Chews v. State ( 1988 )

Pope, Judge,

concurring specially.

Although I agree that the charge as given requires reversal in this case, I am compelled nevertheless by what I perceive as continued confusion in this area to elaborate on why the erroneous charge necessitated the reversal here, in hopes of avoiding this problem in future cases.

Decided June 22, 1988. Richard E. Thomas, Harvey D. Harkness, for appellant.

In Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988) our Supreme Court reiterated the long established maxim that evidence of actual possession is necessary to uphold a conviction of trafficking in cocaine, and held that a charge to the effect that a conviction may be based on either actual or constructive possession constitutes reversible error. Such was the error also committed here. Note, however, that even if the trial court gives a charge on the definition of constructive possession, the conviction may be upheld so long as the court correctly charges that a conviction can be had only upon a showing of actual possession. Raines v. State, 186 Ga. App. 239 (4b) (366 SE2d 841) (1988). However, inasmuch as the charge on the definition of constructive possession is mere surplusage, the better practice would be to eliminate it entirely in cases involving actual possession offenses.

It does not follow, however, that only the perpetrator who has physical custody of illegal contraband can be convicted of the offense of trafficking. Rather, as with other crimes, a conviction may also be had based upon either OCGA § 16-2-20 (party to a crime) or a theory of conspiracy. See, e.g., Thomas v. State, 255 Ga. 38 (2) (334 SE2d 675) (1985); Heath v. State, 186 Ga. App. 655 (1) (368 SE2d 346) (1988); Raines, supra; Ceaser v. State, 184 Ga. App. 599 (362 SE2d 156) (1987); Pryor v. State, 179 Ga. App. 293 (1) (346 SE2d 104) (1986); Ramsey v. State, 175 Ga. Ap. 97 (7) (332 SE2d 390) (1985); Evans v. State, 167 Ga. App. 396 (1) (306 SE2d 691) (1983). Clearly, in the present case the evidence authorized a conviction under either of these theories. Indeed, the record shows that in addition to instructing the jury on the substantive offense of conspiracy, with which defendant was also charged, the trial court also charged the jury that defendant could be convicted as a party to a crime, and correctly charged the jury in the language contained in OCGA § 16-2-20 and § 16-2-21. However, because the trial court also erroneously charged the jury that defendant could be convicted based upon a finding of either actual or constructive possession, we have no way of determining which theory formed the basis of the jury’s decision. Hence, I reluctantly agree that reversal is required.

I am authorized to state that Judge Benham joins in this special concurrence.

John C. Pridgen, District Attorney, for appellee.