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Awtrey v. State

Court of Appeals of Georgia, First Division

June 27, 2018


          BARNES, P. J., MCMILLIAN and REESE, JJ.


          McMillian, Judge.

         Siblings Barbara Awtrey and Ricky Awtrey (collectively "appellants")[1] were jointly tried and convicted of multiple counts of violating the Georgia Controlled Substances Act by selling products containing indazole amide, a Schedule I controlled substance.[2] They have filed separate but essentially identical appeals to this Court, contending that the evidence was insufficient and that their trial counsel was ineffective. As more fully set forth below, we now affirm.

         1. Appellants first challenge the sufficiency of the evidence to support their convictions for selling products containing indazole amide, [3] as set out in Counts 1, 2, and 6 of the indictment.[4]

         Construed to support the jury's verdict, [5] the evidence shows that sometime in 2010, Douglas County law enforcement became increasingly concerned about the growing sale of what is commonly referred to as synthetic marijuana and began making controlled buys from retail operations where they suspected such products were being sold. Some of these substances had not yet been classified as illegal under Georgia law, and some dealers attempted to stay one step ahead of the law by constantly altering the molecular structure of the chemicals so the substances they were selling as synthetic marijuana would no longer come within the chemical definition of a controlled substance under Georgia's scheduled classifications of controlled substances. These substances were usually marketed as a type of potpourri, incense, or something of a similar nature.

         In late December 2012, Douglas County law enforcement began receiving complaints that led them to believe that synthetic marijuana was being sold at Elite Adult, [6] an adult novelty store owned and operated by appellant Ricky Awtrey. His sister, appellant Barbara Awtrey, sometimes worked at the store, trained employees, and performed various managerial tasks. In addition to adult novelty products, Elite Adult's product line included tobacco and related products, rolling papers, bongs, e-cigarettes, air fresheners and potpourri, and similar products. Some of the air fresheners and potpourri were marked with warnings against human consumption, and law enforcement suspected it was these type products that were being sold and used as synthetic marijuana.

         Sometime in early December 2012, a confidential informant made a controlled buy from Elite Adult of a package labeled Blueberry Kronic. Subsequent testing revealed that the Kronic contained a chemical which had been placed on the Pharmacy Board's list of banned substances, but this chemical was not classified as a controlled substance under the Georgia Controlled Substances Act. Law enforcement returned to Elite Adult in late March 2013 to make another controlled buy. On that occasion, a confidential informant purchased a product called Premium Potpourri, but that product also did not test positive for a controlled substance.

         In August 2013, Randy Folsom, a Sergeant over the narcotics division of the Douglas County Sheriff's Office, [7] and other officers were once again making controlled buys from businesses they suspected of selling synthetic marijuana. On August 8, 2013, Folsom and the other officers entered Elite Adult, where they observed that only one package each of the products they suspected of containing synthetic marijuana was visibly displayed, which they found unusual and consistent with the sale of synthetic marijuana.[8] Folsom made contact with an employee and purchased a package of Roses, a potpourri type product that he knew had previously tested positive for illegal substances, and a Green Giant "campfire enhancer," which Folsom knew from prior information was a product that Ricky home made.[9] The package of Roses contained the following warnings: "This product is intended to be used with sage oil incense, place holes in the pack at hand." Additionally, the packaging stated "for novelty purposes only" and "Not for human consumption. Please call poison control if consumed. Do not smoke or ingest this product directly." and "DEA and state compliant." Sergeant Folsom testified he found this last notation unusual since he had not previously seen it on a package of potpourri. Sergeant Folsom paid $17 for the one gram package of Roses.[10]

         Investigator Bryland Myers with the Douglas County Sheriff's Office special investigations division went back to Elite Adult on August 23, 2013. He purchased another package of Roses and another product suspected of containing a banned or controlled substance called B2 Da Bomb. Myers paid $44.92 for the two packages, [11]and testified that when he asked for Roses, the store clerk asked if he meant air freshener.

         Subsequent chemical testing of these products as well as the Roses purchased on August 8, 2013, revealed that they contained the controlled substance indazole amide. In addition to testimony about the nature of the substance, evidence was also presented that these type chemicals are often purchased from China because of lack of regulation and typically are shipped directly to the purchaser. Further, unlike some other controlled substances, the entire class of indazole amides are included in the Schedule I controlled drug classification, and minor molecular structure changes do not make it legal.

         Police subsequently obtained a warrant to search Ricky's home at 9703 Squirrel Wood Run in Douglas County, Georgia, and both the home and Elite Adult were searched by police. Both Ricky and Barbara were at the residence at the time of the search. During the search of Ricky's home, officers found merchandise from the store, including numerous boxes of Roses and Street Legal and other similar type products sold at Elite Adult, as well as tobacco products and adult novelty items, [12] a sealing machine, labels, empty packaging, bags of leaves of the type commonly used to produce synthetic marijuana, a pump-like sprayer, and gallon jugs of different flavorings. Officers also located a small amount of marijuana in Ricky's bedroom and a bag with methamphetamine residue and a meth pipe in Barbara's purse. During the search of Elite Adult, officers found packages of Roses, B2 Da Bomb, V8, [13] and Street Legal stored in red bowls in drawers under the display counter, and all of the samples from those bags that were tested were positive for indazole amide. Police also found receipts for Western Union money grams where Ricky had appeared to make purchases from China, and one of the investigating officers testified she did an internet search and found that during 2012 and the early part of 2013, Ricky was attempting to buy a banned substance from China.

         Ricky told police that all the products that were subsequently identified as containing illegal substances had been purchased from B & B Distributions ("B & B") and that he had letters of affirmation from B & B stating that the products did not contain any illegal substances as provided under Indiana, Ohio, and federal drug laws, and he also had independent laboratory tests showing that no "cannabimimetic agents"or synthetic cannabinoids had been detected in the products at issue. These documents were introduced into evidence at trial. Although some of the lab reports contain references to several substances listed in Schedule I of the Georgia Controlled Substances Act, no reference was made to indazole amide on any of the tests. See OCGA § 16-13-25 (12).

         Employees of Elite Adult, including the clerks who made the August 8 and August 13, 2013 sales, also testified at trial. They said that during their training to work at the store they were instructed never to comment about smoking the product and that they would be fired if they did so. Further, one clerk said that she had been instructed that Roses, V8, Street Legal, and B2 DaBomb were legal air fresheners and legal potpourri and Ricky said he had the lab reports to prove it. However, the former clerks also testified that customers sometimes purchased rolling papers or pipes with the products, and one of the clerks became suspicious that the products were not really legal after customers buying the product started acting "different" and "changing personality-wise" and would come into the store three or four times a day to purchase the products. Another clerk opined that people were crazy to pay the price they did for the products at issue. The State also admitted a recording of Ricky's jail phone conversation with his mother in which he stated that he was selling "legal weed" or "herbal highs."

         (a)Appellants first argue that the State failed to prove that the products they were charged with selling on August 8, 2013 and August 23, 2013 (Counts 1 & 2), tested positive for indazole amide. We have reviewed the State's evidence concerning this issue, including the testimony and reports produced by the forensic chemist who tested the confiscated products as well as the exhibits introduced by the State showing which products she received and the results of the testing, and find this contention to be without merit.

         (b)Appellants next argue that the evidence presented at trial was insufficient to show that they knew the products they were selling contained an illegal substance.

         Under OCGA § 16-13-30 (b), it is unlawful in this state "for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance." As charged in the pertinent counts of the indictment, appellants were charged with violating that section by selling products known as Roses, B2 Da Bomb, and Street Legal containing the controlled substance indazole amide. Although OCGA § 16-13-30 (b) does not include an express mens rea requirement, our Supreme Court has made clear that the crimes listed in OCGA § 16-13-30 are not strict liability crimes, and the criminal intent required by that section is the intent to possess, sell, or distribute "a drug with knowledge of the chemical identity of that drug." Duvall v. State, 289 Ga. 540, 542 (712 S.E.2d 850) (2011).[14] See also Calloway v. State, 303 Ga. 48, 54 (2) (i), n.6 (810 S.E.2d 105) (2018) (OCGA § 16-13-30 requires same mens rea as similar federal statute, even though requirement is not express). Compare Mohamed v. State, 314 Ga.App. 181, 183-84 (1) (723 S.E.2d 694) (2012) (evidence was sufficient to establish that the defendant possessed khat, but was insufficient he "intended to possess khat with knowledge that it contained cathinone, which was the controlled substance specified in the accusation.") (emphasis omitted).

         An accused's knowledge of the chemical identity of an illegal substance is purely a question of fact. Duvall v. State, 289 Ga. at 542; Patterson, ...

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