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Evans v. State

The State was not required to show that the controlled substance the defendant allegedly possessed fell specifically within Schedule V of the Georgia Controlled Substances Act as alleged in the indictment, since reference in an indictment to a particular Schedule of the Georgia Controlled Substances Act is mere surplusage.

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Following a jury trial, Nicholas Evans was convicted of possession of codeine, OCGA § 16-13-30 a, and possession of less than one ounce of marijuana, OCGA § 16-13-30 j. Evans argues on appeal that the trial court erred in i denying his motion for a directed verdict of acquittal, ii instructing the jury that it is unlawful to possess any quantity of codeine, iii refusing his request to charge the jury on “Schedule V” codeine, and iv denying his motion to dismiss the indictment. He also contends that because the State failed to timely produce the chemist’s laboratory test results the trial court erred in denying his motion to dismiss and in admitting certain evidence. We find no error and affirm.

Viewed in the light most favorable to the verdict,1 the evidence shows that on January 27, 2012, an officer with the Gwinnett County Police Department was dispatched to investigate a report of illegal drug activity at the Deluxe Extended Stay Motel in Duluth. The officer followed the odor of marijuana to a motel room and knocked on the door. The officer knocked a second time, and Evans opened the door. The officer saw three other people inside the room.

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