the due process concerns present in Jackson do not exist here and Budhani's indictment is not void.⁵

2. Budhani next argues...