Daniel v. State

The evidence was insufficient to show that defendant was in possession of 28 grams or more of amphetamine because the state crime lab chemist testified that the 28.8 grams of material seized during a traffic stop was composed of a mixture of stuff.

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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 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 was 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 The 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 v. State

The evidence was insufficient to show that defendant was in possession of 28 grams or more of amphetamine because the state crime lab chemist testified that the 28.8 grams of material seized during a traffic stop was composed of a mixture of stuff.

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