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Evans v. State

Court of Appeals of Georgia

December 5, 2014

EVANS
v.
THE STATE

Drug violation. Gwinnett Superior Court. Before Judge Hutchinson.

Judgment affirmed.

Michael B. King, for appellant.

Daniel J. Porter, District Attorney, Drew Unger, Assistant District Attorney, for appellee.

ELLINGTON, Presiding Judge., Phipps, C. J., and McMillian, J., concur.

OPINION

Page 822

Ellington, Presiding Judge.

Following a jury trial, Nicholas Evans was convicted of possession of codeine, OCGA § 16-13-30 (a),

Page 823

and possession of less than one ounce of marijuana, OCGA § 16-13-30 (j). Evans argues on appeal that the trial court erred in (i) denying his motion for a directed verdict of acquittal, (ii) instructing the jury that it is unlawful to possess any quantity of codeine, (iii) refusing his request to charge the jury on " Schedule V" codeine, and (iv) denying his motion to dismiss the indictment. He also contends that because the State failed to timely produce the chemist's laboratory test results the trial court erred in denying his motion to dismiss and in admitting certain evidence. We find no error and affirm.

Viewed in the light most favorable to the verdict,[1] the evidence shows that on January 27, 2012, an officer with the Gwinnett County police department was dispatched to investigate a report of illegal drug activity at the Deluxe Extended Stay Motel in Duluth. The officer followed the odor of marijuana to a motel room and knocked on [330 Ga.App. 242] the door. The officer knocked a second time, and Evans opened the door. The officer saw three other people inside the room.

When the officer asked about the odor of marijuana coming from the room, Evans acknowledged that they had been smoking marijuana, but that " [he had] flushed it." After Evans allowed the officer into the room, the officer noticed " a lot of over-the-counter cough syrup medication," as well as a small circular grinder. Evans admitted that the grinder was his and that there was marijuana inside. After confirming that there appeared to be marijuana inside the grinder, the officer placed Evans under arrest. During the subsequent search of Evans's person, the officer found a red bottle with a prescription on the label for a third party, F. S. According to the officer, the label on the bottle stated " Prometh Codeine." Evans was subsequently indicted for possession of codeine and for possession of less than an ounce of marijuana.

At trial, 71-year-old F. S. testified that she had been prescribed Prometh Codeine for her medical condition and that she had never given a prescription bottle in her name to anyone. F. S. had no first-hand knowledge as to how the bottle came to be in Evans's possession. A chemist with the Forensic Sciences Division of the Georgia Bureau of Investigation, who was tendered as an expert, opined that her " [a]nalysis confirms the presence of Codeine in the sample tested, Schedule V."

1. Evans contends that the trial court erred in denying his motion for a directed verdict of acquittal for possession of codeine as alleged in the indictment. Specifically, he contends that, having indicted him for possessing " codeine, a Schedule V Controlled Substance," the State failed to adduce any evidence that the liquid in the prescription bottle contained codeine " in limited quantities" together with another " nonnarcotic, active, medicinal ingredient[ ] in sufficient proportion to confer upon the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the [codeine] alone." See OCGA § 16-13-29 (1).[2] Because these elements are required to prove that the substance he possessed was codeine as provided ...


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