Opinion
A94A2440.
DECIDED JANUARY 30, 1995.
Drug violation. Clarke Superior Court. Before Judge Gaines.
Terry Clyne, for appellant.
Harry N. Gordon, District Attorney, Greg Schwartz, Assistant District Attorney, for appellee.
In the aftermath of a traffic stop, Hardeman was found in possession of marijuana and arrested. She was indicted for possession of marijuana with intent to distribute, OCGA § 16-13-30 (j) (1), and convicted of possession of more than one ounce of marijuana, also OCGA § 16-13-30 (j) (1). In her sole enumeration of error, Hardeman contends the court erred in charging the jury that possession of marijuana is a lesser included offense of possession with intent to distribute.
In her brief and enumeration, Hardeman cites several instances when the court referred to the lesser included offense, but the jury was present only during the references made in the charge.
The court was correct. "[A]s a matter of law the offense of possession of marijuana . . . [is] a lesser included offense of the offense of possession of marijuana with intent to distribute. . . ." Talley v. State, 200 Ga. App. 442, 446 (4) ( 408 S.E.2d 463) (1991).
Hardeman contends that she was nonetheless prejudiced by the use of the term "lesser included offense" because it may have engendered the belief that conviction on a possession charge would result in a lesser penalty. The jury is not concerned with punishment, as Hardeman concedes, and we find nothing in the charge that might have indicated that it should consider the punishment effects of its verdict. The court specifically charged that the jury's only concern was guilt or innocence. The court also charged the jury on the elements of the two crimes. Possession is a lesser included offense simply because it lacks the element of specific intent to distribute, Talley, supra, which the jury by its verdict found wanting. The punishment for such does not affect the elements but is affected by the amount of the substance, not intent.
Judgment affirmed. Andrews and Johnson, JJ., concur.