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had ingested, and she was therefore not prejudiced or misled.” Accord, Buchanan v. State , 264 Ga.App. 148, 589 S.E.2d 876 (November 14, 2003). Sims v. State, 258 Ga.App. 536, 574 S.E.2d 622 (November 21, 2002). Where defendant charged with possession of amphetamine, proof that substance was a mixture of amphetamine and methamphetamine was not a fatal variance. “The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense. Clearly, the variance complained of here, would not subject the accused to either of these dangers.” Accord, Howard v. State , 291 Ga.App. 289, 661 S.E.2d 644 (April 24, 2008) (methamphetamine alleged, amphetamine proven; defendants and counsel were aware of the misnomer prior to trial and suffered no surprise or prejudice to their defense, as the defense was based on lack of possession, not nature of substance). Bellamy v. State, 242 Ga.App. 575, 530 S.E.2d 243 (February 29, 2000). Methamphetamine trafficking and related convictions affirmed; trial court properly denied motion for directed verdict, claiming fatal variance between proof and indictment. Indictment charged defendants with possession of a substance containing a mixture of methamphetamine; proof was unclear whether the substance was a mixture or pure methamphetamine. Court of Appeals calls this claim of fatal variance “absurd.” “The statute under which the defendants were charged, OCGA § 16–13–31(e), treats pure methamphetamine and a mixture containing methamphetamine equally. Accordingly, any variance in proof at trial regarding whether the substance was a mixture containing methamphetamine or pure methamphetamine is not fatal. See Belcher v. State, 161 Ga.App. 442, 443(1), 288 S.E.2d 299 (1982).” 12. DESCRIPTION OF PROPERTY STOLEN OR DAMAGED/OWNERSHIP Leonard v. State, 326 Ga.App. 209, 756 S.E.2d 293 (March 13, 2014). Shoplifting conviction affirmed; no fatal variance between indictment, alleging theft of a Dell Streak 7 cell phone, and evidence, showing theft of a Dell Streak 7 tablet. The tablet had a phone number and an app for making phone calls. “[T]he variance between the indictment and the evidence is not fatal to the conviction because the allegations in the indictment definitely informed Leonard as to the charges against him so as to enable him to present his defense and were adequate to protect him against another prosecution for the same offense.” Cooks v. State, 325 Ga.App. 426, 750 S.E.2d 765 (November 18, 2013). Physical precedent only. Robbery conviction reversed; trial court erred by denying general demurrer. Indictment failed to allege that defendant took property of another from victim. Distinguishing cases where language of indictment implied that property taken belonged to another: Collis v. State, 252 Ga.App. 659, 662(2), 556 S.E.2d 221 (2001) (taking of “a United Parcel Service truck”); Thomas v. State, 314 Ga.App. 124, 126(2), 723 S.E.2d 5 (2012) (alleging that the property taken “was the property of the respective businesses where the robberies occurred.”). Davis v. State, 308 Ga.App. 7, 706 S.E.2d 710 (February 17, 2011). Convictions for burglary, aggravated assault and obstruction affirmed; no fatal variance in proof of burglary charge, though indictment alleged that building was a “dwelling place,” when in fact building had suffered fire damage and victim was not then living in it. “Here, the burglary count of the indictment correctly specified the location of the building unlawfully entered and also accurately identified the date of the crime. ‘[These] allegations definitely informed [Davis] as to the charge[ ] against him so as to enable him to present his defense and not to be taken by surprise. The allegations were further adequate to protect [Davis] against another prosecution for the same offense. The indictment's description of the structure as a dwelling house as opposed to a building did not mislead [Davis] in such a manner that impeded his ability to present a subsequent defense or surprise him at trial, and he cannot be subjected to a subsequent prosecution for the burglary of the building in question. Thus, [Davis] has failed to show that any variance was fatal.’ Sanders [ v. State, 293 Ga.App. 534, 538(2)(c), 667 S.E.2d 396 (2008)] (footnote omitted); see Weeks [ v. State, 274 Ga.App. 122, 125-126, 616 S.E.2d 852 (2005)]; Edward v. State, 261 Ga.App. 57, 59(2), 581 S.E.2d 691 (2003) (variance was not fatal where the indictment charged the correct address of the burglary, but may have misidentified the house's owner).” Accord, Smarr v. State , 317 Ga.App. 584, 732 S.E.2d 110 (September 6, 2012) (“the State's failure to prove ownership of a burglarized dwelling house or building—even if such ownership has been alleged—does not render the variance fatal, so long as the evidence otherwise establishes that the dwelling house or building did not belong to the defendant and his entry lacked authority.”). Brown v. State, 302 Ga.App. 641, 692 S.E.2d 9 (February 16, 2010). No fatal variance where indictment alleged theft of “currency,” but actual theft was of government funds by fraudulent purchase order, not in the form of currency.
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