In the aftermath of a traffic stop, Hardeman was found in possession of marijuana and arrested. She was indicted for possession of marijuana with intent to distribute, OCGA 16-13-30 (j) (1), and convicted of possession of more than one ounce of marijuana, also OCGA 16-13-30 (j) (1). In her sole enumeration of error, Hardeman contends the court erred in charging the jury that possession of marijuana is a lesser included offense of possession with intent to distribute. 1

The court was correct. "[A]s a matter of law the offense of possession of marijuana . . . [is] a lesser included offense of the offense of possession of marijuana with intent to distribute. . . ." Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463) (1991).

Hardeman contends that she was nonetheless prejudiced by the use of the term "lesser included offense" because it may have engendered the belief that conviction on a possession charge would result in a lesser penalty. The jury is not concerned with punishment, as Hardeman concedes, and we find nothing in the charge that might have indicated that it should consider the punishment effects of its verdict. The court specifically charged that the jury's only concern was guilt or innocence. The court also charged the jury on the elements of the two crimes. Possession is a lesser included offense simply because it lacks the element of specific intent to distribute, Talley, supra, which the jury by its verdict found wanting. The punishment for such does not affect the elements but is affected by the amount of the substance, not intent.

Terry Clyne, for appellant.