FINAL C OPY

295 Ga. 406

S14A0513. T HE STA TE v. N ANKER VIS. HUNSTEIN, Justice. This case stem s from Appellee Thomas Nankervis’ prosecuti on fo r metha mphet amine

traffic king pursua

nt to OCG

A § 16-13-31 ( f). After t

he jury returned a guilty verdict on methamphetamine trafficking, the trial court held that the methamp hetam ine tra fficking

statute was unc onstituti onal and sentenced Nankervis for ma nufactu ring a c ontrolle d substanc e pursua nt to the rule of lenity. The Sta

te appe als, and wenow hold tha t the m etham

phetam ine trafficking statute is cons titution al and that the ru le of lenity does not applyin this case . Acc ordingly, we rev erse t he trial c ourt’s ruling, vac ate the judgme nt in part, and remand. On June 15, 2011, a Columbia C ounty grand jury indicte d Nanke rvis for traffic king in metham

phetamine, fa

ilure to mai ntain la

ne, an d violati on of the open container law . Aft er pl eading not guilty, Nankervis file d a motion to dismis s the indic tment

on t he ground th at the sentenc ing provisio ns of the metha mphet amine

traffic king statute , OCGA § 16-13-31 (f) (1), ( g) (1), a nd (g)1 OCGA § 16-13-31 (f) and (g) have since been amended. Se e Ga. L . 2013, p.

222,, § 4. Unle ss otherw ise noted, the provisi ons refer enced h erein are those that were in effect p rior to amendments t hat became effectiv e on July 1, 20 13.

2 Although the

trial j udge used the phrase “manufacturing methamphetamine,” itis clear from the recor

d that the tr

ial judge was ref errin g to m anufactur

ing a “controlled s ubstance ” pursuan t to OCGA § 16-1 3-30 (b). 2 (2), 1 are unconstit utional. After a tria l held on

August 15-17, 2011, a jury found Nankervis guilty on all thr ee co unts in th e indictment. The jury was ch arged on “Traffi cking Methamphetamine,” “Manufa cturing M etham phetam ine,” “Po sse ssion of Methamp hetami ne with Intent t o Distrib ute,” and “Posse ssion of Methamphetamine,” and the jury op ted to find Nankervis guilty of “Traffi cking Methamphetamine.” After the jury’s verdict was pub lished, the tria l court instructed the jury to retu rn a “secondary” verdic t, sta ting: “If you had n ot had the charge before you o f trafficking in met hamphet amine, I nee d for you to return a verdic t as to w

hether or not

you would have found Mr. Nankervis guilty

or not guilt y of the offens e of manufacturing methamphetamine.” 2 After a quick d eliber a tion, the jury

returne d a verdi ct of guilty for “m anufac turing methamphetamine.” The trial court delayed s en tencin g in order t o fully consi der the issues3 The appeal was docketed to the January 2014 term of this Court and submitted

for a dec ision on the br

iefs. 3 raised in Nankervis’ motion to dismiss. On December 19, 2011, th e court issued

an order gra

nting in pa

rt Nankervis’ mo tion to dismiss, holding that OCGA § 16-13-31 (f) and (g) were unco n stitution al bec ause th ey viol ated N ankervi s’ substantive due proc ess and equal protection r ights. The trial court held fu rther that OCGA § 16-13-31 (f) (1), whi ch prohibi ts traff icking methamphetamine, and OCGA § 16-13-30 (b), which prohibits ma nufacturin g a controlled substance, prohibit i dentic al condu ct, a nd there fore, un der therule of l enity, the less severe penalty for manu facturing was ap plicable rather th an the stricter penalty for trafficking . On December 22, 2011, th e State filed a notice of appeal of the trial cou rt’s order

. On March 15, 2012, t

he court sent enced Nanker

vis to ei ght yea

rs of impris onment

for ma nufactu ring a c ontrolle d substanc e pursua nt to O CGA § 16

- 13-30 (b) and (d) , a co ncurren t 12-mont h term for fail ure to m aintain lane, and

a fine of $2 50 for the open cont ainer v iolatio n . The State supplem ented its notice of appeal on March 26, 2012, t o appeal the fina l disposition and sentence. 34 The appli cable versions of OCGA § 16-13-31 (f) and ( g) provided as follow s: (f) Any person who knowingly manufactures m ethamphetamine, amphetamine, or a ny mi xt ure con tai ni ng eit her me thamp h etamine or amphetamine, as descr ibed in Schedule II, in vi olation of t his articl e c omm its the felony offense of trafficking methamphetamine o r amphe tamin e and, upon conviction thereof, shall be punished as follows: (1) If the qua

nt ity o f metham

phetamine, am

phetamine, or a mixture containing e ither subst ance involv ed is less than 200 gra ms, the per so n s hal l b e se nt enc ed t o a ma nd ato ry min imu m ter m o f impri sonme nt of ten years and s hall pay a fine of $200,000.0 0; (2) If the qua

ntity of metha mphet amine , am

phetam ine , or a mixture containing e ither subst ance involv ed is 200 grams or more, but less than 400 grams, the person shall be sentenced to a ma ndatory minim um term of im prisonm ent of 15 y ears and s hall pay a fin e of $300,000.0 0; and ( 3) If the quantity of me thamphetamine, amphetam ine, or a mixture containing e ither subst ance involv ed is 400 gra ms or more, the person shall be senten ced to a manda tory m inimum term of impri sonme nt of 25 y ears and s hall pay a fine of $1 mill ion. (g)(1) Except as providedin paragraph (2) of this subsec tionand notwithsta

nding Code Section 16-13-2, with respect to any person

who is found to have violated this Code sect io n, adjud ication of guilt or imposi tionof sentenc e shall not b e sus pended , probate d, defer red, or withheld prior to serving the mandatory minim um ter m of impris onment prescrib ed by th is Code sec tion. (2) Thedistrict a

ttorney may move t he sentenc ing court to impose a reduce d or

susp ended sentence upon any person wh o is convicted of a violat

ion of this C ode section and who provi des substantial assistanc e in the ide ntificati on, arre st, or con viction of any of his acc omplic es, acc esso ries, coconspira tors, or principals

. Upon good cause s hown, the motion may be filed a

nd heard in camera. The jud

ge hearin g the motion

may impose a reduce d or 4 1. The State argues that the trial cou rt erred in fin ding unco nstitutio nal the metha mphet amine

traffic king stat

ute, O CGA § 16- 13-31 (f) and (g). 4 The trialsuspended sentenceif he finds tha

t the defendant has rendered such substantial assistance.

5 The parties d o not dis pute that the ration al basis t est appli es here. 5 court held that OCGA § 16-13-31 (g) ( 2), which allows fo r a reduced sentence if a defenda ntprovides s ubstanti al assi stance to the St ate, violate d Nanke rvis’ right to substa ntive due process and equa

l protec tion under

the United S tates and Georgia Constitu tions. The trial court c onclude d that all person s conv ic ted under OCGA § 16-13 -31 (f) (1 ) were similarly si tuated, but Nank ervis was treated differently be cause he could no t provid e assistance and theref ore was ineligi ble for a reduce d sente nce under OCGA § 16-13-31 (g) (2). “Unless governmental ac tion infringes upon a fundamental right o r the compl aining

party i s a member of a suspect class, a substa ntive due process or equal protection challenge is examined under the ‘rational b asis’ test.” Favorito

v. Handel , 285 Ga. 795, 796 (1) (684 SE2d 257) (20 09). 5 “Initia lly, t he claimant must establish that he is similarly situ ated to members of the clas s who ar e treated differently from

him. Next, the claimant must establis h that there i s no rational basis for such di fferent treatment.” Harper v. State of Ga. , 292 Ga. 557, 560 (1) (738 SE2 d 584) (2013) ( citation and punc tuation omitte d). “Under t

he6

rational basis test, a court will uphol d the statute if, u nder any conceivabl e set of facts , the classificat

ions drawn in the statute bea r a rational relat

ionship to a legitimate end of gov ernment not pro hibited by th e Constituti on.” Id. at 560-561 (ci tation a

nd punctua

tion omi tted). We question whethe r defend ants who a re co nvicte d of traff icking metha mphet amine

an d p rovide sub stantial assist ance should b e considered similarly situated to th ose defe ndants wh o are c onvicte d of traff icking

me thamp hetam

ine but areunable to providesubstantial as sist ance . Addition ally, we note

that thos e defe ndants wh o provide su bstantial assistance

are not necessarily tr eated diffe rently

beca use thetrial c ourt reta

ins discretion to impose a reduced s entence. OCGA § 16-13 -31 (g) (2 ). However, even assuming that defenda nts convic ted of m etham

phetam ine traffic king who provide

substantial assistance are similarly sit uated and treated differently

than those wh o cannot pro vide assistance, we find tha t there is a rational basis for

doing so: th e legislature intended to reward individuals with

a reduced sentence in ex change for inf ormation that is useful in ass isting law enforcement

officia ls with i dentify ing, ar

resting, or convicting other individuals involved with illegal drugs and shutting down drug networks. Accordingly, w e7

conclud e that OC GA § 16-13- 31 (f) (1), (g) (1), a nd (g) (2) do no t violate Nanker vis’ substantive due process o r equal p rotect ion rights b ecaus e these provisions bear a

rational rela

tionship to a legi tima

te obje ctive o f the governmen t. See U nited States v. To rres , 33 F3d 130, 132 (1 st Cir. 1994) (finding18 USC § 3553 (e), w hich provi ded for a

lower s entenc e base d on a defenda nt’s subs tantial assist ance, did not viol ate e qual prote ction c lause becau se it was rational to rew ard a defendant who gives inf ormation to ass ist the governm ent

in shutting down a drug network); United States v . Musser , 856 F2d 1484, 1487 (11 th Cir. 1988) (same); State v . Beni tez , 395 So2 d 514 (4) (Fla. 1981) (rejecting equal p rotection chall enge to law that allo wedf or reduced sentence if a de fendant

agreed to cooperate

with law enforcem ent authorities to stop drug trafficking); Wheatt v. State , 410 So2d 479 (III) (Ala. C ri m. Ap p. 1982) (s ame). 2. The State conte nds that t he trial court e rred in a pplying t he ruleof lenity in this case. “[T] he rule of lenity come s into pla

y only t o resolve ambiguities that re main ‘ after applyi ng all oth er tools o f statut ory construc tion.’” Higdon v. State , 2 91 Ga. 821, 826 (2) (b) (7 33 SE2d 750) (2012). However, where there is a specific

and a general c riminal statute , the6 The applica ble versio ns of OCGA § 16-13-30 (b ) and (d) pr ovided as f

ollows: (b) Except as authorized by this ar ti cle, it i s unlawfu

l for any person to manufacture, deliver, distribute, dispense, admin ister, s ell, or possess with inten t to dist ribute any con trolled s ubstance

.

. . . 8 rule of lenity is not implica

ted, and “a specific

statute will prev ail over a general statute, absent any indicati on of a contr ary legislative int ent.” Mann v . State , 273 Ga. 366 , 368 (1) (54 1 SE2d 645) (2 001) (punct uation omitte d); see a lso Woods v. State , 279 Ga . 28, 31 (3 ) (608 SE2d 631) (2005) (“Where a crime is penalized by a spe cial l aw, th e gene ral provi sions of the penal c ode are

not applicable.”) (citatio n and punctu ation omitted). Nank ervis was indicted for violating OCGA § 16-13-31 (f) (1), whic h provides that “[a]ny perso n who kno wingly manufactures methamphetamine .

. . com mits t he felo ny offen se of tra fficking metha mphet amine ” and se ts th e punishmentfor such a

n offense a t a ma ndatory minim um of ten yea

rs of impris onment

and a fine of $200, 000, if the quantity of met hamphe tamine is le ss than 200 grams. OCGA § 16-13-30 (b) and (d) ma ke it unlawful to “manufact ure, deliver, distribute, dispense, administer, se ll, or possess with intent to distribute any c ontrolle d substanc e” an d set the punishme

ntat between five and 30 years of im

prisonment. 6(d) Except a s otherwi se provided , any pe rso n who violates subsection

(b) of thi s Code section w ith respec t to a controlled substance in Schedule I orScheduleII shall b e guilty of a felo ny and, upon conviction

thereof, shall be pun ished by impr isonme nt for not le ss than five years nor more than 30 years. Upon convict ion o f a second or subse q uent

offense, he or she shall be imprisoned for not less than ten years nor m ore than 40 year s or life impris onment . The pr ovisions of subsection

(a) o f Cod e Sec tio n 17 -10 -7 s hal l no t ap ply to a sente nce imposed for a sec ond such off ense; provi ded, however, th at th e rema ining provisions of Code Section 17-10-7 shall ap ply f or any subsequent offense. 9 The clear language of th ese statutes demonst rates that OCGA § 16-13-31 (f) is a specific la

w criminaliz ing “trafficking metham phetamine” w

hile OCGA § 16- 13-30 (b) criminalizes the manuf acturing of

any “controll ed substance.” “Further more, the most reasonable interpretation of the legisla tive intent in enact ing OCGA § 16-13-31 (f) (1) was to supplant the gen eral pu

nishme nt provision of OCGA § 16-13-30 (b) w ith a spe cific and pote ntially more h arsh punishment provision

for [traffickin g] methamphetamine.” Richa rds v. State , 290 Ga. A pp. 360, 36 3 (2) (659 SE 2d 651) (2008) ( physical precedent only); see also Basse tt v. Lemac ks , 258 Ga. 367, 370 (2 ) (370 SE2 d 146) (1 988) (pen alties for traffic king under O CGA § 16- 13-31 are “gre ater” than those provided in OCGA§ 16-13- 30 (b)). Thus, be cause a more specif ic law applie s to traf

ficking met hamphetamine, the gen eral provisions of O CGA § 16- 13-30 (b) fo r10

manufacturing

controlled s ubstances do not apply. See Woods , 279 Ga. a t 31. Therebeing no uncertaint y as to which statute applie s, the r

ule of lenity is n ot implicated. See Richa

rds , 290 Ga. App. at 36 3. 3. Having f

ound that O CGA § 16- 13-31 (f) is not unconst itut ional a nd that the rule of l enity d oes not a pply, w e must

now determinewhethe r therewas sufficie ntevidence to support

the jury ’s verdic t of guilt u nder OC GA § 16-13- 31 (f). Viewed in the ligh t most favorable to that verdict, the ev idence adduced at trial establish ed as follows. In the early morning h ours of Ap ril 26, 201 1, a law enforcement o fficer

stopped N ankervi s f

o r errat ic drivi ng behavi or and weaving across travel lanes. Du ring the sto p, officers no ticed an open beer can

on the center console

of the va n, and upon

questioning, Nankervis admitted that there was a ma

rijuana cigarette in the van. Of

ficers proceeded to search the van and found coffee filters, tubing, a

funnel, a bottle with tubing coming out of it,

a bottle c ontaining

a liquid substanc e, a c an of Col ema n fuel, drain c leane r, muriatic acid, a cold p ack c ont aining am monium nitrate , a co ffee gr

inder, lithium batteries, and rubber gloves. A narcotics investigator te sti fied at tr ial that all of these items could be used together to produce metha mphet amine

and

were consiste

ntwith a metham

phetam ine lab. Spe cific ally, he test ified th at the7 Becausewe have f ound that the

traffic king in m etham

phetam ine statute applies in this case

and is constitution al and bec ause the evid ence s uppo rts th e jury’s finding of guilt for metham

phetamine trafficking, any error in the trial court’ s request for a second ary verdict on “manufactu ring methamphetamine” was harmless. 11 bottle found

in Nankervis ’ van at the time contained a liqu id substan ce that was i n the p rocess of bein g converted in to methamphetamine. Additio nally, investig a tors foun d scales, which are cons istent with s elling dru gs, as well as syringe s, a spoon, and stra ws, com monly used for ingesting drugs. Investig ators also found a bag containing less than onegram o f methamphetamine. We find that the evi dencewas s ufficient to ena ble a ra tional t rier of f act to conclud e beyond a rea sonabledoubt that Nanker vis was g uilty of trafficking in methamphetamine, failure to mainta in lane, and

violation o f the open con tainer law. Jackson v. Virginia , 443 U. S. 307 (99 SCt 2781, 61 LE2d 560 ) (1979). 7 For the fore going r ea sons, we conclud e that the tria

l court erred by sentenc ing Nanker

vis for m anufac turing a

controll ed substa

nce ra ther tha n for traffic king metha

mphet amine . Acc ordingly, we rev erse t he trial court’s r

uling granting in part Nankervis’ motion to dismis s, vac ate the judgme ntand sentence

on Count 1, a

nd rem and with

d irect ion to ente r judgment on Count 1 for traffic king methamphetamine and to sentence Na nkervis a ccordin gly. In12

addition, beca

use thetri al court improp erly imposed a fine fo r the open container violati on that e xceed s the st atutory cap, see OCGA § 40 -6-253 ( c) (settin g maxim

um fine at $200), we al so vaca

te the sent enc e on Count 3 and remand for resenten cing on that co unt. Judgme ntaffirm ed in pa rt and va cate d in part , and ca se rem anded for entry o f judgment and se ntenci ng. All t he Justic es concur.

Decid ed June 3 0, 2014. OCGA§ 16-13-31; constitutional questio n. Columbia Superior Court. Before Judge Rop er. Ashley Wright, Dist rict Attorney, Charl es R. Sheppard , Joshua B. Sm ith, Assistant Dis trict Attorn eys , for appellant. Fleming & Nel son, Kurt

A. Worth ington , for appellee.