2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 13 - Controlled Substances
Article 2 - Regulation of Controlled Substances
Part 1 - Schedules, Offenses, and Penalties
§ 16-13-32.3. Use of Communication Facility in Committing or Facilitating Commission of Act Which Constitutes Felony Under Chapter; Penalty

1. It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under this chapter. Each separate use of a communication facility shall be a separate offense under this Code section. For purposes of this Code section, the term "communication facility" means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, computer or computer network, and all other means of communication.
2. Any person who violates subsection (a) of this Code section shall be punished by a fine of not more than $30,000.00 or by imprisonment for not less than one nor more than four years, or both.

(Code 1981, §16-13-32.3, enacted by Ga. L. 1982, p. 2359, § 1; Ga. L. 1995, p. 574, § 1.)

- For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 130 (1995).

JUDICIAL DECISIONS

Participation in later drug sale irrelevant to charge under statute.

- When a defendant was charged with using a communication facility (telephone) to facilitate a sale of cocaine, it was immaterial to guilt under O.C.G.A. § 16-13-32.3 that the defendant did not participate in the subsequent sale of cocaine that the defendant had initially facilitated; the telephone call in which the defendant participated clearly aided in the sale of the cocaine. Thus, the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offense charged beyond a reasonable doubt. Hunt v. State, 196 Ga. App. 694, 396 S.E.2d 802 (1990).

Use of a telephone by defendant to arrange with another to pick up packages of drugs and deliver them to defendant's apartment was sufficient evidence that defendant used a communication device to obtain possession of more than one ounce of marijuana. Russell v. State, 243 Ga. App. 378, 532 S.E.2d 137 (2000).

- Because the defendant delivered cocaine to an informant and used a pager to aid in the cocaine's distribution, the evidence was sufficient to find the defendant guilty of distributing cocaine and using a communication facility to facilitate a violation of the Georgia Controlled Substance Act, specifically violations of O.C.G.A. §§ 16-13-21(11) and16-13-32.3(a). Capers v. State, 273 Ga. App. 427, 615 S.E.2d 126 (2005).

- State failed to prove venue on a count for unlawful use of a communication facility; the indictment alleged that the defendant had used a cellular telephone in Long County, but the state had not set forth any evidence that the defendant used the telephone there. Maldonado v. State, 284 Ga. App. 26, 643 S.E.2d 316 (2007).

With regard to a defendant's trial on various drug charges, the defendant's convictions on three counts of using a communication device to commit or facilitate the commission of a designated felony, in violation of O.C.G.A. § 16-13-32.3, were reversed because the state failed to prove venue since the state submitted no proof that three related phone calls made on September 23, 24, and 25, 2003, were made in Newton County, Georgia, wherein prosecution was sought. Rogers v. State, 298 Ga. App. 895, 681 S.E.2d 693 (2009).

- Transcripts of monitored telephone conversations between the defendant and other individuals named in the indictment were insufficient to support defendant's convictions of using a communications facility to commit, cause, or facilitate a violation of the Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., since the state introduced no evidence tending to suggest that any overt act was ever carried out in furtherance of the drug transaction which had been discussed. Kelleher v. State, 185 Ga. App. 774, 365 S.E.2d 889 (1988).

When there was no direct evidence the defendant made a telephone call to arrange the delivery of cocaine as charged in the indictment, the circumstantial evidence was held to be insufficient as a matter of law to exclude other reasonable inferences. Britt v. State, 202 Ga. App. 689, 415 S.E.2d 492 (1992).

- Because: (1) the defendant failed to sufficiently prove an entrapment defense, and hence, the need for disclosure of an informant's identity; (2) no error resulted in refusing to strike a juror for cause; and (3) the trial court's entrapment instruction was legally correct and did not mislead the jury, the defendant's convictions for trafficking in cocaine, in violation of O.C.G.A. § 16-13-31(a), possession of cocaine with intent to distribute, contrary to O.C.G.A. § 16-13-30(b), and two counts of use of communication facilities in committing a felony drug offense, under O.C.G.A. § 16-13-32.3, were affirmed on appeal. Griffiths v. State, 283 Ga. App. 176, 641 S.E.2d 169 (2006).

Recorded conversations between an informant and a defendant proved the defendant's violation of O.C.G.A. § 16-13-32.3, the use of communication facility in committing a felony. There was circumstantial evidence that the defendant was the participant in the phone calls, and the phone calls set up drug buys between the informant and the defendant. Kimble v. State, 301 Ga. App. 237, 687 S.E.2d 242 (2009).

Cited in Brannon v. State, 243 Ga. App. 28, 530 S.E.2d 761 (2000); Thomas v. State, 299 Ga. App. 235, 682 S.E.2d 325 (2009); State v. Harrell, 323 Ga. App. 56, 744 S.E.2d 867 (2013); Syms v. State, 331 Ga. App. 225, 770 S.E.2d 305 (2015).