The State v. Wright , 333 Ga. App. 124 ( 2015 )

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, JJ.
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.
http://www.gaappeals.us/rules/
July 13, 2015
In the Court of Appeals of Georgia
A15A0653. THE STATE v. WRIGHT.
MCFADDEN, Judge.
The state appeals from the trial court’s grant of a general demurrer against an
indictment’s count alleging that Tommy Lugene Wright committed the offense of
possession of a controlled substance in violation of OCGA § 16-13-30 (a). We affirm,
because the indictment does not identify a substance listed as a controlled substance
under the statute.
“A general demurrer challenges the sufficiency of the substance of the
indictment[.]” Bryant v. State, 320 Ga. App. 838, 841 (3) (740 SE2d 772) (2013)
(citation omitted). “An indictment shall be deemed sufficiently technical and correct
to withstand a general demurrer if it ‘states the offense in the terms and language of
this Code or so plainly that the nature of the offense charged may easily be
understood by the jury.’” State v. Corhen, 306 Ga. App. 495, 497 (700 SE2d 912)
(2010) (quoting OCGA § 17-7-54 (a)).
[I]f an accused would be guilty of the crime charged if the facts as
alleged in the indictment are taken as true, then the indictment is
sufficient to withstand a general demurrer; however, if an accused can
admit to all of the facts charged in the indictment and still be innocent
of a crime, the indictment is insufficient and is subject to a general
demurrer.
Id. (citation omitted). This presents a question of law that we review de novo. State
v. McDowell, 301 Ga. App. 751 (688 SE2d 417) (2009).
The indictment in this case alleged that Wright “unlawfully possess[ed] and
[had] under [his] control 3, 4-methylenedioxy-N-ethylcathinone (ethylone), a
substituted 2-aminopropan-1-one, a Schedule 1 controlled substance, in violation of
OCGA § 16-13-30 (a)[.]” This description of the substance is not sufficient to show
that it is a controlled substance within the meaning of the statute. Cf. Nixdorf v. State,
226 Ga. 615, 617 (1) (a) (176 SE2d 701) (1970) (considering, in ruling on demurrer,
whether allegations in indictment were sufficient to show defendant’s office was
“private place” within meaning of statute establishing offense of eavesdropping). The
substance “3, 4-methylenedioxy-N-ethylcathinone (ethylone)” does not appear by
2
name within the statutory list of Schedule 1 controlled substances. See OCGA § 16-
13-25. The state argues that the phrase “a substituted 2-aminopropan-1-one” indicates
that the substance falls under OCGA § 16-13-25 (12) (L), which in pertinent part
identifies as a Schedule 1 controlled substance “[a]ny compound . . . structurally
derived from 2-aminopropan-1-one by substitution at the 1-position with either
phenyl, naphthyl, or thiophene ring systems[.]” But the indictment’s language does
not clearly refer to a substance under OCGA § 16-13-25 (12) (L). Its use of the term
“substituted” is ambiguous and could be construed to include compounds that do not
match the precise definition of the statute and, thus, are not controlled substances. So
construed, the indictment would not charge a crime. See generally Tibbs v. State, 211
Ga. App. 250, 251 (1) (438 SE2d 706) (1993) (indictment that alleged defendant had
violated statute pertaining to “dangerous drugs” but identified substances that were
not “dangerous drugs” but rather “controlled substances” failed to state any crime and
would have been subject to demurrer had defendant timely filed such demurrer).
“An indictment is to be strictly construed against the state when a demurrer has
been filed against it.” Jack Goger, Daniel’s Ga. Criminal Trial Practice, § 13-4 (2014-
2015 ed.) (citations omitted). Because this indictment can be construed such that
Wright would not be guilty of the crime of possession of a controlled substance if the
3
facts as alleged in the indictment were taken as true, we find no error in the trial
court’s grant of the general demurrer to Wright on that count.
Judgment affirmed. Ellington, P. J., concurs; Dillard, J., concurs in the
judgement only.
4