Bridges v. State ( 1990 )

Beasley, Judge,

concurring specially.

I fully concur in Divisions 1 and 2. As to Division 3, the error enumerated is that the court’s charge on possession was incorrect and that the court should have given defendant’s requests to charge on that subject.

The defendant was not charged with trafficking by “possession” of cocaine but rather with trafficking by “bringing into this state” marijuana. OCGA § 16-13-31 (a) (1). Defendant requested charges on possession by way of certain quotations from Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988). The court charged that trafficking is committed when a person “knowingly brings into this State or has actual possession of, or delivers” marijuana. It did explain the distinction between actual and constructive possession substantially as defendant had requested. The only exception defendant took was that the court did not point out that there is a difference, if only one of degree.

I agree that the instruction on possession, as such, was not erroneous. It should not have been given, however, because defendant was not charged with possession and could not have been convicted of it. But defendant does not, and could not because he requested it, complain of the giving of instructions on possession. Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980); Hill v. State, 237 Ga. 523, 525 (3) (228 SE2d 898) (1976); Edwards v. State, 235 Ga. 603, 604 (2) (221 SE2d 28) (1975).

Instructing on possession could conceivably have led the jury to believe they had to find actual possession by Bridges, of which there was scant evidence, and so would have helped him. Even if defendant had shown error, he would also have to show harm, in order to win reversal. Chenault v. State, 234 Ga. 216, 220 (2) (215 SE2d 223) (1975).

If, on the other hand, the jury ignored the possession instruction because they recognized that the indictment charged only “bringing into,” then the charge complained of was superfluous.

Decided May 23, 1990 Rehearing denied June 7, 1990 Rees R. Smith, for appellant. James L. Wiggins, District Attorney, for appellee.