Hatcher v. State, CR-04-1728.

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: Shaw
• Citation: 936 So.2d 1104
• Parties: Amy J. HATCHER v. STATE of Alabama.
• Docket Number: CR-04-1728.
• Decision Date: 03 February 2006

Page 1104

936 So.2d 1104 Amy J. HATCHER
v.
STATE of Alabama. CR-04-1728. Court of Criminal Appeals of Alabama. February 3, 2006.

Appeal from Geneva Circuit Court (CC-04-143); P. Ben McLauchlin, Jr., Judge.

M. Hampton Baxley, Dothan, for appellant.

Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.

SHAW, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and COBB and WISE, JJ., concur. BASCHAB, J., dissents, with opinion.

BASCHAB, Judge, dissenting.

In this case, the indictment against the appellant alleged that she

"did commit the crime of Unlawful Manufacture of a Controlled Substance in the second degree by, To-Wit: possessing precursor substances as determined in section 20-2-181 of the Code of Alabama 1975, in any amount with the intent to unlawfully manufacture a controlled substance, To-Wit: Methamphetamine, in violation of, Section 13A-12-217, of the Code o[f] Alabama, Against the Peace and dignity of the State of Alabama."

(C.R. 17.)

"A person commits the crime of unlawful manufacture of a controlled substance in the second degree if, except as otherwise authorized in state or federal law, he or she does any of the following:

". . . .

"(2) Possesses precursor substances as determined in Section 20-2-181, in any amount with the intent to unlawfully manufacture a controlled substance."

§ 13A-12-217(a), Ala.Code 1975. Section 20-2-181, Ala.Code 1975, provides:

"(a) The Board of Pharmacy shall, within one year of July 29, 1991, designate by rule listed precursor chemicals.

"(b) The Board of Pharmacy may subsequently by rule add chemicals as listed precursor chemicals following the criteria set forth in subdivision (2) of Section 20-2-180, and may also by rule delete any substance previously named as a listed precursor chemical. In no event shall a chemical also be designated as a listed precursor chemical if it has been determined to be a controlled substance or an immediate precursor chemical pursuant to the Alabama Uniform Controlled Substances Act, Section 20-2-1 et seq.

"(c) If any chemical is designated or deleted as a listed precursor chemical under federal law and notice thereof is given to the Board of Pharmacy, the board shall similarly list or delete the substance under this article after the expiration of 30 days from publication in the federal register of a final rule or order designating or deleting such substance as a listed precursor chemical, unless, within 30 days from publication in the federal register of the final rule or order, the board objects to the designation or deletion. In that case, the board shall publish the reasons for objection in the Alabama Administrative Monthly and shall afford all interested parties an opportunity to submit written comments and to be heard. At the conclusion of

Page 1105

the hearing and the comment period, the State Board of Pharmacy shall publish its decision, which shall be final unless altered by statute. Upon publication of an objection to the designation or deletion by the board, the designation or deletion is stayed until the board publishes its decision. Notwithstanding the provisions of the Alabama Administrative Procedure Act, Sections 41-22-1 through 41-22-27, no further rulemaking or administrative proceedings shall be required of the board with respect to the designation or deletion of substances similarly designated or deleted under federal law.

"(d) Until the Board of Pharmacy adopts a rule designating listed precursor chemicals, as required by subsection (a), the following chemicals or substances are hereby deemed listed precursor chemicals:

"(1) Acetic anhydride;

"(2) Anthranilic acid and its salts;

"(3) Benzyl cyanide;

"(4) Ephedrine, its salts, optical isomers, and salts of optical isomers;

"(5) Ergonovine and its salts;

"(6) Ergotamine and its salts;

"(7) Hydriodic acid;

"(8) Isosafrol;

"(9) Methylamine;

"(10) N-Acetylanthranilic acid and its salts;

"(11) Norpseudoephedrine, its salts, optical isomers, and salts of optical isomers;

"(12) Phenylacetic acid and its salts;

"(13) Phenylpropanolamine, its salts, optical isomers, and salts of optical isomers;

"(14) Piperidine and its salts;

"(15) Pseudoephedrine, its salts, optical isomers, and salts of optical isomers;

"(16) Safrole; and

"(17) 3, 4-Methylenedioxyphenyl-2-propanone."

Section 20-2-180(2), Ala.Code 1975, defines a "listed precursor chemical" as "[a] chemical substance specifically designated as such by the Alabama State Board of Pharmacy, that, in addition to legitimate uses, is used in the unlawful manufacture of a controlled substance or controlled substances."

"`An indictment or information in a prosecution involving narcotics or dangerous drugs must be sufficiently definite with respect to the particular substance involved to enable accused to know with what he is charged.' 28 C.J.S. Supp. Drugs & Narcotics § 185 (1974)."

McCall v. State, 487 So.2d 1375, 1377 (Ala.Crim.App.1986). See also Vann v. State, 44 Ala.App. 664, 665, 219 So.2d 649, 650 (1969) (holding that an indictment for possessing depressant and stimulant drugs was "insufficient for failure to name the particular drug possessed by the defendant").

"An indictment must allege all the elements of the offense charged, and must also sufficiently apprise the accused of what he must be prepared to defend. Fields v. State, 494 So.2d 477, 479 (Ala.Cr.App.1986); Hardy v. State, 409 So.2d 996, 1001 (Ala.Cr.App.1982). Indictment forms for most criminal offenses are set out in § 15-8-150, Code of Alabama 1975; however, no indictment form for child abuse is contained in this section.

"`If there is...