GA Code § 16-13-32.5 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 13 - Controlled Substances|Article 2 - Regulation of Controlled Substances|Part 1 - Schedules, Offenses, and Penalties|§ 16-13-32.5. Manufacturing, Distributing, Dispensing, or Possessing Controlled Substance, Marijuana, or Counterfeit Substance Near Park or Housing Project; Nonmerger of Offenses; Evidence of Location and Boundaries; Posting; Affirmative Defenses

  It shall be unlawful for any person to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on, or within 1,000 feet of any real property which has been dedicated and set apart by the governing authority of any municipality, county, state authority, or the state for use as a park, playground, recreation center, or for any other recreation purposes, unless the manufacture, distribution, or dispensing is otherwise allowed by law.   It shall be unlawful for any person to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on, or within 1,000 feet of any real property of any publicly owned or publicly operated housing project, unless the manufacture, distribution, or dispensing is otherwise allowed by law.For the purposes of this Code section, the term "housing project" means any facilities under the jurisdiction of a housing authority which constitute single or multifamily dwelling units occupied by low and moderate-income families pursuant to Chapter 3 of Title 8.   Any person who violates or conspires to violate subsection (a) or (b) of this Code section shall be guilty of a felony and upon conviction shall receive the following punishment:   Upon a first conviction, imprisonment for not more than 20 years or a fine of not more than $20,000.00, or both; or   Upon a second or subsequent conviction, imprisonment for not less than five years nor more than 40 years or a fine of not more than $40,000.00, or both. It shall be mandatory for the court to impose a minimum sentence of five years which may not be suspended unless otherwise provided by law.  A sentence imposed under this Code section shall be served consecutively to any other sentence imposed.      A conviction arising under this Code section shall not merge with a conviction arising under any other provision of this article.   In a prosecution under this Code section, a map produced or reproduced by any municipal or county agency or department for the purpose of depicting the location and boundaries of the area on or within 1,000 feet of the real property of any publicly owned or publicly operated housing project or the real property set apart for use as a park, playground, recreation center, or for any other recreation purposes, or a true copy of the map, shall, if certified as a true copy by the custodian of the record, be admissible and shall constitute prima-facie evidence of the location and boundaries of the area, if the governing body of the municipality or county has approved the map as an official record of the location and boundaries of the area.A map approved under this Code section may be revised from time to time by the governing body of the municipality or county.The original of every map approved or revised under this subsection or a true copy of such original map shall be filed with the municipality or county and shall be maintained as an official record of the municipality or county.This subsection shall not preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense.This subsection shall not preclude the use or admissibility of a map or diagram other than the one which has been approved by the municipality or county.   The governing authority of a municipality or county may adopt regulations requiring the posting of signs designating the areas within 1,000 feet of any lands or buildings set apart for use as parks, playgrounds, recreation centers, or any other recreation purposes as "Drug-free Recreation Zones" and designating the areas within 1,000 feet of the real property of any publicly owned or publicly operated housing project as "Drug-free Residential Zones."   It is an affirmative defense to prosecution for a violation of this Code section that the prohibited conduct took place entirely within a private residence, that no person 17 years of age or younger was present in such private residence at any time during the commission of the offense, and that the prohibited conduct was not carried on for purposes of financial gain. Nothing in this subsection shall be construed to establish an affirmative defense with respect to any offense under this chapter other than the offense provided for in subsections (a) and (b) of this Code section.     (Code 1981, §16-13-32.5, enacted by Ga. L. 1992, p. 2043, § 1; Ga. L. 2000, p. 1215, § 1; Ga. L. 2008, p. 600, § 1/SB 453.)   Law reviews.   - For annual survey article discussing developments in criminal law, see 51 Mercer L. Rev. 209 (1999). For note on 1992 enactment of this Code section, see 9 Ga. St. U.L. Rev. 212 (1992).   JUDICIAL DECISIONS    Construed with O.C.G.A. § 16-13-30. - Convictions for selling cocaine (O.C.G.A. § 16-13-30) and selling cocaine within 1000 feet of a public housing project (O.C.G.A. § 16-13-32.5) did not merge because the latter statute contains a specific non-merger provision and the intent thereof is simply to increase the punishment for violating both statutes. Harper v. State, 213 Ga. App. 611, 445 S.E.2d 300 (1994).    Defendant's convictions for possession of cocaine with intent to distribute and possession of a controlled substance within 1,000 feet of a housing project, in violation of O.C.G.A. §§ 16-13-30(b) and § 16-13-32.5, were based on sufficient evidence after the state proved by circumstantial evidence pursuant to former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6) that the defendant had been walking back and forth to an overturned bucket when people approached from the street in what appeared to be drug transactions, and the drugs were found under the bucket; there was evidence that the amount of drugs recovered were more than one would use for personal use, such that the amount indicated an intent to distribute, and there was also evidence indicating the proximity of the bucket to a nearby public housing complex. Reason v. State, 283 Ga. App. 608, 642 S.E.2d 236 (2007).   Proof of violation.    - When the prosecution did not employ the statutorily authorized method to establish prima facie the location and boundaries of any housing projects, but relied on the testimony of an undercover officer that a sale of crack cocaine took place near "numerous red brick buildings located around a common, grassy area" that "we just knew that it was a - it was city - it was public - it was city owned", such evidence was not sufficient to support a conviction for a violation of O.C.G.A. § 16-13-32.5. Johnson v. State, 214 Ga. App. 77, 447 S.E.2d 74 (1994).    Facts required to be established by O.C.G.A. § 16-13-32.5 could be proved by the testimony of police officers familiar with the area and expressly assigned to patrol public housing areas. Menefee v. State, 226 Ga. App. 725, 487 S.E.2d 489 (1997).    Trial court was not authorized to find the defendant intended to distribute the drugs since the state produced no evidence that the defendant had scales, guns, cash, drug packaging materials, or a large quantity of marijuana, and did not introduce any evidence of prior drug sales by the defendant, or any testimony that the defendant was observed selling or attempting to sell drugs. Clark v. State, 245 Ga. App. 267, 537 S.E.2d 742 (2000).    Trial court erred in convicting the defendant of selling cocaine within 1,000 feet of a housing project because there was no probative evidence that the cocaine sale took place within 1,000 feet of a public housing project property as required by O.C.G.A. § 16-13-32.5(b) since the prosecution did not rely on the authorized method under § 16-13-32.5(e) of using a map to establish that the cocaine sale occurred within 1,000 feet of a public housing project but relied on the testimony of the state's witnesses to prove the public housing element of the offense; the only evidence that the apartment complex where the sale took place was occupied by low and moderate-income families was the testimony of an officer who was a member of the narcotics task force involved in the defendant's arrest, but the officer admitted on cross-examination that the officer only knew that because that was what the officer had been told. Quarterman v. State, 305 Ga. App. 686, 700 S.E.2d 674 (2010).   No fatal variance between indictment and proof.    - Based on evidence that the defendant's drug transactions occurred "straight across" the street from a housing authority property and that the distance between the store and the housing project was 111 feet, any variance between the indictment and the proof at trial did not misinform or mislead the defendant so as to impair the defendant's ability to prepare a defense on charges that the defendant distributed cocaine within 1,000 feet of a housing project in violation of O.C.G.A. § 16-13-32.5(b). Williams v. State, 332 Ga. App. 546, 774 S.E.2d 126 (2015).   Evidence to support eviction from public housing.    - There was ample evidence from which a jury could find that a housing authority properly evicted a tenant from a public housing complex for the tenant's child's criminal activity as the child was arrested for violating O.C.G.A. § 16-13-32.5 after the child flagged down two undercover police officers and told them that the child could get the officers marijuana or crack cocaine from the apartments, which was consistent with the actions of a drug runner; that the child was not charged under that statute was irrelevant, as the lease allowed for termination for drug-related criminal activity without an arrest or conviction, and an attempted drug transaction, interrupted by the police, sufficed to show that the child had engaged in drug-related criminal activity by the required preponderance of the evidence, even though drugs were not found on the child when arrested. Martinez v. Hous. Auth., 264 Ga. App. 282, 590 S.E.2d 245 (2003).   Failure to prove role of public housing authority.    - Evidence was not sufficient to support convictions for distributing cocaine within 1,000 feet of a public housing project because the state failed to offer any evidence establishing that the apartment complex where the sale occurred was owned or operated by a public housing authority. Cooper v. State, 324 Ga. App. 451, 751 S.E.2d 102 (2013).   Evidence showed substance was cocaine.    - Defendant's claim that the evidence was insufficient to support the defendant's convictions because the state relied on hearsay testimony of a forensic scientist who did not personally conduct the chemical tests failed because, even assuming the testimony was inadmissible, the state submitted sufficient evidence, including testimony from the police, the informant, and the defendant, establishing that the drugs recovered, with one exception, constituted cocaine. Cooper v. State, 324 Ga. App. 451, 751 S.E.2d 102 (2013).   Evidence sufficient for conviction.    - See Tate v. State, 230 Ga. App. 186, 495 S.E.2d 658 (1998); Woods v. State, 232 Ga. App. 367, 501 S.E.2d 832 (1998); Smith v. State, 291 Ga. App. 353, 662 S.E.2d 176 (2008).    Construed most favorably to the verdict, the evidence that defendant sold cocaine to undercover officers was sufficient to allow a rational jury to find defendant guilty of selling a controlled substance, selling a controlled substance within 1,000 feet of a public housing project, and resisting arrest. Mikell v. State, 231 Ga. App. 85, 498 S.E.2d 531 (1998).    Evidence supported the defendant's conviction under O.C.G.A. § 16-13-32.5 after the chief construction inspector for the housing authority testified as to the correctness and accuracy of a map showing the public housing project near where the sale occurred, and which showed that a part of the project was within 20 feet of where the sale occurred. McKay v. State, 234 Ga. App. 556, 507 S.E.2d 484 (1998).    Evidence was sufficient to convict the defendant as there was testimony that the defendant's actions took place within 1,000 feet of the city-owned housing project and evidence that the amount of money found on the defendant's person, the specific denominations of currency, and the amount and specific packaging of the cocaine were all consistent with the intention to distribute cocaine. Haywood v. State, 248 Ga. App. 210, 546 S.E.2d 325 (2001).    Evidence was sufficient to support the defendant's conviction for distribution of a controlled substance within 1,000 feet of a public housing project as the evidence showed that the defendant was selling cocaine and that the sale took place less than 1,000 feet from a housing project. Dixon v. State, 252 Ga. App. 385, 556 S.E.2d 480 (2001).    When a police officer set up surveillance of an area located within 1,000 feet of an elementary school and 1,000 feet of a public housing project using a video camera, observed the defendant sell cocaine or marijuana in five transactions, and described the buyers to other police officers who apprehended the buyers and found the buyers in possession of the drugs which the defendant had sold the buyers, the videotape of the transactions and the testimony of the observing police officer along with the laboratory evidence regarding the drugs that were recovered from the various buyers was sufficient to sustain defendant's convictions under the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., on five counts of selling a controlled substance and additional counts of selling the drugs within 1,000 feet of a school and selling the drugs within 1,000 feet of public housing. Robinson v. State, 259 Ga. App. 595, 578 S.E.2d 235 (2003).    Accomplice's testimony combined with a videotape of the defendant in the front seat of a car while talking to a confidential police informant during a drug buy was sufficient corroboration to justify the defendant's convictions for selling cocaine within 1,000 feet of a housing project. Etchison v. State, 266 Ga. App. 528, 597 S.E.2d 583 (2004).    Because the evidence supporting the defendant's convictions revealed that the defendant was twice caught on tape selling crack cocaine to confidential informants, and a police officer testified that the location of one of the sales was within 200 to 300 feet of a public housing project the defendant's convictions for selling cocaine and of distributing cocaine within 1,000 feet of a housing project and 1,000 feet of a school were upheld; thus, the defendant was not entitled to a directed verdict of acquittal. Banks v. State, 270 Ga. App. 221, 606 S.E.2d 34 (2004).    Defendant was not entitled to a directed verdict of acquittal under O.C.G.A. § 17-9-1(a) on a charge of distributing cocaine within 1,000 feet of a public housing project in violation of O.C.G.A. § 16-13-32.5(b) because another participant in the drug transaction testified it occurred at the "Atlanta Street Apartments", and an officer familiar with the area testified that the "Atlanta Street Apartments" were owned by a housing authority and people of lower income lived there, the evidence was sufficient to show that the transaction occurred within 1,000 feet of a housing project. Barnett v. State, 276 Ga. App. 238, 623 S.E.2d 136 (2005).    Evidence that when a buyer went to the defendant's residence, the defendant had cocaine, which defendant then sold to the buyer, was sufficient to prove the elements of possession with intent to distribute for purposes of finding violations of O.C.G.A. §§ 16-13-32.4(a) and16-13-32.5(a). Smith v. State, 278 Ga. App. 315, 628 S.E.2d 722 (2006).    As the evidence was sufficient to prove the defendant possessed cocaine with intent to distribute, the testimony of police officers that the defendant's actions took place within 1,000 feet of a housing project was sufficient to convict the defendant of violating O.C.G.A. § 16-13-32.5(b). Hamilton v. State, 293 Ga. App. 297, 666 S.E.2d 630 (2008).    Evidence was sufficient to show that defendant sold cocaine within 1,000 feet of a public housing project in violation of O.C.G.A. § 16-13-32.5(b) because the transaction occurred behind an apartment building, which was owned by a city housing authority to provide housing for low to moderate income families. Henry v. State, 301 Ga. App. 723, 688 S.E.2d 412 (2009).    Evidence was sufficient to find the defendant guilty of possession of marijuana with intent to distribute, O.C.G.A. § 16-13-30(j)(1), and possession of marijuana with intent to distribute within 1,000 feet of a housing project, O.C.G.A. § 16-13-32.5(b), because it appeared that the jury accepted that version of the events most unfavorable to the defendant after hearing all of the evidence and resolving the credibility of all of the witnesses, and the jury was solely authorized to make such determinations. Bass v. State, 309 Ga. App. 601, 710 S.E.2d 818 (2011).    Evidence was sufficient to sustain a defendant's conviction for possession of a controlled substance with intent to distribute within 1,000 feet of a public housing project as evidence that the public housing complex where drugs were found in the apartment of the defendant's girlfriend was under the jurisdiction of a housing authority, pursuant to O.C.G.A. §§ 8-3-1 and8-3-2, was twice presented at trial, the evidence showed that the location consisted of dwelling units, and that these dwelling units were occupied by low and moderate income families. Robinson v. State, 314 Ga. App. 545, 724 S.E.2d 846 (2012).    Officer's testimony regarding the location of parks, schools, and public housing in the area, the distance of which was confirmed through use of a global positioning system, supported the defendant's convictions for possession of marijuana with the intent to distribute within 1,000 feet of public housing, within 1,000 feet of a state park, and within 1,000 feet of a school. Evans v. State, 318 Ga. App. 706, 734 S.E.2d 527 (2012).    Appellate court refused to disturb the jury's verdict convicting the defendant of possession of drugs with the intent to distribute because after hearing the evidence and having the opportunity to judge the credibility of the witnesses, the jury properly concluded that the only reasonable hypothesis was that the defendant possessed the drugs found hidden in the kitchen, despite the defendant's argument that others had equal access. King v. State, 325 Ga. App. 777, 755 S.E.2d 22 (2014).   Insufficient evidence to support conviction.    - Conviction for selling cocaine within 1,000 feet of a public housing project was reversed on appeal because insufficient evidence existed to prove that the purported housing project was under the jurisdiction of the local housing authority and housed low to moderate income families; the testimony of the local municipality's chief of police as to the measurement was insufficient without any evidence that the purported housing project was, in fact, under the jurisdiction of the local housing authority. Collins v. State, 278 Ga. App. 103, 628 S.E.2d 148 (2006).    While an investigator testified that the defendant sold cocaine to an officer less than 1,000 feet from a government housing development, the investigator did not testify that the development was the property of a municipal housing authority, or that it was occupied by low and moderate-income families. Therefore, the evidence was insufficient to show that the defendant possessed cocaine within 1,000 feet of a housing project in violation of O.C.G.A. § 16-13-32.5. Mahone v. State, 296 Ga. App. 373, 674 S.E.2d 411 (2009).    Evidence was insufficient to convict the defendant of drug trafficking within 1,000 feet of public housing in violation of O.C.G.A. § 16-13-32.5(b) because the state failed to establish that the defendant's residence, which was where the offense occurred, was within 1,000 feet of a publicly owned and operated housing project; the state's witnesses testified that the defendant's residence was located in a housing project, but there was no evidence establishing that the housing project was publicly owned or operated, and there was no testimony that the housing project was occupied by low and moderate-income families. Williams v. State, 303 Ga. App. 222, 692 S.E.2d 820 (2010).    Codefendant's convictions for possession of cocaine with intent to distribute, O.C.G.A. § 16-13-30(b), and possession with intent to distribute a controlled substance within 1,000 feet of a housing project, O.C.G.A. § 16-13-32.5(b), was unsupportable as a matter of law, and the trial court erred by denying the codefendant's motion for a directed verdict of acquittal because the circumstantial evidence and the reasonable inferences derived therefrom were insufficient to connect the codefendant to the cocaine, which was found in an upstairs bedroom occupied by codefendants; no evidence was introduced to show that the codefendant resided in the apartment where the cocaine was found, which could authorize an inference that the codefendant possessed the property therein. Jackson v. State, 306 Ga. App. 33, 701 S.E.2d 481 (2010).   Instruction cured reading of wrong indictment.    - Because the state presented sufficient evidence showing the defendant's involvement in the sale of cocaine and the sale of cocaine within 1,000 feet of public housing project as party to the crimes, and because the judge's instruction and explanation after reading the wrong indictment to the jury at trial cured any error, the defendant's convictions were upheld on appeal, and a mistrial based on the latter was properly denied; moreover, the defendant was properly denied a new trial. Walker v. State, 290 Ga. App. 749, 660 S.E.2d 844 (2008), cert. dismissed, No. S08C1701, 2008 Ga. LEXIS 776 (Ga. 2008).   Challenge to sufficiency of indictment.    - Defendant waived appellate review of defendant's challenge to the indictment when the defendant claimed that the indictment charging the defendant with selling marijuana within 1,000 feet of a housing project failed to allege a violation of O.C.G.A. § 16-13-32.5, which makes it unlawful only to "manufacture, distribute, dispense, or possess with intent to distribute" marijuana at such location, but the defendant failed to object to the indictment in any manner before or during trial, and the defendant did not move to arrest the judgment after the defendant's conviction. McKay v. State, 234 Ga. App. 556, 507 S.E.2d 484 (1998).    Cited in Beard v. State, 318 Ga. App. 128, 733 S.E.2d 426 (2012).   RESEARCH REFERENCES   ALR.   - Validity, construction, and application of state statutes enhancing penalty for sale or possession of controlled substances within specified distance of playgrounds, 23 A.L.R.6th 679.   What constitutes "aggravated felony" for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C.A. § 1227(a)(2)(A)(iii)) - marijuana offenses under 8 U.S.C.A. § 1101(a)(43)(B), 76 A.L.R. Fed. 2d 1.   What constitutes "aggravated felony" for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C.A. § 1227(a)(2)(A)(iii)) - cocaine and crack cocaine offenses under 8 U.S.C.A. § 1101(a)(43)(B), 76 A.L.R. Fed. 2d 61.   What constitutes "aggravated felony" for which alien can be deported or removed under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C.A. § 1227(a)(2)(A)(iii)) - heroin offenses under 8 U.S.C.A. § 1101(a)(43)(B), 78 A.L.R. Fed. 2d 133.   What constitutes "aggravated felony" for which aliens can be deported or removed under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C.A. § 1227(a)(2)(A)(iii)) - illicit methamphetamine offenses under 8 U.S.C.A. § 1101(a)(43)(B), 78 A.L.R. Fed. 2d 151.   What constitutes "aggravated felony" for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C.A. § 1227(a)(2)(A)(iii)) - Miscellaneous or unspecified narcotics offenses under 8 U.S.C.A. § 1101(a)(43)(B), 79 A.L.R. Fed. 2d 335.