Pennington v. GeorgiaAnnotate this Case
Charles Pennington and Jay Briele were found guilty By jury of possessing with intent to distribute methamphetamine within 1,000 feet of an elementary school. At trial, Pennington and Briele requested that the jury be instructed on an affirmative defense provided in the Georgia Controlled Substances Act, specifically, that the conduct prohibited by OCGA 16-13-32.4 (a) took place entirely within a private residence, that no minors were present in the residence at any time during the commission of the offense, and that the prohibited conduct was not carried on for financial gain. The trial court denied the request and, in denying Pennington’s motion for a new trial, explained that the court refused to instruct the jury on the affirmative defense because Pennington and Briele, neither of whom testified at trial, did not admit doing the act charged, possessing with intent to distribute methamphetamine, and because neither the State nor either defendant presented any evidence that the “active meth lab” in Pennington’s residence was not being used for financial gain. The Court of Appeals affirmed Pennington’s convictions, reasoning that, because he did not admit that he possessed with intent to distribute methamphetamine near a school, he was not entitled to the affirmative defense he requested. Pennington petitioned for certiorari review, asking “What, if anything, must a criminal defendant admit in order to raise an affirmative defense?” The Georgia Supreme Court held a criminal defendant was not required to “admit” anything, in the sense of acknowledging that any particular facts are true, in order to raise an affirmative defense. “To the extent a defendant in raising an affirmative defense accepts for the sake of argument that he committed the act alleged in a charge, the defendant may do so only for the limited purpose of raising the affirmative defense at issue.” Judgement was vacated and the case remanded for further proceedings.