☢ test - Í

Thurman v. State, 295 Ga.App. 616, 673 S.E.2d 1 (December 30, 2008). Conviction reversed; evidence was insufficient to establish criminal attempt to manufacture methamphetamine. Evidence showed, at most, preparation. “‘In order to constitute the offense of attempt to commit a crime, the accused must do some act towards its commission. Commission means the act of committing, doing, or performing; the act of perpetrating. Webster's Dict. Mere acts of preparation, not proximately leading to the consummation of the intended crime, will not suffice to establish an attempt to commit it ... Between the preparation for the attempt and the attempt itself there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made.’ Groves v. State, 116 Ga. 516, 516-517 (42 S.E. 755) (1902).” Defendants here were found in possession of “only a small portion of the ingredients and materials necessary to manufacture methamphetamine. Likewise, the quantity of each item found in the truck constituted only a small portion of the amount of the ingredients and materials needed to manufacture methamphetamine.” Distinguished, see Ogburn (February 20, 2009), above. Womble v. State, 290 Ga.App. 768, 660 S.E.2d 848 (April 4, 2008). Defendant’s “convictions for possession of methamphetamine (count 4) and criminal attempt to manufacture methamphetamine (count 3) merged as a matter of fact, and that he cannot be convicted and sentenced for both offenses. Curtis v. State, 275 Ga. 576 (571 S.E.2d 376) (2002); Bryan v. State, 271 Ga.App. 60, 64-65 (608 S.E.2d 648) (2004).” Both offenses related to the same substance. Accord, Preval v. State , 302 Ga.App. 785, 692 S.E.2d 51 (March 10, 2010) (convictions for trafficking, manufacturing same sample of marijuana should have merged). McWhorter v. State, 275 Ga.App. 624, 621 S.E.2d 571 (September 27, 2005). 1. “There is no merit in McWhorter’s argument that the state failed to present evidence from which the jury would have been authorized to conclude that she committed an overt act to effect the crime of methamphetamine manufacturing. The evidence showed that when the officers arrived at Tripp’s residence, methamphetamine was being manufactured inside; that an officer observed McWhorter handling a wet glass Mason jar while standing in the immediate vicinity of numerous other wet glass jars; and that glassware, particularly Mason jars, is commonly used in the manufacture of methamphetamine. From this evidence, the jury was authorized to find beyond a reasonable doubt that McWhorter had conspired to manufacture methamphetamine and that her handling of the glassware furthered that conspiracy. [Cits.]” 2. Under OCGA § 16-13-33, conspiracy to violate the Georgia Controlled Substance Act carries the same maximum sentence as the violation itself, unlike other conspiracy offenses generally, which carry a maximum sentence “one-half the maximum period of time for which [s]he could have been sentenced if [s]he had been convicted of the crime conspired to have been committed....’” under OCGA § 16-4-8. Trial court here had power to sentence defendant for maximum sentence allowed for manufacturing methamphetamine (30 years) based on her conviction for conspiracy. Kirby v. State, 275 Ga.App. 216, 620 S.E.2d 459 (August 24, 2005). “A person who owns or leases premises is presumed to be in control and possession of any contraband found therein. [Cits.] Although this presumption may be rebutted, whether the presumption has been rebutted is a question for the jury. [Cit.] Here, the evidence shows that Kirby leased the house in which the manufacturing was taking place. The record also demonstrates that the manufacturing operation, which was spread throughout the house, created a strong chemical smell that was immediately apparent upon entering the home. Moreover, Kirby tested positive for methamphetamine in his system, which circumstantially links him to the manufacturing process and undermines his contention that he was unaware of the activity. [Cit.] Under these circumstances, the jury was authorized to conclude that Kirby was a party to the wide-spread manufacturing process that was taking place in his house. [Footnote: See Meridy v. State, 265 Ga.App. 440, 441-442(1) (594 S.E.2d 378) (2004) (‘A person may be convicted as a party to a crime if the evidence shows he directly committed the crime, intentionally aided or abetted the commission of the crime or intentionally advised, encouraged, hired, counseled or procured another to commit the crime.’). Thus, even if Kirby did not actively participate in the manufacturing process, he may nonetheless be found guilty for aiding in the manufacturing by knowingly providing the location.]” Murrell v. State, 273 Ga.App. 735, 615 S.E.2d 780 (June 6, 2005). “Neither this Court nor the Georgia Supreme Court has directly addressed the definition of the term ‘manufacture’ in the context of a case involving the charge of manufacturing methamphetamine. Likewise, neither court has ever addressed the issue of the minimum amount of evidence needed to support a conviction for manufacturing methamphetamine. However, contrary to Murrell’s argument, we do not believe that a person needs to possess the final product, or all the components of the final product, in order to engage ‘indirectly’ in the ‘production, preparation, propagation, compounding, conversion, or processing of a controlled substance.’ Here, the evidence shows that Murrell possessed a combination of items and substances that are generally found together solely for the purpose of manufacturing methamphetamine. We conclude that when a defendant possesses