Daniel v. State
Daniel v. State
Opinion of the Court
Abbe Daniel was convicted of trafficking in amphetamine, possession of methamphetamine, and obstruction of a law enforcement officer. Her motion for new trial was denied, and she appeals. She contends that the trial court erred in denying her motion for directed verdict of acquittal on the amphetamine trafficking charge. We agree and reverse Daniel’s conviction for that offense. Her remaining convictions are affirmed.
Under Schedule II of the Georgia Controlled Substances Act, “amphetamine” includes the drug itself as well as “its salts, optical isomers, and salts of its optical isomers.”
Daniel was the passenger in a vehicle that was the subject of a traffic stop. During the course of the stop, she attempted to flee the scene. While in flight, she discarded a bag which the police recovered. Inside the bag were 21 smaller bags. One of the smaller bags contained methamphetamine, and the remaining 20 bags contained amphetamine.
A forensic chemist for the State Crime Lab testified that the material in the 20 bags containing amphetamine weighed 28.8 grams. Although the chemist performed no quantitative analysis on the substance in the bags, he testified that the material was “most likely” composed of a “mixture of stuff.” He estimated that the mixture consisted of between 40 to 60 percent pure amphetamine and that “a fairly large percentage of the weight would be [amphetamine] hydrochloride.” According to the chemist, “[a]mphetamine is usually kept as a hydrochloride salt, because the freebase amphetamine is volatile. It would just evaporate off into the air if . . . they didn’t make the salt out of it.”
Because the above evidence is insufficient to show that Daniel was in possession of 28 grams or more of amphetamine or amphetamine hydrochloride, as opposed to a mixture containing these substances, Daniel was entitled to a directed verdict on the amphetamine trafficking count of the indictment. “However, as the evidence was sufficient, under a Jackson v. Virginia
Judgment affirmed in part and reversed in part and case remanded with direction.
OCGA § 16-13-26 (3) (A).
See Bellamy v. State, 243 Ga. App. 575, 579 (2) (530 SE2d 243) (2000).
See Belcher v. State, 161 Ga. App. 442, 443 (1) (288 SE2d 299) (1982), as interpreted in Barnett v. State, 204 Ga. App. 491, 497 (3) (420 SE2d 43) (1992).
Byers v. State, 204 Ga. App. 552, 554 (3) (420 SE2d 23) (1992); Barnett v. State, supra.
443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Barnett v. State, supra at 498 (3).
Concurring Opinion
concurring specially.
I agree with the result reached by the majority opinion. I write separately to point out that, on first reading, the facts of this case
As in Barnett, although the relevant trafficking statute describes two methods of committing the offense, the indictment here charged that the offense was committed in one specific manner. The State therefore was required to prove that the offense occurred as charged in the indictment. See Barnett, supra at 498. In Bellamy, supra, however, we made the broad statement that OCGA § 16-13-31 (e) “treats pure methamphetamine and a mixture containing methamphetamine equally.” Id. at 579 (2). I do not believe this statement materially conflicts with Barnett or our holding in this case. In Bellamy, unlike the facts here, the defendants were charged with trafficking in a mixture containing methamphetamine. The evidence showed that they were trafficking in pure methamphetamine. It would have been absurd to hold that a fatal variance between the indictment and proof at trial existed in such a circumstance.
Also, this case is distinguished from Belcher, supra. There, we stated that “[a] specific quantity of cocaine is not required to be present in the mixture in order to constitute a violation of’ the trafficking statute. Id. at 443 (1). But in Belcher, unlike this case and unlike Barnett, it appears that the indictment charged the defendant with violating the statute by either of two methods. Consequently, our statement that a specific amount of cocaine was not required was correct in that circumstance. The State could have drafted the indictment here to allege the crime of trafficking in a controlled substance by two different methods. It did not, and the proof at trial simply did not show that Daniel committed the crime as charged in the indictment.
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