Daniel v. State , 251 Ga. App. 792 ( 2001 )

Smith, Presiding Judge,

concurring specially.

I agree with the result reached by the majority opinion. I write separately to point out that, on first reading, the facts of this case and those in Barnett v. State, 204 Ga. App. 491 (420 SE2d 43) (1992), on one hand, and the circumstances in Bellamy v. State, 243 Ga. App. 575 (530 SE2d 243) (2000), and Belcher v. State, 161 Ga. App. 442 (288 SE2d 299) (1982), on the other, seem to create some tension with one another. In my view, the narrow distinctions between these cases warrant some expanded discussion.

Decided October 9, 2001. Donna A. Seagraves, for appellant. Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

As in Barnett, although the relevant trafficking statute describes two methods of committing the offense, the indictment here charged that the offense was committed in one specific manner. The State therefore was required to prove that the offense occurred as charged in the indictment. See Barnett, supra at 498. In Bellamy, supra, however, we made the broad statement that OCGA § 16-13-31 (e) “treats pure methamphetamine and a mixture containing methamphetamine equally.” Id. at 579 (2). I do not believe this statement materially conflicts with Barnett or our holding in this case. In Bellamy, unlike the facts here, the defendants were charged with trafficking in a mixture containing methamphetamine. The evidence showed that they were trafficking in pure methamphetamine. It would have been absurd to hold that a fatal variance between the indictment and proof at trial existed in such a circumstance.

Also, this case is distinguished from Belcher, supra. There, we stated that “[a] specific quantity of cocaine is not required to be present in the mixture in order to constitute a violation of’ the trafficking statute. Id. at 443 (1). But in Belcher, unlike this case and unlike Barnett, it appears that the indictment charged the defendant with violating the statute by either of two methods. Consequently, our statement that a specific amount of cocaine was not required was correct in that circumstance. The State could have drafted the indictment here to allege the crime of trafficking in a controlled substance by two different methods. It did not, and the proof at trial simply did not show that Daniel committed the crime as charged in the indictment.