NAHID v. STATE (2005)

A jury found Houshang Nahid guilty of trafficking in opium.   Nahid appeals, challenging the constitutionality of OCGA § 16-13-31.   We affirm.

Nahid was convicted pursuant to OCGA § 16-13-31(b), which provides, in pertinent part, that “[a]ny person who knowingly ․ has possession of 4 grams or more of ․ opium ․ commits the felony offense of trafficking in illegal drugs.”   Following his conviction-and in connection with his motion for new trial-Nahid questioned the constitutionality of this provision for the first time.   Specifically, he argued that the statute impermissibly permits a trafficking conviction based upon mere possession.

The trial court rejected Nahid's challenge, and Nahid appealed to the Supreme Court of Georgia, citing that Court's authority to resolve constitutional questions.   The Supreme Court, however, concluded that Nahid had waived his constitutional claim by failing to raise it until the motion for new trial.   It then transferred Nahid's appeal to this Court.

1. In two enumerations of error, Nahid explicitly challenges the constitutionality of OCGA § 16-13-31, asserting that the statute violates the constitutions of Georgia and the United States.   But the Supreme Court found that Nahid failed to preserve this challenge below, and “ ‘the transfer of [Nahid's appeal] by the Supreme Court to this Court is a final determination that no constitutional question was in fact properly raised.’ ” ¹  Accordingly, these enumerations of error present no basis for reversal.²

 2. Through two other enumerations of error, Nahid claims that OCGA § 16-13-31 is contrary to Georgia common law and improperly “estops” a defendant from raising the defense of mere possession.   To the extent these arguments are constitutionally based, Nahid has waived them for the reasons discussed in Division 1.   Moreover, to the extent such arguments derive from nonconstitutional principles, they do not support reversal.   By enacting OCGA § 16-13-31(b), the legislature clearly authorized a trafficking conviction based upon knowing possession of four or more grams of opium.   Although Nahid disagrees that such possession establishes “trafficking,” we cannot ignore the clear statutory language governing this case.³

 3. Finally, Nahid urges us to “abolish or at least modif[y]” the Supreme Court of Georgia's determination in Hardeman v. State⁴ that constitutional challenges must be raised before the jury returns a verdict.   This Court, however, has no authority to abolish or modify Supreme Court decisions.⁵  On the contrary, those decisions bind us.⁶  It follows that Nahid's conviction must be affirmed.

Judgment affirmed.

FOOTNOTES

1.   Hughes v. State, 266 Ga.App. 652, 654(2), 598 S.E.2d 43 (2004).

2.   See Hardeman v. State, 272 Ga. 361, 362, 529 S.E.2d 368 (2000) (defendant who fails to raise a constitutional challenge until the motion for new trial “is barred from raising that issue on appeal”).

3.   See Jackson v. State, 214 Ga.App. 726, 727, 448 S.E.2d 761 (1994).

4.   Supra.

5.   See Seymour v. State, 262 Ga.App. 823, 824(1), 586 S.E.2d 713 (2003).

6.   Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI.

RUFFIN, Chief Judge.

JOHNSON, P.J., and BARNES, J., concur.