WHOLE COURT
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 7, 2013
In the Court of Appeals of Georgia A12A2540. IN THE INTEREST OF S. C. P., a child.
MCFADDEN, Judge.
S. C. P. appeals the juvenile court’s order placing him in restrictive custody for
acts that, if committed by an adult, would constitute the designated felony of
trafficking in methamphetamine in violation of OCGA § 16-13-31 (c). He argues that
the order must be reversed because the delinquency petition alleged that he
participated in the delivery of a certain amount of methamphetamine but the state
proved only that he participated in the delivery of that amount of a methamphetamine
mixture. Although there is a split of authority in this Court regarding whether such
a distinction constitutes a fatal variance requiring reversal, the Supreme Court of
Georgia, addressing a different controlled substances statute, has followed the line
of authority holding that this distinction is not a fatal variance. Following our Supreme Court’s reasoning, we find that there was no fatal variance requiring reversal
in this case, and we affirm.
In a delinquency petition, the state accused S. C. P. of
deliver[ing] and distribut[ing] more than 400 grams of a substance categorized as Schedule II by OCGA § 16-13-26, contrary to the laws of this [s]tate, . . . TO WIT: . . . in concert with another deliver[ing] and distribut[ing] more than one pound of methamphetamine to a confidential informant, a violation of [OCGA §] 16-13-31 (e).
The petition also notified S. C. P. that an adjudication of delinquency on this count
would be a designated felony requiring that he be placed in restrictive custody. See
OCGA § 15-11-63.
The evidence at the delinquency hearing, viewed in the light most favorable to
the disposition, In the Interest of J. R., 300 Ga. App. 422 (685 SE2d 397) (2009),
showed that on August 3, 2010, S. C. P. delivered to a confidential informant 445.9
grams of a substance that tested positive for methamphetamine. This act constituted
trafficking in methamphetamine under OCGA § 16-13-31 (e), which pertinently
provides that a person commits the felony offense of trafficking if that person
“knowingly . . . delivers[ ] . . . 28 grams or more of methamphetamine, amphetamine,
or any mixture containing either methamphetamine or amphetamine, as described in
2 Schedule II, in violation of this article.” OCGA § 16-13-31 (e) does not contain a
purity requirement for the trafficking of methamphetamine or amphetamine. See
generally Hardin v. State, 277 Ga. 242, 243 (2) (587 SE2d 634) (2003) (addressing
legislature’s decision to treat methamphetamine trafficking differently from cocaine
trafficking in this regard).
Nevertheless, S. C. P. argues that, given the allegations in the delinquency
petition, the state was required to prove the purity or composition of the substance.
He essentially argues that there was a fatal variance between the delinquency
petition’s allegations and the hearing evidence, because the state proved only that S.
C. P. delivered a mixture containing some amount of methamphetamine. We have
applied the fatal variance rule to delinquency proceedings. See, e.g., In the Interest
of J. H. M., 295 Ga. App. 483, 484 (672 SE2d 411) (2008); In the Interest of B. A. C.,
289 Ga. App. 588, 588-589 (1) (657 SE2d 652) (2008).
In support of his argument, S. C. P. points to Elrod v. State, 269 Ga. App. 112
(603 SE2d 512) (2004), which concerned a charge that the defendant violated OCGA
§ 16-13-31 (e) by possessing more than 28 grams of amphetamine. Evidence was
presented that the substance at issue weighed more than 28 grams and tested positive
for amphetamine, but no evidence was presented concerning the purity or
3 composition of the substance. Elrod, supra at 112-113 (1). We held this evidence to
be insufficient to show that the defendant was in possession of 28 grams or more of
amphetamine as charged in the indictment. Id. at 113 (1). In so holding, we noted that
OCGA § 16-13-31 (e) sets forth two methods of committing this offense – “by
possessing 28 grams or more of amphetamine or by possessing 28 grams or more of
any mixture containing amphetamine” – and we cited the rule that “[w]here . . . the
indictment alleges that the crime was committed by one method, the [s]tate is required
by the indictment to prove commission of the crime by that particular method.”
(Citations omitted.) Elrod, supra at 112 (1). We reached the same conclusion in
Daniel v. State, 251 Ga. App. 792, 792-793 (555 SE2d 154) (2001).
But another line of authority holds that this variance is not fatal because OCGA
§ 16-13-31 (e) treats equally the substances of methamphetamine, amphetamine, and
a mixture containing either methamphetamine or amphetamine. In Sims v. State, 258
Ga. App. 536 (574 SE2d 622) (2002), the defendant was charged with violating
OCGA § 16-13-31 (e) by “possessing more than 200 grams of amphetamine,” but the
trial evidence showed that the defendant possessed more than 200 grams of a mixture
of amphetamine and methamphetamine. Sims, 258 Ga. App. at 536 (1). Although the
defendant argued that this constituted a fatal variance, we held that “any variance in
4 this case between the allegations of the indictment and the proof at trial [was] not
fatal” and that such a variance would not subject the defendant to the dangers against
which the fatal variance rule protects. Id. at 537 (1). In so holding, we noted “that
OCGA § 16-13-31 (e) treats amphetamine and a mixture containing amphetamine
equally.” Id. Other decisions of this court have reached similar conclusions based on
the Code section’s equal treatment of the substances. See, e.g., Howard v. State, 291
Ga. App. 289, 292 (2) (661 SE2d 644) (2008) (finding no fatal variance where
indictment alleged possession of methamphetamine but state instead proved
possession of amphetamine; citing among reasons for this finding that “the statute
under which [the defendants] were charged and other statutes dealing with both
amphetamine and methamphetamine[ ] treat the two drugs equally”) (citations
omitted); Emilio v. State, 257 Ga. App. 49, 51-52 (2) (570 SE2d 372) (2002) (finding
that OCGA § 16-13-31 (e) “does not establish two different methods of trafficking
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WHOLE COURT
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 7, 2013
In the Court of Appeals of Georgia A12A2540. IN THE INTEREST OF S. C. P., a child.
MCFADDEN, Judge.
S. C. P. appeals the juvenile court’s order placing him in restrictive custody for
acts that, if committed by an adult, would constitute the designated felony of
trafficking in methamphetamine in violation of OCGA § 16-13-31 (c). He argues that
the order must be reversed because the delinquency petition alleged that he
participated in the delivery of a certain amount of methamphetamine but the state
proved only that he participated in the delivery of that amount of a methamphetamine
mixture. Although there is a split of authority in this Court regarding whether such
a distinction constitutes a fatal variance requiring reversal, the Supreme Court of
Georgia, addressing a different controlled substances statute, has followed the line
of authority holding that this distinction is not a fatal variance. Following our Supreme Court’s reasoning, we find that there was no fatal variance requiring reversal
in this case, and we affirm.
In a delinquency petition, the state accused S. C. P. of
deliver[ing] and distribut[ing] more than 400 grams of a substance categorized as Schedule II by OCGA § 16-13-26, contrary to the laws of this [s]tate, . . . TO WIT: . . . in concert with another deliver[ing] and distribut[ing] more than one pound of methamphetamine to a confidential informant, a violation of [OCGA §] 16-13-31 (e).
The petition also notified S. C. P. that an adjudication of delinquency on this count
would be a designated felony requiring that he be placed in restrictive custody. See
OCGA § 15-11-63.
The evidence at the delinquency hearing, viewed in the light most favorable to
the disposition, In the Interest of J. R., 300 Ga. App. 422 (685 SE2d 397) (2009),
showed that on August 3, 2010, S. C. P. delivered to a confidential informant 445.9
grams of a substance that tested positive for methamphetamine. This act constituted
trafficking in methamphetamine under OCGA § 16-13-31 (e), which pertinently
provides that a person commits the felony offense of trafficking if that person
“knowingly . . . delivers[ ] . . . 28 grams or more of methamphetamine, amphetamine,
or any mixture containing either methamphetamine or amphetamine, as described in
2 Schedule II, in violation of this article.” OCGA § 16-13-31 (e) does not contain a
purity requirement for the trafficking of methamphetamine or amphetamine. See
generally Hardin v. State, 277 Ga. 242, 243 (2) (587 SE2d 634) (2003) (addressing
legislature’s decision to treat methamphetamine trafficking differently from cocaine
trafficking in this regard).
Nevertheless, S. C. P. argues that, given the allegations in the delinquency
petition, the state was required to prove the purity or composition of the substance.
He essentially argues that there was a fatal variance between the delinquency
petition’s allegations and the hearing evidence, because the state proved only that S.
C. P. delivered a mixture containing some amount of methamphetamine. We have
applied the fatal variance rule to delinquency proceedings. See, e.g., In the Interest
of J. H. M., 295 Ga. App. 483, 484 (672 SE2d 411) (2008); In the Interest of B. A. C.,
289 Ga. App. 588, 588-589 (1) (657 SE2d 652) (2008).
In support of his argument, S. C. P. points to Elrod v. State, 269 Ga. App. 112
(603 SE2d 512) (2004), which concerned a charge that the defendant violated OCGA
§ 16-13-31 (e) by possessing more than 28 grams of amphetamine. Evidence was
presented that the substance at issue weighed more than 28 grams and tested positive
for amphetamine, but no evidence was presented concerning the purity or
3 composition of the substance. Elrod, supra at 112-113 (1). We held this evidence to
be insufficient to show that the defendant was in possession of 28 grams or more of
amphetamine as charged in the indictment. Id. at 113 (1). In so holding, we noted that
OCGA § 16-13-31 (e) sets forth two methods of committing this offense – “by
possessing 28 grams or more of amphetamine or by possessing 28 grams or more of
any mixture containing amphetamine” – and we cited the rule that “[w]here . . . the
indictment alleges that the crime was committed by one method, the [s]tate is required
by the indictment to prove commission of the crime by that particular method.”
(Citations omitted.) Elrod, supra at 112 (1). We reached the same conclusion in
Daniel v. State, 251 Ga. App. 792, 792-793 (555 SE2d 154) (2001).
But another line of authority holds that this variance is not fatal because OCGA
§ 16-13-31 (e) treats equally the substances of methamphetamine, amphetamine, and
a mixture containing either methamphetamine or amphetamine. In Sims v. State, 258
Ga. App. 536 (574 SE2d 622) (2002), the defendant was charged with violating
OCGA § 16-13-31 (e) by “possessing more than 200 grams of amphetamine,” but the
trial evidence showed that the defendant possessed more than 200 grams of a mixture
of amphetamine and methamphetamine. Sims, 258 Ga. App. at 536 (1). Although the
defendant argued that this constituted a fatal variance, we held that “any variance in
4 this case between the allegations of the indictment and the proof at trial [was] not
fatal” and that such a variance would not subject the defendant to the dangers against
which the fatal variance rule protects. Id. at 537 (1). In so holding, we noted “that
OCGA § 16-13-31 (e) treats amphetamine and a mixture containing amphetamine
equally.” Id. Other decisions of this court have reached similar conclusions based on
the Code section’s equal treatment of the substances. See, e.g., Howard v. State, 291
Ga. App. 289, 292 (2) (661 SE2d 644) (2008) (finding no fatal variance where
indictment alleged possession of methamphetamine but state instead proved
possession of amphetamine; citing among reasons for this finding that “the statute
under which [the defendants] were charged and other statutes dealing with both
amphetamine and methamphetamine[ ] treat the two drugs equally”) (citations
omitted); Emilio v. State, 257 Ga. App. 49, 51-52 (2) (570 SE2d 372) (2002) (finding
that OCGA § 16-13-31 (e) “does not establish two different methods of trafficking
based on the purity of the drug” but instead treats pure amphetamine and a mixture
containing amphetamine equally; thus where the indictment alleged trafficking in
amphetamine and there was proof that the substance at issue tested positive for
amphetamine, the trial court’s instruction that trafficking may be accomplished by
possessing amphetamine or a mixture containing amphetamine did not create the
5 possibility that the defendant was convicted of an offense not charged) (footnote
omitted); Bellamy v. State, 243 Ga. App. 575, 579-580 (2) (530 SE2d 243) (2000)
(finding no fatal variance between indictment charging that defendant trafficked a
mixture containing methamphetamine and proof that substance at issue was pure
methamphetamine, because OCGA § 16-13-31 (e) “treats pure methamphetamine and
a mixture containing methamphetamine equally”).
Pertinently, the Supreme Court of Georgia has cited the Sims rationale to find
no fatal variance in a case in which the defendant was accused of violating another
criminal statute involving a controlled substance. In Rochefort v. State, 279 Ga. 738
(620 SE2d 803) (2005), the Court noted that
for purposes of [the relevant Code section], “ephedrine” and “pseudoephedrine” are synonymous, so that the one includes the other. . . . Therefore, there was no fatal variance between the accusation charging possession of ephedrine and the proof at trial showing possession of pseudoephedrine. See Sims v. State, 258 Ga. App. 536, 537 (1) (574 SE2d 622) (2002) (no fatal variance where statute treats two substances equally).
Rochefort, supra at 741 (2).
Faced with the choice in this case of whether to follow the line of authority
represented by Sims, or the line of authority represented by Elrod and Daniel, we
6 must take the lead of our Supreme Court and follow Sims. Because
“methamphetamine” and a “mixture containing methamphetamine” are synonymous
for purposes of OCGA § 16-13-31 (e), there was no fatal variance between the
delinquency petition charging delivery of a certain amount of methamphetamine and
the proof at the hearing showing delivery of that amount of a mixture containing
methamphetamine. See Rochefort, 279 Ga. at 741 (2); Sims, 258 Ga. App. at 537 (1).
To the extent this holding conflicts with the holdings set forth in Elrod, supra, 269
Ga. App. 112, and Daniel, supra, 251 Ga. App. 792, and their progeny, those
decisions are hereby overruled.
Judgment affirmed. Ellington, C.J., concurs. Barnes, P. J., Phipps, P. J.,
Miller, P. J., and Doyle, P.J., concur. Andrews, Dillard, Boggs, Ray, Branch and
McMillian, JJ., concur.