State v. Marquavius Meadows

Opinion

FIRST DIVISION BARNES, P. J., GOBEIL and PIPKIN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

September 10, 2024

In the Court of Appeals of Georgia A24A1083. THE STATE v. MEADOWS.

GOBEIL, Judge.

The State charged Marquavius Meadows by accusation with carrying a weapon

without a valid license and possession of marijuana less than one ounce. Meadows

filed a general/special demurrer, and on January 5, 2024, the trial court dismissed the

weapons charge. The State now appeals, arguing that the trial court erred in finding

that Meadows was a lawful weapons carrier despite having pending felony warrants

for his arrest, as well as pending misdemeanor charges that had been transferred from

state court to superior court to be tried as felonies. For the reasons that follow, we

affirm. “We review de novo the trial court’s ruling on a general demurrer.” Stapleton

v. State, 362 Ga. App. 740, 742 (1) (869 SE2d 83) (2021). On February 2, 2022,

Meadows was charged by accusation with carrying a weapon without a valid license,

in violation of the version of OCGA § 16-11-126 then in effect (Count 1);1 and

possession of less than one ounce of marijuana, in violation of OCGA § 16-13-2

(Count 2). As part of his consolidated pretrial motions and demand for discovery,

Meadows filed a general/special demurrer.

At the October 9, 2023 hearing, Meadows argued that Count 1 was due to be

dismissed because at the time of his arrest for the above-described charges he had

active arrest warrants “that had not yet been effectuated . . . so he had not actually

been arrested for any felonies.” Because he did not have any felony convictions on his

record nor was he serving a probated sentence as part of a first offender adjudication,

Meadows maintained that he was a lawful carrier and he could not be guilty of having

committed the crime as alleged in Count 1. The State countered that although a

1 OCGA § 16-11-126 (h) (1) (2017) previously provided that: “No person shall carry a weapon without a valid weapons carry license” unless he or she met certain exceptions not applicable to this case. 2 permit or license to carry is no longer required under recent changes to Georgia law,2

OCGA § 16-11-126 (g) (1) still requires that a person possessing a weapon must be a

lawful carrier of such a weapon. The State represented to the trial court that at the

time of his arrest, Meadows had two felony warrants for theft by taking and forgery in

the third degree out of Cobb County. The State also pointed out that Meadows had

pending misdemeanor charges that had been transferred to the Fulton County District

Attorney’s Office for prosecution as felonies. Specifically, a state court judge had

issued orders transferring the charges to superior court in 2021. At the close of the

hearing, the trial court gave the State an opportunity to file a post-hearing brief. The

State also filed a motion requesting a formal evidentiary hearing.

On January 5, 2024, the trial court granted Meadows’s request to dismiss Count

1. Specifically, the court found

that the Cobb County warrants had yet to be effectuated or served on [Meadows] at the time of his arrest for this charge. It is also clear that the charges against [Meadows] in Fulton County have never been given a Criminal Prosecution (CP) number by the District Attorney’s Office,

2 Effective April 12, 2022, Georgia law no longer requires adults over the age of 21 to obtain licenses to carry weapons, so long as they are otherwise eligible for a license. OCGA §§ 16-11-126 (g) (1), 16-11-125.1 (2.1). 3 thereby failing to acknowledge that the three (3) misdemeanor cases would be prosecuted as felonies.

As a result, the trial court concluded that it “[could not] find that [Meadows] was an

unlawful carrier at the time of his arrest.” The court also denied the State’s request

for a formal evidentiary hearing. This appeal followed.3

In a single enumeration of error, the State argues that the trial court erred in

finding that Meadows was a lawful weapons carrier despite the presence of

outstanding felony warrants at the time of his arrest, as well as pending misdemeanor

charges that had been transferred to the Fulton County District Attorney’s Office to

be prosecuted as felonies.

“A[ ] [charging instrument] may be challenged by general or special demurrer.”

Kimbrough v. State, 300 Ga. 878, 880 (2) (799 SE2d 229) (2017). “A general demurrer

challenges the sufficiency of the substance of the indictment [or accusation], whereas

a special demurrer challenges the sufficiency of the form of the indictment [or

3 After the trial court issued a certificate of immediate review, the State filed an application for interlocutory appeal in this Court. See Case No. A24I0116. We granted the application because the underlying order was directly appealable under OCGA § 5-7-1 (a) (1), which permits the State to appeal, as relevant here, “an order, decision, or judgment setting aside or dismissing any indictment, accusation, or . . . any count thereof[.]” See State v. Mendoza, 190 Ga. App. 831, 831 (1) (380 SE2d 357) (1989). 4 accusation].” Green v. State, 292 Ga. 451, 452 (738 SE2d 582) (2013) (citation and

punctuation omitted). Importantly, a charging instrument “is to be strictly construed

against the State when a general demurrer has been filed against it.” Stapleton, 362 Ga.

App. at 741 (1) (citation and punctuation omitted).

“The true test of the sufficiency of a [charging instrument] to withstand a

general demurrer is found in the answer to the question: Can the defendant admit the

charge as made and still be innocent? If he can, the [accusation] is fatally defective.”

Heath v. State, 349 Ga. App. 84, 86 (2) (825 SE2d 474) (2019) (citation and

punctuation omitted). In that regard,

to withstand a general demurrer, an [accusation] must: (1) recite the language of the statute that sets out all the elements of the offense charged, or (2) allege the facts necessary to establish violation of a criminal statute. If either of these requisites is met, then the accused cannot admit the allegations of the [accusation] and yet be not guilty of the crime charged.

Id. at 87 (2) (citation and punctuation omitted).

The State contends that the pending felony warrants and misdemeanor charges

(which had been transferred to the District Attorney’s Office to be prosecuted as

felonies) “amounted to pending felony proceedings such that [Meadows] could not

5 possess a license and therefor[e] a firearm[.]” As relevant here, effective April 12,

2022, OCGA § 16-11-126 (g) (1) provides in pertinent part that “no person shall carry

a weapon unless he or she is a lawful weapons carrier.” OCGA § 16-11-125.1 (2.1) in

turn defines a “lawful weapons carrier” as “any person who is licensed or eligible for

a license pursuant to [OCGA §] 16-11-129[.]” And OCGA § 16-11-129 (b) (2) (C)

provides that no weapons carry license shall be issued to, as relevant here, “[a]ny

person against whom proceedings are pending for any felony[.]” However, we need

not decide whether the outstanding felony warrants and misdemeanor charges

disqualify Meadows from being a lawful weapons carrier because, as explained below,

the accusation as written was fatally defective as to the firearms charge.

In this case, Count 1 of the accusation charged Meadows with “carrying [a]

weapon without a valid license, a misdemeanor, for that [Meadows] in the County of

Fulton, State of Georgia, on or about February 01, 2022 did carry a handgun, a

weapon, without a valid weapons carry license[.]” However, effective April 12, 2022,

“carrying a firearm without a valid license” is no longer a criminal offense in Georgia

pursuant to OCGA § 16-11-126 (g) (1). See Robinson v. State, 256 Ga. 564, 565 (350

SE2d 464) (1986) (“When a statute making described conduct a crime is repealed

6 prior to final judgment on a conviction, the repeal ends the prosecution if the

legislature has not provided otherwise in a saving clause.”). Furthermore, the

accusation describes the conduct underlying Count 1 as Meadows’s carrying a

handgun “without a valid weapons carry license[.]” The accusation does not cite

OCGA § 16-11-126 (g) (1) — which came into effect two months after the accusation

was issued and provides in pertinent part that “no person shall carry a weapon unless

he or she is a lawful weapons carrier.” Nor does the accusation charge Meadows with

being an unlawful weapons carrier based on his outstanding felony warrants or

misdemeanor charges, sanctioned by a judge, that had been transferred to superior

court for adjudication. See Jackson v. State, 301 Ga. 137, 140-141 (1) - (2) (800 SE2d

356) (2017) (holding that it “is not enough” to “alleg[e] that a statute has been

violated,” and that an indictment was legally insufficient where it was “based upon

several assumptions of fact not set forth in the indictment”).

Even assuming, without deciding, that Meadows could be considered an

unlawful weapons carrier under the current version of OCGA § 16-11-126 (g) (1) (due

to the outstanding felony warrants and/or the misdemeanor charges that had been

transferred to superior court for prosecution), the State has failed to show that

7 Meadows could admit the allegations in the accusation as to Count 1 as written and

still be guilty of a crime. See Stinson v. State, 279 Ga. 177, 179 (2) (611 SE2d 52) (2005)

(if accused can admit to the allegations and still not be guilty of a crime, the indictment

is insufficient and the conviction void). Here, Meadows could admit the allegations

in the accusation — that he “carr[ied] [a] handgun, a weapon, without a valid

weapons carry license” and still be not guilty of a crime because, effective April 12,

2022, “carrying a firearm without a valid license” is no longer a criminal offense in

Georgia pursuant to OCGA § 16-11-126 (g) (1). See Yeamans v. State, 366 Ga. App.

780, 783-787 (1) (884 SE2d 380) (2023) (reversing the trial court’s denial of demurrer

where the substance of count of indictment charging defendant with attempted child

molestation was insufficient as it charged defendant only with having indecent

conversation with undercover police officer via his cell phone, which was not made

illegal by plain language of child molestation statute, and there was no allegation of

what acts defendant’s conversations with officer were going to lead to); Heath, 349

Ga. App. at 88 (2) (indictment charging several offenses predicated on reckless driving

was defective in failing to allege that defendant acted with reckless disregard; she

could admit allegations in indictment and not be guilty of crimes based on the

8 predicate offenses of reckless driving). Compare State v. Wilson, 318 Ga. App. 88, 96

(1) (c) (iii) (732 SE2d 330) (2012) (count of indictment purporting to charge

defendant with fleeing or attempting to elude a police officer was legally sufficient to

survive a general demurrer; even though the count did not allege that the officer in

question was in uniform, wearing an official badge, and using a marked police vehicle,

as required by the statute under which defendant was charged, alleged facts were

sufficient to charge defendant with the lesser included offense of obstruction of a

peace officer, and defendant could not admit to the allegations in the count without

being guilty of committing a crime); Budhani v. State, 306 Ga. 315, 319-321 (1) (b) (830

SE2d 195) (2019) (indictment in narcotics prosecution was sufficient to withstand

general demurrer and satisfied due process requirements, where it alleged the essential

elements of the two offenses charged, i.e., that defendant sold, or possessed with

intent to distribute, a specific Schedule I controlled substance identified by its

scientific and common name, and put defendant on notice of crimes with which he

was charged and against which he had to defend).

As a result, the accusation with respect to Count 1 was insufficient to withstand

a general demurrer and we affirm the trial court’s dismissal of this charge. See State

9 v. Freeman, 349 Ga. App. 94, 98 (825 SE2d 538) (2019) (“to the extent that our

reasoning differs from that of the trial court, we nevertheless affirm the trial court’s

grant of the general demurrer”); South Carolina Ins. Co. v. Glennville Bank, 111 Ga.

App. 174, 179 (2) (b) (141 SE2d 168) (1965) (where a demurrer “is overruled, the

appellate court will not consider grounds not urged at the trial level; on the contrary,

where the demurrer has been sustained, albeit for the wrong reason, the trial court will

be affirmed if right for any reason”); see also Whatley v. State, 297 Ga. 399, 401 (774

SE2d 687) (2015) (affirming the denial of defendant’s general demurrer under the

right-for-any-reason rule).

Judgment affirmed. Barnes, P. J., and Pipkin, J., concur.