Belcher v. State, 62660

• Decision Date: 08 February 1982
• Docket Number: No. 62660,62660
• Citation: 288 S.E.2d 299,161 Ga.App. 442
• Parties: BELCHER v. The STATE.
• Court: Georgia Court of Appeals

Page 299

288 S.E.2d 299

161 Ga.App. 442

BELCHER v. The STATE.

No. 62660.

Court of Appeals of Georgia.

Feb. 8, 1982.

Rehearing Denied March 2, 1982.

Certiorari Denied April 8, 1982.

Glyndon C. Pruitt, Buford, William J. Porter, Jr., Norcross, for appellant.

Bryant Huff, Dist. Atty., Johnny R. Moore, Asst. Dist. Atty., for appellee.

POPE, Judge.

Appellant, Roger Dale Belcher, and his codefendant, Tommy Lee Sharp, were convicted in Gwinnett County for "Trafficking in Cocaine," which is a violation of the Georgia Controlled Substances Act, Code Ann. § 79A-811(j). That code section provides: "Any person who knowingly ... delivers ... 28 grams or more of cocaine or any mixture containing cocaine, as described in Schedule II, in violation of this Chapter, shall be guilty of the felony of 'Trafficking in Cocaine.' If the quantity of the cocaine or mixture involved: (1) Is 28 grams or more, but less than 200 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of five years and to pay a fine of $50,000." ¹ The appellant was also convicted for the possession of a firearm during the commission of a felony in violation of Code Ann. § 26-9908a. Appellant appeals his conviction of both offenses.

1. Appellant argues that because of the wording of the indictment which alleged the delivery of "more than twenty-eight (28) grams of cocaine," the prosecution must prove on trial that more than 28 grams of pure cocaine was present in the 113.3 grams of the substance shown to have been delivered by appellant to the GBI agents. A forensic chemist with the Georgia Crime Laboratory testified that his analysis identified the substance as being positive for cocaine.

An indictment is required to set forth the elements of the offense sought to be charged. Walker v. State, 146 Ga.App. 237(1b), 246 S.E.2d 206 (1978). " 'In criminal law an unnecessarily minute description of a necessary fact must be proved as charged; but an unnecessary description of an unnecessary fact need not be proved.' " Bell v. State, 227 Ga. 800, 802, 183 S.E.2d 357 (1971).

The offense "Trafficking in Cocaine" as specifically charged by the indictment is committed whether cocaine is delivered in a pure form or whether the cocaine is present in a mixture containing other substances, as long as the quantity of the mass containing cocaine is more than 28 grams. A specific quantity of cocaine is not required to be present in the mixture in order to constitute a violation of Code Ann. § 79A-811(j). Compare Taylor v. State, 144 Ga.App. 534(2), 241 S.E.2d 590 (1978). Therefore, we find that this alleged variance between the allegation in the indictment and proof at trial did not prevent the appellant from preparing his defense or result in surprise at trial. The appellant in the instant case was sufficiently informed of the charges against him. Also, there was no danger that the appellant might be placed in jeopardy twice for the same offense. Oglesby v. State, 243 Ga. 690(3), 256 S.E.2d 371 (1979); DePalma v. State, 225 Ga. 465(3), 169 S.E.2d 801 (1969); Maxey v. State, 159 Ga.App. 503(1), 284 S.E.2d 23 (1981); Walker v. State, supra. We therefore conclude that it was unnecessary for the prosecution in this...