☢ test - Í
mathematical certainty. In fact, an estimate of weight based upon reasonable factors can suffice. See Evans v. State, 176 Ga.App. 818, 822(2) (338 S.E.2d 48) (1985) (gross weight of marijuana could be estimated based on number of and maturity of marijuana plants seized, the photographic evidence, and expert and eyewitness testimony submitted at trial). Here, it was not unreasonable for the court to conclude that two lightweight nylon duffel bags and some plastic wrap weighed less than 40 pounds. Consequently, we find that a rational trier of fact could have found proof beyond a reasonable doubt that the amount of marijuana seized from Trujillo was at least the equivalent of the amount charged, ten pounds. Id.” Davis v. State, 285 Ga.App. 315, 645 S.E.2d 753 (May 9, 2007). Defendant could be charged with trafficking based on weight of three packages of cocaine although only one of the packages was actually tested; “the similar appearance of all three packages authorized the jury to conclude that they each contained cocaine. See Pitts v. State, 260 Ga.App. 553, 556(2)(b) (580 S.E.2d 618) (2003) (expert testimony that one bag contained cocaine was sufficient to sustain conviction for trafficking notwithstanding the fact that two other bags were not tested).” State v. Carden, 281 Ga.App. 886, 637 S.E.2d 493 (October 16, 2006). OCGA § 16-13-31(g)(2) authorizes reduction in minimum sentence for drug trafficking provided in OCGA § 16-13-31(e)(1) where the defendant has rendered “substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators or principals.” Evidence here authorized trial court’s finding that defendant “had rendered substantial assistance in the identification of her supplier,” although that assistance did not lead to the supplier’s arrest. Trial court’s sentence was thus not void. State v. Andrews, 278 Ga.App. 899, 630 S.E.2d 139 (April 14, 2006). Subsequent appeal of Andrews (December 28, 2004), below. Trial court erred in failing to impose mandatory $200,000 fine for trafficking in cocaine, 28 grams or more but less than 200 grams, pursuant to OCGA § 16-13-31(a)(1)(A). Andrews v. State, 271 Ga.App. 162, 609 S.E.2d 119 (December 28, 2004). OCGA § 16-13-31 establishes a mandatory minimum sentence of 10 years to serve for trafficking in cocaine, which sentence may not be probated. Subsection (g)(1) prohibits withholding or deferring adjudication of guilt in such cases; thus, defendant who pled guilty to cocaine trafficking was not eligible for first offender treatment, and trial court erred in imposing sentence of six years to serve with four years probation. Clark v. State, 266 Ga.App. 334, 596 S.E.2d 783 (March 17, 2004). “OCGA § 16-13-31(a)(1) defines the crime of trafficking in cocaine as knowingly possessing ‘28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine…’ Clark was indicted for knowingly possessing ‘more than 400 grams of a mixture containing 10% or more of cocaine….’ The absence of the word ‘purity’ from the indictment does not render the indictment void.” Pruitt v. State, 264 Ga.App. 44, 589 S.E.2d 864 (November 10, 2003). 1. Defendant could not be convicted of conspiracy to traffic in methamphetamine where evidence showed repeated purchases by defendant of an ounce or less over a period of months, with no agreement between buyer and seller to re-distribute the drugs. Statute on trafficking in methamphetamine requires minimum of 28 grams. Two problems with state’s theory: first, the separate transactions could not be aggregated, and no single transaction exceeded 28 grams. 2. Status as buyer and seller is not enough to establish a conspiracy to traffic. “[T]hey are not acting together to commit the same crime. ‘In such circumstance, the buyer’s purpose is to buy; the seller’s purpose is to sell. There is no joint objective.’ In other words, they are not conspiring to buy the drugs together or to sell the drugs together.” Accord, Peacock (January 6, 2010), above (street-level seller who never dealt with 28 grams in a single transaction couldn’t be charged with trafficking based on distributor’s possession of more than 28 grams); Darville v. State , 289 Ga. 698, 715 S.E.2d 110 (September 12, 2011). Lumpkin v. State, 245 Ga.App. 627, 538 S.E.2d 514 (August 21, 2000). Conviction for cocaine trafficking reversed; trial court erred by refusing to charge on possession with intent to distribute as a lesser-included offense. “The State's forensic expert, Butrum, testified that the amount of cocaine in the ziplock bag was 28.0 grams, which is exactly the statutory minimum amount for the offense of trafficking. Thus, if the jury did not believe that Butrum's testimony showed beyond a reasonable doubt that the amount of cocaine was 28.0 grams, it could have found Lumpkin guilty of the lesser possession charge.” Officer’s testimony suggested that officer’s field test showed less than 28 grams. “From this testimony, the jury could have inferred that Frey weighed the cocaine and found it to be less than 28 grams. Accordingly, there was evidence – however slight – that Lumpkin was guilty of simple possession rather than trafficking.” Snoke v. State, 237 Ga.App. 686, 516 S.E.2d 541 (April 16, 1999). Where defendant was charged with both possession
Made with FlippingBook Ebook Creator