Hortman v. State
Hortman v. State
Opinion of the Court
A Bibb County Superior Court jury found Benjamin F. Hortman guilty of trafficking in marijuana, conspiracy to traffic in marijuana, and six counts of use of a communication facility in committing or facilitating a felony under the Georgia Controlled Substances Act. At sentencing, the trial court merged Hortman’s conspiracy conviction with his trafficking conviction. In this appeal, Hortman contends that the trial court erred in denying his motion for directed verdict of acquittal for trafficking in marijuana, because the State failed to prove venue for that offense in Bibb County. We agree and reverse.
Hortman and several others were charged under a multi-count indictment. Count 2, the one at issue here, alleged that Hortman, Thomas Joseph Sams, Chalma Lee Sexton, Ralph Harris, Benjamin Drake Hortman, and Franklin Brad Horton
between the 1st day of July in the year 1999, and the 30th day of September 1999, in the State and County aforesaid [(Bibb)], did then and there knowingly bring into the State of Georgia more than 100 pounds of marijuana, and did possess said marijuana with the intent to distribute it, in violation of the Georgia Controlled Substances Act, contrary to the laws of said State, the good order, peace, and dignity thereof.
During a routine check of air cargo for contraband at an airport in San Antonio, Texas, law enforcement officers discovered the marijuana and intercepted the entire shipment on September 13. The next day, Sergeant Richard Guzzmon, assigned to the narcotics division of the Texas Department of Public Safety, took custody of “the two large boxes that Officer Gaston had seized.” After observing “compressed marijuana,” Guzzmon testified that he resealed the two boxes destined for Georgia and shipped them by Airborne Express to Investigator Harry Colbert. The aggregate weight of each box was 62 and 58 pounds respectively. When the two boxes arrived, Colbert, on behalf of the Middle Georgia Drug Task Force, assumed custody of them in Bibb County.
Investigators learned that Sexton had a criminal record that included trafficking in marijuana and was on parole when he made the shipping arrangements. Based on information implicating Hortman, the task force obtained a warrant to conduct electronic intercepts of Hortman’s cell phone and two business telephones at Hortman’s Grocery, a business operated by Drake Hortman, his son. Hortman was a longtime resident of Crawford County and the store was also in Crawford County. Between September 14 and September 28, the task force intercepted numerous calls involving these telephones. Hortman’s participation in the conspiracy to import a trafficking amount of marijuana (more than 50 pounds as required by OCGA § 16-13-31 (c)) was evidenced in these intercepted telephone conversations.
In his sole claim of error, Hortman contends that the State failed to prove venue in Bibb County for prosecuting him there on the trafficking offense. He asserts that the relevant act of possession took place in Texas, not Georgia. He argues that since the element of dominion or control was cut off by law enforcement officials in Texas, no actual or constructive possession ever occurred in Bibb County.
Possession may be joint or exclusive and actual or constructive. Stevens v. State
The State points out that venue may be established in the county where the substantive offense is committed, even if the defendant never entered that county. Osborn v. State.
Judgment reversed and case remanded.
A task force member retrieved the third box from Virginia and brought it to Georgia.
The jury acquitted Hortman of violating the Georgia Racketeer Influenced and Corrupt Organizations Act.
Stevens v. State, 245 Ga. App. 237, 238 (1) (537 SE2d 688) (2000).
Epps v. State, 251 Ga. App. 645, 646 (555 SE2d 25) (2001).
Davitte v. State, 238 Ga. App. 720, 724 (1) (b) (520 SE2d 239) (1999).
Raftis v. State, 175 Ga. App. 893, 895 (1) (334 SE2d 857) (1985).
Moser v. State, 178 Ga. App. 526, 531 (343 SE2d 703) (1986).
Osborn v. State, 161 Ga. App. 132, 133 (1) (291 SE2d 22) (1982).
Davis v. State, 225 Ga. App. 564, 566 (3) (484 SE2d 284) (1997).
Smith v. State, 202 Ga. App. 664, 666 (415 SE2d 481) (1992).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.