☢ test - Í

(2010)]; Barnes, supra. Accordingly, the judgment of conviction and sentence on this count must be vacated.” 4. MANUFACTURING CONTROLLED SUBSTANCES Franks v. State, 325 Ga.App. 488, 758 S.E.2d 604 (December 16, 2013). 1. Evidence supported conviction for attempted trafficking by manufacturing methamphetamine. Contrary to defendant’s argument, preparations to manufacture may amount to an attempt. “Here, Long and Franks were charged with trafficking by knowingly manufacturing a mixture containing less than 200 grams of methamphetamine. Grossman testified that the items seized appeared to have been used in the red phosphorous process for manufacturing methamphetamine.[fn] He said the process was complete and the lab disassembled, and the jury could have found that the items seized evidenced various steps in the manufacturing process. For example, a bug sprayer had been converted into a gas generator and the hose leading from it was stained red, probably from contact with red phosphorous or iodine according to Grossman; liquids had been poured together and had apparently separated again into various levels; a paste containing what appeared to be red phosphorous was created; plastic jugs contained residue and one appeared melted; and another had been converted into a funnel. A chemical odor associated with meth labs lingered around the house and methamphetamine residue was found on a spoon and the light bulb smoking device near the meth lab components. We find that this and the other evidence at trial was sufficient to support a jury finding that Franks and Long had taken a substantial step toward manufacturing methamphetamine. See Womble v. State, 290 Ga.App. 768, 770–771(2), 660 S.E.2d 848 (2008) (processing and possession of methamphetamine oil constituted substantial step toward commission of manufacturing methamphetamine); Drammeh v. State, 285 Ga.App. 545, 547–548(1), 646 S.E.2d 742 (2007) (circumstantial evidence sufficient to establish substantial step toward attempted marijuana trafficking where defendant merely entered a car containing large quantity of marijuana that would have been detectable from its odor and defendant refused to provide information to police). Compare Thurman v. State, 295 Ga.App. 616, 618(1), 673 S.E.2d 1 (2008) (physical precedent only) (reversing conviction for criminal attempt where defendants charged with attempting to manufacture methamphetamine in the future and during a traffic stop of defendants' car, police smelled odor associated with meth labs and search of car revealed only an unopened bottle of Heet, one pack of cold pills containing pseudoephedrine, a large unopened bottle of iodine, and some plastic tubing).” 2. Trial court properly declined to charge on alleged lesser-included offenses which included elements not included in trafficking charges. “OCGA § 16- 13-32.3 requires proof that the trafficking statute does not – the possession of pseudoephedrine; neither the trafficking statute nor the indictment makes any reference to that drug. Similarly, we find that OCGA § 16-13-32.2 [possession of a drug-related object] also requires proof of an element not required for the crime of trafficking as charged in this case. The trafficking statute, as indicted, does not require proof that a defendant possessed drug-related objects with the intent to use them for manufacture. Therefore, we find that the crimes set out in OCGA §§ 16-13-30.3(b)(2) and 16-13-32.2(a) are not lesser included offenses of the crime of trafficking in methamphetamine as indicted in this case.” Poole v. State, 302 Ga.App. 464, 691 S.E.2d 317 (February 23, 2010). Error but no harm where trial court refused “to charge the jury on manufacturing methamphetamine (OCGA § 16-13-30(a)) as a lesser included offense of trafficking methamphetamine (OCGA § 16-13-31(f)).” No harm because “there is no relevant distinction between the two statutes with regard to methamphetamine as applied to this case. The sole distinction is that OCGA § 16-13-31(f) prohibits the ‘knowing’ manufacture of methamphetamine, while OCGA § 16-13-30(b) prohibits the manufacture of a controlled substance. Here, the evidence clearly established that Poole manufactured methamphetamine, and Poole's admission that he was ‘cooking’ showed that he knowingly manufactured methamphetamine. Thus, the jury could have found Poole guilty of both offenses or not guilty of both; the evidence simply would not have supported a split verdict as to these two Code Sections. If the jury had found Poole guilty of both charges, the trial court would have been required to merge the lesser included charge of manufacturing methamphetamine into the greater offense of trafficking methamphetamine for sentencing purposes. See Wesson [ v. State, 279 Ga.App. 428, 433(4) (631 S.E.2d 451) (2006)]. Under these circumstances, the trial court's failure to charge the jury on OCGA § 16-13-30(b) was harmless. See Edwards [ v. State, 264 Ga. 131, 133 (442 S.E.2d 444) (1994)] (failure to charge lesser included offense harmless); Celestin v. State, 296 Ga.App. 727, 738(5) (675 S.E.2d 480) (2009) (same); Swanger v. State, 251 Ga.App. 182, 186(2) (554 S.E.2d 207) (2001) (same). We note that our holding in this case is limited to these particular Code Sections.” Also no violation of rule of lenity, which applies only where same conduct constitutes both a misdemeanor and a felony; here, both offenses were felonies. Ogburn v. State, 296 Ga.App. 254, 674 S.E.2d 101 (February 20, 2009). Evidence supported defendant’s conviction for attempted manufacture of methamphetamine. “Here, the jury could infer from Ogburn's possession of individually wrapped methamphetamine packages, together with large quantities of pseudoephedrine tablets and starter fluid, that he was attempting to manufacture methamphetamine. Distinguishing Thurman (December 30, 2008), below.