September 04, 2004, 01:24BLeonard
The charge is intentional or knowing possession of a controlled substance, namely: methamphetamine, of four grams or more but less than 200 grams, including any adulterants or dilutants. The proof is that the defendant intentionally or knowingly possessed 55 grams of a substance containing methamphetamine. Is the State exposed to a sustainable motion for directed verdict based upon failure to prove that the 55 grams of substance are composed of methamphetamine plus adulterants or dilutants? A bag of whitish powder is in evidence as "the substance."
September 05, 2004, 15:22pkdyer
Look at Ingram v. State, 124 S.W.3d 672 to see if that assists you. We have two cases charging def with entire amount of liquid used in the cooking process of meth even though testimony showed only a minor amount of meth could be produced. We used H&S 481.002(5) definition. Doesn't seem DV would be warranted. Check out Hines v. State, 976 SW2d 912 and Warren v. State, 971 SW2d 656. Also U.S. v Palacios-Molina, 7 F3d 49. If those don't help email me at firstname.lastname@example.org - I might be able to locate more cases in brief.
[This message was edited by pkdyer on 09-05-04 at .]
September 05, 2004, 17:02Tim Cole
I don't see any reason for concern. Your proof complies with the definition of controlled substance and you don't have to show what the remainder of the substance is, so long as methamphetamine is mixed with it.
September 07, 2004, 14:48BLeonard
I agree...the Judge did not. She had already poured my lawyers out when I posted. I just wanted to see what the community thought. This was one of those instances where the Judge's decision was pretty much unrelated to the trial record and more about showing displeasure with the prosecutors.
September 07, 2004, 16:34Tim Cole
That's too bad. I don't think your judge is the first to manufacture (no pun intended) a problem in this area. I know some judges are giving lesser included instructions in cases with liquid meth because they just don't agree that the law should be as it is; that is, they think the amount of meth should be the percentage of actual meth in the mixture. Some juries have bought this argument. But the fact remains that the clear, unambigous language of the statute makes it all meth if any amount is in there. Did your judge base her ruling on the claim that you didn't prove what else was in the stuff, or is it that you mentioned adulterants and dilutants but somehow didn't prove that the rest of the substance was, in fact, an adulterant or dilutant?
September 07, 2004, 17:13Martin Peterson
Maybe this is the case you guys have been waiting for to challenge the authority of a judge to grant a directed verdict, if the affirmative link was good. But, then the issue becomes what is the remedy where the jury has been discharged. Can the second sentence of 481.002 (5) be made any clearer than it already is? These things just should not happen. Acquittal of the guilty is not the best way to show displeasure.