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K. POST-CONVICTION RELIEF See major heading POST-CONVICTION RELIEF, below L. SEARCH WARRANTS See SEARCH AND SEIZURE – SEARCH WARRANTS, GENERALLY, below M. SIMULTANEOUS PROSECUTIONS Lawrence v. State, 289 Ga.App. 698, 658 S.E.2d 144 (February 5, 2008). Defendants were arrested in Muscogee County for conspiracy to traffick in cocaine, but never indicted there. Instead, they were indicted in Harris County. Defendant contends that the Harris County indictment is a nullity, “since Muscogee County had already acquired exclusive jurisdiction of the case and its prosecution was still pending at the time the Harris County indictment was returned.” “ Griffin [ v. State , 266 Ga. 115 (1), 464 S.E.2d (1995), disapproved in part on other grounds , Washington v. State , 276 Ga. 655, 581 S.E.2d 518 (2003)] provides: ‘Where two or more courts have concurrent jurisdiction of the same offense, the court which first acquires jurisdiction of the prosecution retains it to the exclusion of others while that case is pending, thereby preempting jurisdiction for all offenses originating in the same course of criminal conduct.’” “The instant case is materially different from and not controlled by Griffin because there was no indictment for the same offense pending in another county at the time that the Harris County indictment was returned. See Roberts v. State, 279 Ga.App. 434, 438(1) (631 S.E.2d 480) (2006) ( Griffin distinguishable and not controlling when no indictment pending at time indictment at issue was filed), overruled in part on other grounds, DeSouza v. State, 285 Ga.App. 201, 202, n. 2 (645 S.E.2d 684) (2007). While Lawrence was first arrested in Muscogee County and that case was bound over to superior court, an indictment was never returned in Muscogee County. In the absence of an indictment, the Muscogee County Superior Court lacked jurisdiction of the cocaine trafficking prosecution. Armstrong v. State, 281 Ga.App. 297 (635 S.E.2d 880) (2006) (trial court lacks jurisdiction in the absence of an indictment). ‘“Prosecution” means all legal proceedings by which a person’s liability for a crime is determined, commencing with the return of the indictment or the filing of the accusation, and including the final disposition of the case upon appeal.’ (Emphasis supplied.) OCGA § 16-1-3(14). Since Muscogee County had not yet commenced its prosecution with the return of an indictment, Harris County was authorized to exercise its jurisdiction by indicting Lawrence for trafficking in cocaine. The trial court therefore did not err in denying Lawrence’s motion to quash the indictment.” XI. 1. UNDERAGE POSSESSION OF ALCOHOLIC BEVERAGE Burchett v. State, 283 Ga.App. 271, 641 S.E.2d 262 (January 12, 2007). 1. At roadblock, defendant smelled of alcohol, and admitted to officer that “‘he had [had] a beer earlier that evening.’ Burchett did not give any other information about when or where he had consumed that beer, nor did he offer such evidence at trial.” Held, venue for defendant’s prosecution for alcohol possession underage was properly proven: “Under Georgia law, ‘[i]f in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.’ OCGA § 17-2-2(h). In Hanson v. State, the Supreme Court of Georgia held that evidence that the underaged defendant ‘had the odor of alcohol on his person, appeared to be in an intoxicated state, and admitted that he had consumed an alcoholic beverage’ was sufficient to establish venue for possession of an alcoholic beverage by an underaged person in the county in which the officer encountered the person. Hanson v. State, 275 Ga. 470, 471(1), (2) (569 S.E.2d 513) (2002). See also Lee v. State, 201 Ga.App. 827, 828(1) (412 S.E.2d 563) (1991) (evidence that a police officer smelled alcohol on an underaged person’s breath is sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the person possessed an alcoholic beverage); Hadaway v. State, 190 Ga.App. 5, 6(2) (378 S.E.2d 127) (1989) (accord). Similarly, the evidence in this case showed beyond a reasonable doubt that the offense might have been committed in Forsyth County, and the case was properly tried there. OCGA § 17-2-2(h); Hanson v. State, 275 Ga. at 471(2).” 2. Defendant contends that State failed to prove beyond a reasonable doubt that the exception provided by OCGA § 3-3-23(c) (person under 21 may possess alcoholic beverage in home when provided by parent or guardian) didn’t apply. Held, State had no burden to disprove exception where defendant came forward with no evidence that the exception did apply. “ Where certain conduct is generally prohibited, but where a statutory exception permits the conduct under specified circumstances, the exception amounts to an affirmative defense. May v. State, 179 Ga.App. 736, 737(2) (348 S.E.2d 61) (1986). See OCGA §§ 16-3-20 through 16-3-28 (statutory affirmative defenses); Jack Goger, Daniel's Georgia Criminal Trial Practice, § 21-17 (2007 ed.) (affirmative statutory defenses). The initial burden of producing evidence to support an affirmative defense rests upon the defendant charged with the offense. May v. State, 179 Ga.App. at 737(2). Only after a defendant raises the issue at trial is it then incumbent upon the State to disprove the defense beyond a OFFENSES See also main heading DUI, above A. ALCOHOLIC BEVERAGES (TITLE 3)