STATE v. BURGESS, 263 Ga. 143 (1993)

429 S.E.2d 252

S92G1284.Supreme Court of Georgia.
DECIDED MAY 3, 1993. RECONSIDERATION DENIED MAY 28, 1993.

SEARS-COLLINS, Justice.

Ronald Burgess, the appellee, sold a substance which he represented to be methamphetamine to an informant for $700.[1]
The substance turned out to be primarily niacinamide, a vitamin which is regarded as a “dangerous drug” in Georgia, OCGA §16-13-71 (b) (640.3), and which is commonly used as a cutting agent for methamphetamine. The appellee was indicted and convicted for violating OCGA § 16-13-30.1[2] (“Section 30.1”), which provides that under certain

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circumstances the distribution of “noncontrolled substances” is a felony.

In a whole court decision, the Court of Appeals reversed the appellee’s conviction, Burgess v. State, 204 Ga. App. 766
(420 S.E.2d 590) (1992), holding that the trial court erred in failing to grant the appellee’s written request to charge the jury with OCGA § 16-13-30.2[3] (“Section 30.2”), which provides that distribution of “imitation controlled substances” is a misdemeanor.[4] We granted certiorari to consider whether the trial court correctly declined to charge the jury with Section 30.2. We find that a charge on Section 30.2 was not required, and we reverse the Court of Appeals.

1. The Court of Appeals held that Section 30.2 is a lesser included offense of Section 30.1 “since it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of [Section 30.1].” Burgess, 204 Ga. App. at 767-768. This language, which is found in OCGA § 16-1-6 (1), has been inconsistently applied by this court.

In State v. Estevez, 232 Ga. 316 (206 S.E.2d 475) (1974), this court applied what has come to be known as the “actual evidence test” for determining if a lesser crime is included in the crime charged under OCGA § 16-1-6 (1). Under the actual evidence test, a lesser crime is included in the crime charged if the evidence actually presented at

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trial to establish the elements of the crime charged also establishes all the elements of the lesser crime. Though the actual evidence test is still viable under Georgia law, se Montes v. State, 262 Ga. 473 (421 S.E.2d 710) (1992); Haynes v. State, 249 Ga. 119 (288 S.E.2d 185) (1982), many courts have encountered obstacles in applying that test and have resorted, either explicitly or in actuality, to the simpler, more practical “required evidence test.”[5] See, e.g., Potts v. State, 241 Ga. 67 (243 S.E.2d 510) (1978); Potts v. State, 261 Ga. 716
(410 S.E.2d 89) (1991); High v. State, 247 Ga. 289, 294 (276 S.E.2d 5) (1981) (overruled on other grounds); Dennis v. State, 158 Ga. App. 142
(279 S.E.2d 275) (1981). Under the required evidence test, a lesser crime is included in the crime charged if all of the elements which are required by law to establish the lesser crime also must be established in order to prove the greater crime.

2. We find that Section 30.2 cannot be considered a lesser included crime of Section 30.1 under the required evidence test or, in this case,[6] under the actual evidence test. While the precise scope of Section 30.2 may not be entirely clear,[7] it is clear that the plain language of Section 30.2 requires proof of a fact not required for a conviction under Section 30.1.

A “noncontrolled substance,” the distribution of which is restricted by Section 30.1, is defined simply as “any drug or substance other than a controlled substance.” OCGA § 16-13-21
(29). On the other hand, for a substance to be deemed an “imitation controlled substance,” the distribution of which is restricted by Section 30.2, it must be shown that the substance was “specifically designed or manufactured to resemble the physical appearance of a controlled substance,” or that “representations made and … dosage unit appearance, including color, shape, size, or markings, would lead a reasonable person to believe” it was a controlled substance. (Emphasis supplied.) OCGA § 16-13-21 (12.1). Evidence regarding the purpose of the design and manufacture of the product or the specific “dosage unit appearance, including color, shape, size, or markings” of the product is not necessary when the alleged infraction involves a “noncontrolled substance” under Section 30.1. Thus, the required evidence test for determining if one offense is included within another is

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not satisfied.

Furthermore, the evidence actually presented at trial would not support a conviction under Section 30.2. The evidence presented was that the substance sold to the undercover agent was a brown powder wrapped in a small package. Regardless of any representations which may have been made by the appellee, there was no evidence that the substance had any special “dosage unit appearance …, color, shape, size, or markings” which would make it appear to be anything other than that which it was: the vitamin, niacinamide.[8] Additionally, there was no evidence which would support a finding that the niacinamide was manufactured specifically to resemble methamphetamine.

Judgment reversed. All the Justices concur, except Hunstein, J., who concurs in the judgment only. Carley, J., disqualified.

DECIDED MAY 3, 1993 — RECONSIDERATION DENIED MAY 28, 1993.
Certiorari to the Court of Appeals of Georgia — 204 Ga. App. 766.

W. A. Foster III, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellant.

Murphy, Murphy, Garner, Stephen E. Garner, Julie Williams Cain, for appellee.