Ledford v. State, A99A0735.

• Decision Date: 28 June 1999
• Docket Number: No. A99A0735.,A99A0735.
• Citation: 520 S.E.2d 225,239 Ga. App. 237
• Parties: LEDFORD v. The STATE.
• Court: Georgia Court of Appeals

520 S.E.2d 225

239 Ga. App. 237

LEDFORD v. The STATE.

No. A99A0735.

Court of Appeals of Georgia.

June 28, 1999.

Reconsideration Denied July 21, 1999.

Certiorari Denied January 14, 2000.

Coppedge, Leman & Ward, David L. McGuffey, Dalton, for appellant.

Kermit N. McManus, District Attorney, Matthew A. Rankin, Assistant District Attorney, for appellee.

ELDRIDGE, Judge.

A Whitfield County jury found Jeffery Lynn Ledford guilty of intentional inhalation of paint fumes as proscribed by OCGA § 16-13-91. He appeals, challenging the sufficiency of the evidence.

The Whitfield County Sheriff's Office received a call regarding a domestic dispute involving Ledford, in which Ledford's trailer was burned. Ledford was located in another trailer near the scene. The deputies knocked on the door of the trailer, and Ledford answered. They asked him if he was alright. Ledford started to cry. He immediately held out his wrists and blurted out, "I'm sorry, I'm ready to go. I'm sorry; I burned my trailer down." Ledford was extremely emotional and upset; he was "nervous and shaking." The deputies attempted to calm Ledford down and ask him what happened. While relating his version of events, Ledford pointed to a paper bag containing a can of gold spray paint and paper towels saturated with gold paint. Ledford told the deputies that he had been "huffing" paint and that he did so whenever "his nerves are shot." Ledford had traces of gold paint around his nose and mouth. The label on the spray can stated that the paint contained "toluene." At trial, the State introduced similar transaction evidence showing that Ledford had pled guilty to intentional inhalation of paint fumes on three prior occasions. Held:

In challenging the sufficiency of the evidence introduced against him, Ledford contends that there was insufficient evidence to demonstrate that the contents of the spray paint can included the chemical toluene. We are constrained to agree.

The offense of intentional inhalation occurs when one intentionally, for the purpose of causing a condition of intoxication, etc., smells or inhales the fumes from any "model glue." OCGA § 16-13-91. In that regard, "model glue" is defined as any chemical substance containing certain proscribed chemicals, inter alia, acetone and toluene. OCGA § 16-13-90. Ledford was indicted for inhaling "paint containing acetone and toluene." Thus, the presence of either acetone or toluene is an essential element of the offense of intentional inhalation as indicted.

In this case, the State proved that the inhaled paint contained the chemical toluene solely through the introduction of the gold spray paint can which carried a contents label identifying toluene as one of its ingredients. There was no objection to the introduction of the can or to the reading of its label to the jury. However, this evidence, alone, is insufficient as a matter of law. The presence of toluene, an essential element of the crime, cannot be proved only through the introduction of the spray can. The contents label is hearsay and, absent a recognized exception, cannot prove the truth of the matter asserted thereon. See, e.g., Taylor v. State, 144 Ga.App. 534, 241 S.E.2d 590 (1978). Hearsay, even when admitted into evidence without objection, lacks probative value to establish any fact. Howell Mill/Collier Assoc. v. Pennypacker's, 194 Ga.App. 169, 171(2), 390 S.E.2d 257 (1990). See also Curtis v. State, 190 Ga.App. 173, 175, 378 S.E.2d 516 (1989).¹ Since no competent evidence proved that the inhaled paint contained either acetone or toluene as required by OCGA § 16-13-90, the State failed to prove the crime pursuant to OCGA § 16-13-91.

The dissent's reliance on the necessity exception to the hearsay rule is misplaced. The necessity exception to the hearsay rule has two components: (1) necessity and (2) particularized guarantees of trustworthiness. Chapel v. State, 270 Ga. 151, 155, 510 S.E.2d 802 (1998).

1. With regard to the first component, necessity, the dissent asserts that a necessity for an exception to the hearsay rule is established by the fact that: "an array of witnesses would be necessary to qualitatively analyze the container's contents and to establish production control and packaging in order to introduce the evidence." Although the dissent does not credit the source of such statement, the statement is essentially a direct quote from the case of Moore v. State, 811 S.W.2d 848 (Mo.App.1991): "an array of witnesses would be required to establish qualitative analyses of substances as well as production control and packaging in order for the items to be admissible in evidence." Id. at 850. However, the statement in Moore was directed at establishing strict compliance with Missouri's multiple statutory procedures for taking blood in preparation for chemical testing and did not go to the actual test of the blood itself.² The statement is completely inapplicable to the instant case. Clearly, there is no "array" of witnesses required to testify that a spray can contains toluene, other than the lab technician who conducts the chemical test and the chain of custody witness—just like in any other drug case where the State must prove the presence of a prohibited substance.

In order to use the "necessity exception" as a method to abrogate a criminal defendant's constitutional right to confront the witnesses against him, especially those that establish an essential element of the indicted offense, there must be a genuine necessity.

Under the necessity exception to the hearsay rule, hearsay statements are admissible when the evidence is necessary and when there are particular guarantees of trustworthiness. We have previously found that the first criteri[on] is met when the declarant is deceased. However, death or unavailability of the declarant cannot alone satisfy the necessity component without allowing the exception to swallow the rule. Additionally, the proponent of the evidence must show that the statement is relevant to a material fact and that the statement is more probative on that material fact than other evidence that may be procured and offered. These additional elements will help ensure that the necessity exception does not render the rules of evidence meaningless and allow the conduct of trials by hearsay.

(Emphasis supplied.) Chapel v. State, supra at 155, 510 S.E.2d 802; Lee v. State, 270 Ga. 626, 627(2), 513 S.E.2d 225 (1999). Here, the first prong of the necessity exception cannot be satisfied, because evidence regarding the contents of the spray can may be procured and offered through the testimony of a crime lab technician, without resorting to the hearsay label on the can. The fact that it would be easier to introduce the can does not rise to the level of showing "necessity" pursuant to the necessity exception to the hearsay rule.

2. With regard to the second prong of the necessity exception, "particular guarantees of trustworthiness," the dissent relies upon five additional foreign cases in order to establish such. However, a review of the basis for each case's holding (as opposed to selected excerpts from each case) demonstrates that the rationale for admissibility is not applicable under Georgia law.

In the Interest of T.D., 115 Ill.App.3d 872, 71 Ill.Dec. 20, 450 N.E.2d 455 (1983), the court determined that a contents label was admissible based upon the language of an Illinois statute which required such labeling in conjunction with an Illinois evidentiary statute regarding "trade inscriptions" which makes labels made in the ordinary course of business self-authenticating. Id. 71 Ill.Dec. 20, 450 N.E.2d at 458-459. Georgia has neither statute.

In re Michael G., 19 Cal.App.4th 1674, 24 Cal.Rptr.2d 260 (1993), determined that a content label was admissible based upon a specific California statutory exception to the hearsay rule, the "compilation exception," that permitted the introduction of the label under the business records exception to the hearsay rule. Id. at 262. Georgia has no such exception.

In Commonwealth v. Harvey, 446 Pa. Super. 395, 666 A.2d 1108 (1995), the court found that the label at issue was not hearsay because it was not being offered for the truth of the matter asserted thereon, i.e., the contents of the container, but as an identifier. Id. at 1110. Later, the court took judicial notice of the contents of the identified product based upon a State-published digest regarding such contents, the Pennsylvania Bulletin, which publication was required by State Control Board regulations. Id. at 1113. In the instant case, the label on the can was the sole evidence offered to prove the contents of the can.

Wirth v. State, 55 Wis.2d 11, 197 N.W.2d 731 (1972), focused on a State statute requiring that a pharmacist maintain a narcotics registry and label any container for a narcotics substance. Id. at 732-733. In a trial for the improper purchase of an excessive amount of a narcotic substance, codeine, the pharmacist was called to testify as to his sale of a bottle of the narcotic to the defendant. The court found that the State had sufficiently shown the bottle to contain the narcotic in that: (1) the bottle was kept in a nonaccessible area reserved for narcotics; (2) it was sealed with an unbroken seal; (3) it was dispensed by a registered pharmacist who believed it to contain a narcotic substance; (4) it was labeled as containing a narcotic substance; (5) it was labeled and sealed by the manufacturer in response to both federal and state laws regulating manufacturing, packaging and selling or dispensing narcotics; and (6) the defendant in making the purchase signed the narcotics registry as required by law, thereby demonstrating that the bottle he purchased contained a narcotic substance. Id. at 731-732. Most importantly, the pharmacist who kept the narcotics registry and sold the product to the defendant was called to testify and was subject to...