Possessing a Weapon During a Felony

Going From Bad to Worse:

Cobb County has some of the most aggressive prosecutors in Georgia. If there is any way to enhance charges at the intake phase, when prosecutors use the facts in the police report to bring formal charges against defendants, that’s usually what happens. Police reports usually include an inventory of contraband seized. If this inventory mentions a knife or gun, even if the defendant did not possess the item, prosecutors almost always add a Section 16-11-106 enhancement to the underlying charges.

This enhancement is five years for a first conviction and ten years for a subsequent conviction. Probation is unavailable in subsequent 16-11-106 cases. So, this enhancement essentially transforms a minor felony into a major felony.

When dealing with penalty enhancements, a Marietta criminal defense lawyer basically has two options. Sometimes, it’s best to focus on the underlying offense, which must be one of the crimes listed below. All these offenses have a number of moving parts. Other times, a Marietta criminal defense lawyer attacks the enhancement itself. Prosecutors are so aggressive that they often get carried away and bring charges, especially enhancements, that the facts do not support.

Challenging Predicate Offenses

Prosecutors can only add the weapons enhancement to the following crimes. If you take out the root, the plant dies.

Crimes Against Persons

These offenses are almost always physical or sexual assaults. Technically, some property crimes, like embezzlement, could fall into this category as well.

Occasionally, police officers personally witness these crimes. Such single-witness cases are much easier for prosecutors to win. Police officers are essentially professional witnesses. Most of them has testified hundreds of times, and they have usually received some formal training as well. So, their testimony is always available and usually compelling.

Lay witnesses are a different story. Their testimony might be unavailable. Some people move and some people are uncooperative, for whatever reason. Furthermore, their testimony is often not compelling. Many witnesses change their stories, at least regarding the details.

Theft/Unlawful Entry

The same lay witness problems usually affect theft and unlawful entry cases. In some situations, the problems are even worse.

Assume Keith someone steals Keith’s car. A few hours later, police officers arrest Eddie, who was driving Keith’s car. There was a gun under the passenger seat.

These facts would probably support a theft conviction. However, they probably wouldn’t support a weapons enhancement. There’s not enough evidence to prove, beyond a reasonable doubt, that Eddie possessed the gun “during the commission of” the crime, which is what the statute requires.

When the evidence is weak, it’s easier for a Marietta criminal defense lawyer to obtain a favorable plea bargain. In this instance, prosecutors would most likely drop the weapons enhancement, so Eddie would only be sentenced for the motor vehicle theft. A simple theft looks a lot better than theft with a weapon. The theft/weapon combination makes the offense look like a carjacking.

A quick note about unlawful entry cases. These offenses often involve the violation of a restraining order. So, in addition to the illegal entry (if the defendant had a key, the entry might not have been unlawful) and the weapons possession, prosecutors must establish that the protective order was valid. That’s an awful lot of moving parts.

Drug Crimes

Many people associate “drug crimes” with illegal street drugs, like heroin or cocaine. Increasingly, however, these offenses involve illegally obtained drugs, like prescription painkillers and marijuana. However, since the possession or delivery crime must be a felony, marijuana weapons enhancement cases do not come up too often.

The enhancements’ wording often comes into play in these situations. The defendant need not use the weapon during the commission of the crime. Possession is sufficient. Furthermore, the weapon need not be illegal. If the defendant has a license to carry a weapon and has a couple of illegal pain pills, both the predicate offense and the enhancement could apply.

Incidentally, a weapon could be a firearm, a knife with at least a three-inch blade, or a taser which can incapacitate a person or deliver a charge of over 20,000 volts.

Challenging the Weapons Enhancement

Just because a prohibited weapon was on the inventory list, that doesn’t mean it’s admissible for Section 16-11-106 purposes. Possession is even more difficult to establish in this context than it is in other cases.

First, prosecutors must produce the weapon in court. Usually, the weapons pat-down exception applies in these cases. If officers have reasonable suspicion, they can pat down suspects for weapons and seize anything they find. In other cases, the state could be hard-pressed to produce the weapon. Before 2009, officers usually relied on the search-incident-to-arrest exception. But the Supreme Court has sharply limited the scope of these searches.

Normally, the state must also prove the substance was illegal. However, this requirement usually does not apply in weapons enhancement cases. As mentioned, the defendant could legally have the gun, and the possession enhancement could still apply.

Speaking of possession, Section 16-11-106 defines the P-word very narrowly. Usually, if the item is anywhere close to the defendant, like in the trunk of the car or the bed of a pickup truck, that’s good enough. But in this case, the weapon must be “within arm’s reach of his or her person.” Usually, an arm’s length is a little less than three feet.

There are two other possession elements as well. The state must prove that the defendant knew the weapon was there, and that the defendant controlled the weapon. Assume Frances, who had some illegal pills, was driving a car, and Wendy, who had a gun in her purse, was in the passenger seat. If prosecutors try to pin a weapons enhancement on Wendy, which they probably would, they almost certainly couldn’t prove that Wendy controlled the weapon. They probably couldn’t prove she knew about it either.

The weapons enhancement is easy to add to certain crimes, but often difficult to prove in court. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. After hours, home, and jail visits are available.