Dalton v. State
| Citation | 249 Ga. 720,292 S.E.2d 834 |
| Decision Date | 30 June 1982 |
| Docket Number | No. 38663,38663 |
| Parties | DALTON v. The STATE. |
| Court | Supreme Court of Georgia |
J. Melvin England, Atlanta, for Barbara J. Dalton.
Susan Brooks, Asst. Dist. Atty., Decatur, for the State.
The appellant was indicted for "Trafficking in Illegal Drugs." "Any person who knowingly sells, manufactures, delivers, or brings into this State, or who is knowingly in actual possession of, four grams or more of any morphine, opium, or any salt, isomer, or salt of an isomer thereof, including heroin, as described in Schedule I and Schedule II, or four grams or more of any mixture containing any such substance, in violation of this Chapter, shall be guilty of the felony of 'Trafficking in Illegal Drugs.' " Code Ann. § 79A-811(k) (Ga.L.1980, p. 432). In this case, the indictment alleged that the appellant had been "knowingly ... in actual possession of more than Twenty-eight (28) Grams of Heroin."
Over objection by defense counsel, the trial judge charged the jury that it would be authorized to convict the appellant of unlawful possession of the heroin as a lesser included offense of trafficking. "Except as authorized by this Chapter, it is unlawful for any person to possess or have under his control any controlled substance." Code Ann. § 79A-811(a) (). As to the lesser included offense of unlawful possession, the trial judge charged the jury on the law of actual and constructive possession as stated in Lee v. State, 126 Ga.App. 38(2), 189 S.E.2d 872 (1972): " " The jury returned a verdict finding the appellant guilty of possession of the heroin, but not of trafficking.
On appeal to the Court of Appeals, 162 Ga.App. 7, 289 S.E.2d 801, the appellant argued, among other things, that possession is not an included offense within trafficking. The basis for this argument is that the offense of trafficking, under both § 79A-811(k) and the indictment here, requires knowing, actual possession of the controlled substance, whereas the offense of possession under § 79A-811(a) can be either actual or constructive possession. Therefore, the appellant argued that the allegation in the indictment that she had been in actual possession of the heroin did not put her on fair notice to defend against a charge of constructive possession only. The Court of Appeals rejected this argument, and we granted certiorari.
1. Under the "required evidence" test, and under the "actual evidence" and "alleged evidence" tests as they would be applied to the facts of this case, possession of heroin is a lesser included offense of trafficking in the heroin. See Haynes v. State, 249 Ga. 119, 288 S.E.2d 185 (1982).
The possession offense has the same but less than all of the elements of the trafficking offense. See Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). In this case, the possession offense was established by the same but less than all of the facts required under both the indictment and the evidence to establish the trafficking offense. Therefore, in this case possession is a lesser included offense of trafficking under Code Ann. § 26-505(a).
It would also appear that possession of a controlled substance differs from the crime of trafficking in the substance "only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission." Code Ann. § 26-505(b). Therefore,...
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