Daniel v. State

Court of Appeals of Georgia

Daniel v. State

555 S.E.2d 154, 251 Ga. App. 792, 2001 Fulton County D. Rep. 3115, 2001 Ga. App. LEXIS 1142

CourtCourt of Appeals of Georgia

DecidedOctober 9, 2001

DocketA01A2256

StatusPublished

Cited by6 cases

This text of 555 S.E.2d 154 (Daniel v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Daniel v. State, 555 S.E.2d 154, 251 Ga. App. 792, 2001 Fulton County D. Rep. 3115, 2001 Ga. App. LEXIS 1142 (Ga. Ct. App. 2001).

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Opinions

Phipps, Judge.

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.”¹ Under OCGA § 16-13-31 (e), a person who knowingly possesses “28 grams or more of . . . amphetamine, or any mixture containing . . . amphetamine, as described in Schedule II” is guilty of trafficking in amphetamine. The amphetamine trafficking statute thus sets forth two methods of committing the crime of trafficking. One method deals with amphetamine itself (defined to include amphetamine chloride). The other method deals with any mixture containing amphetamine. A conviction is sustainable under the statute based on proof that the crime was committed by either method.² Moreover, where the indictment charges that the crime was committed by both methods, a conviction is sustainable under the indictment based on proof that the crime [793]*793was committed by either method.³ Where, however, the indictment alleges that the crime was committed by one method, the State is required by the indictment to prove commission of the crime by that particular method.⁴ ⁵The indictment in this case charged Daniel with trafficking in amphetamine by reason of having been “knowingly in possession of 28 grams or more of amphetamine.”

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. Virginia⁵ standard!,] ‘ “to support [Daniel’s] conviction for possession of [amphetamine], the case is remanded with direction that a conviction and sentence be entered for that offense.” ’ [Cit.]”⁶

Judgment affirmed in part and reversed in part and case remanded with direction.

Barnes, J., concurs. Smith, P. J., concurs specially.

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Phipps, Judge.

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.”¹ Under OCGA § 16-13-31 (e), a person who knowingly possesses “28 grams or more of . . . amphetamine, or any mixture containing . . . amphetamine, as described in Schedule II” is guilty of trafficking in amphetamine. The amphetamine trafficking statute thus sets forth two methods of committing the crime of trafficking. One method deals with amphetamine itself (defined to include amphetamine chloride). The other method deals with any mixture containing amphetamine. A conviction is sustainable under the statute based on proof that the crime was committed by either method.² Moreover, where the indictment charges that the crime was committed by both methods, a conviction is sustainable under the indictment based on proof that the crime [793]*793was committed by either method.³ Where, however, the indictment alleges that the crime was committed by one method, the State is required by the indictment to prove commission of the crime by that particular method.⁴ ⁵The indictment in this case charged Daniel with trafficking in amphetamine by reason of having been “knowingly in possession of 28 grams or more of amphetamine.”

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. Virginia⁵ standard!,] ‘ “to support [Daniel’s] conviction for possession of [amphetamine], the case is remanded with direction that a conviction and sentence be entered for that offense.” ’ [Cit.]”⁶

Judgment affirmed in part and reversed in part and case remanded with direction.

Barnes, J., concurs. Smith, P. J., concurs specially.

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Bluebook (online)

555 S.E.2d 154, 251 Ga. App. 792, 2001 Fulton County D. Rep. 3115, 2001 Ga. App. LEXIS 1142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniel-v-state-gactapp-2001.

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