                                FIFTH DIVISION
                               MCFADDEN, C. J.,
                           RICKMAN and MARKLE, 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.
                                http://www.gaappeals.us/rules


                                                                     March 23, 2020




In the Court of Appeals of Georgia
 A18A0154. PENNINGTON v. THE STATE.

      MCFADDEN, Chief Judge.

      Charles Lee Pennington, Jr. was convicted of trafficking in methamphetamine

(OCGA § 16-13-31 (f) (1)) and possession with the intent to distribute a controlled

substance near a school (OCGA § 16-13-32.4). In Pennington v. State, 346 Ga. App.

586 (816 SE2d 762) (2018), we affirmed his convictions. In Division 1 of our

opinion, we held that the evidence was sufficient to support the convictions. Id. at

587-588 (1). In Division 2 of our opinion, we held that the trial court did not err in

striking a prospective juror for cause. Id. at 588-591 (2). And in Division 3 of our

opinion, we held that the trial court did not err by failing to instruct the jury on an

affirmative defense to prosecution for possession with intent to distribute near a
school, reasoning that Pennington was not entitled to the charge on the affirmative

defense because he had not admitted the act. Id. at 591 (3).

         The Supreme Court of Georgia granted certiorari to review Division 3 of our

opinion. In Pennington v. State, 306 Ga. 854 (834 SE2d 63) (2019), the Court held

that a

         criminal defendant is not required to ‘admit’ anything, in the sense of
         acknowledging that any particular facts are true, in order to raise an
         affirmative defense [and that we had] erred in affirming the trial court’s
         denial of Pennington’s request for a jury instruction on the affirmative
         defense . . . solely on the basis that Pennington did not admit that he
         possessed with intent to distribute methamphetamine near a school.


Id. at 855-856 (citation omitted). So the Court vacated our judgment and remanded

the case to us “for consideration of whether the trial court erred in failing to give the

requested instruction, that is, whether the instruction was supported by at least slight

evidence, and, if so, whether any such instructional error was harmful.” Id. at 856.

         Because the Supreme Court neither addressed nor considered Divisions 1 and

2 of our opinion in Pennington v. State, 346 Ga. App. 586, and those Divisions are

not inconsistent with the Supreme Court’s own opinion, Divisions 1 and 2 became

“binding upon the return of the remittitur.” Shadix v. Carroll County, 274 Ga. 560,


                                             2
563 (1) (554 SE2d 465) (2001). We vacate Division 3 of our earlier opinion and in

place of that Division we adopt as our own the Supreme Court’s opinion in

Pennington v. State, 306 Ga. 854. We further hold that the trial court erred in failing

to charge the jury on the affirmative defense and that the error was harmful, so we

reverse Pennington’s conviction for the offense of possession with intent to distribute

methamphetamine near a school.1

      1. Facts.

      The earlier appellate decisions set forth in detail the trial evidence in this case.

See Pennington v. State, 306 Ga. at 854-855; Pennington v. State, 346 Ga. App. at

587-588 (1). In summary, Pennington lived in a shed on property adjacent to an

elementary school, less than 100 feet away from the school property. Pennington, 346

Ga. App. at 587 (1). Acting on a tip, and with Pennington’s consent, law enforcement

officers searched the shed and found what appeared to be an active methamphetamine

lab, equipment and substances used in methamphetamine production, traces of

methamphetamine residue on a glass pipe and in a used plastic baggie, and numerous



      1
        Because the evidence was sufficient to support Pennington’s conviction of
that offense, Pennington, 346 Ga. App. at 588 (1) (b), he may be retried. Henry v.
State, 307 Ga. 140, 146 (2) (c) n. 6 (834 SE2d 861) (2019).

                                           3
empty, unused plastic baggies of a type used in the distribution or storage of drugs.

Id.

      2. Slight evidence supported the instruction on the affirmative defense.

      As explained in our earlier decision in this case, the evidence authorized

Pennington’s conviction under OCGA § 16-13-32.4 (a) for possession with intent to

distribute a controlled substance near a school. Pennington, 346 Ga. App. at 588 (1)

(b). That Code section provides an affirmative defense to the offense if “the

prohibited conduct took place entirely within a private residence, that no person 17

years of age or younger was present in such private residence at any time during the

commission of the offense, and that the prohibited conduct was not carried on for

purposes of financial gain.” OCGA § 16-13-32.4 (g).

      Pennington asked the trial court to charge the jury on this affirmative defense.

The trial evidence entitled him to the charge. “[T]o authorize a requested jury

instruction, there need only be slight evidence supporting the theory of the charge.”

Pennington, 306 Ga. at 855 (citation and punctuation omitted). “The evidence

necessary to justify a jury charge need only be enough to enable the trier of fact to

carry on a legitimate process of reasoning.” Koritta v. State, 263 Ga. 703, 704-705

(438 SE2d 68) (1994). “[T]he defendant need not present evidence to support the

                                          4
theory of an affirmative defense, if the [s]tate’s evidence raises the issue.”

Pennington, supra.

      There was at least slight evidence at trial that Pennington’s possession of

methamphetamine took place entirely within the shed which was his residence. The

traces of methamphetamine residue were found inside the shed. The setup described

by witnesses as an “active methamphetamine lab” was found inside the shed, and the

investigating officer found no evidence of production outside the shed. The only

methamphetamine-related items found outside the shed were empty, discarded

containers of substances used in methamphetamine production. Whether the existence

of these discarded containers meant that Pennington had possessed methamphetamine

outside of his residence (and so could not use the affirmative defense) was a question

for the jury. See Clark v. State, 307 Ga. 537, 539-540 (1) (837 SE2d 265) (2019) (it

is for the jury to determine whether the state has met its burden of disproving an

affirmative defense that is supported by some evidence).

      There was at least slight evidence at trial that no minors were present in the

shed when Pennington possessed methamphetamine. The property on which the shed

stood was separated from the school property by a wooded area and a chain-link

fence. The two people who lived in the shed with Pennington — his daughter and her

                                          5
boyfriend — were both over the age of 17. An investigating officer found no

evidence that anyone under the age of 17 had been inside the shed. This evidence,

while circumstantial, permitted an inference that no persons aged 17 or younger were

present when Pennington used methamphetamine. See generally Woods v. State, 233

Ga. 347, 348 (1) (a) (211 SE2d 300) (1974) (discussing issues of proof when element

of criminal offense requires proving a negative).

      Finally, there was at least slight evidence at trial that Pennington did not

possess methamphetamine for the purpose of financial gain. The evidence that only

trace amounts of methamphetamine were found, in a glass pipe and a used plastic

baggie, could support the theory that the methamphetamine was merely for personal

use. And the officers did not find in the shed other items associated with the sale of

drugs, such as digital scales, cash, or methamphetamine in baggies ready to sell. In

contrast, in Harkins v. State, 281 Ga. App. 512, 515-516 (2) (636 SE2d 698) (2006),

which the state cites for the argument that the evidence in this case did not authorize

a charge on the affirmative defense in OCGA § 16-13-32.4 (g), the defendant did not

deny that drugs were sold at her residence but argued that she was not a part of the

drug-selling enterprise that her boyfriend ran from the residence.



                                          6
      Because there was slight evidence supporting the affirmative defense requested

by Pennington, the trial court erred in refusing to charge the jury on the defense. See

Henry v. State, 307 Ga. 140, 145 (2) (b) (834 SE2d 861) (2019).

      3. The error was harmful.

      “The test for determining nonconstitutional harmless error is whether it is

highly probable that the error did not contribute to the verdict. And in determining

whether such an error is harmless, we assess the evidence from the viewpoint of

reasonable jurors, not in the light most favorable to the verdict[ ].” Henry, supra at

146 (2) (c) (citations and punctuation omitted).

      We cannot say that it was highly probable the trial court’s failure to instruct the

jury on the statutory affirmative defense to the offense of possession of

methamphetamine near a school did not contribute to the jury’s verdict on that charge.

“The trial court’s refusal to give [the] instruction deprived [Pennington] of one of

[his] defense theories . . . and thus deprived [him] of the chance for the jury to [acquit

him based on the affirmative defense].” Shah v. State, 300 Ga. 14, 22 (2) (b) (793

SE2d 81) (2016).

      Judgment affirmed in part and reversed in part. Rickman and Markle, JJ.,

concur.

                                            7
