In the Interest of S. C. P.

739 S.E.2d 474, 320 Ga. App. 166
CourtCourt of Appeals of Georgia
DecidedMarch 7, 2013
DocketA12A2540
StatusPublished
Cited by1 cases

This text of 739 S.E.2d 474 (In the Interest of S. C. P.) 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
In the Interest of S. C. P., 739 S.E.2d 474, 320 Ga. App. 166 (Ga. Ct. App. 2013).

Opinion

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 distributing] 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 delivering] and distributing] more than one [167]*167pound 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 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 composition of the substance. Id. 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 [168]*168“[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.) Id. 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. Id. at 536 (1). Although the defendant argued that this constituted a fatal variance, we held that “any variance in 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

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Bluebook (online)
739 S.E.2d 474, 320 Ga. App. 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-s-c-p-gactapp-2013.