Ogburn v. State, A08A2296.

CourtUnited States Court of Appeals (Georgia)
Citation674 S.E.2d 101,296 Ga. App. 254
Docket NumberNo. A08A2296.,A08A2296.
PartiesOGBURN v. The STATE.
Decision Date20 February 2009
674 S.E.2d 101
296 Ga. App. 254
No. A08A2296.
Court of Appeals of Georgia.
February 20, 2009.

[674 S.E.2d 102]

Jeffrey L. Grube, Centerville, for appellant.

Kelly R. Burke, District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellee.

SMITH, Presiding Judge.

John Ogburn appeals from his convictions for attempting to manufacture methamphetamine and possession of methamphetamine with the intent to distribute. Ogburn argues that insufficient evidence supports his convictions and that the trial court erred by denying his motion in limine, violating the "continuing witness" rule, and allowing an expert witness to testify about the "ultimate question." For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that police officers responded to a dispatch of a burglary in progress at 1:08 a.m. When the first officer arrived, the complainant inside the house reported that he "could still hear prying at the door." The officer then placed Ogburn and two other people found in the back yard of the residence under arrest.

When a police officer subsequently searched Ogburn, he found 14 small knotted plastic bags containing a white powdery substance and 889 in cash. The police also located a truck on the property that was owned by Ogburn. In the back of the truck, they found a small blue plastic storage bin with no lid. Inside the bin, the officers saw 10 aerosol cans of starter fluid, and "a big pile" of 33 red blister packs and 12 white blister packs of pseudoephedrine tablets. Each blister pack contained 24 tablets for a total of 1,080 tablets. The police also found a police scanner, various types of electronic scales, six pocket knives, and several empty plastic bags.

A forensic chemist with the GBI testified that the largest bag of "off-white solid material"

674 S.E.2d 103

provided to him tested positive for methamphetamine. While the chemist did not test the smaller bags, he testified that "they appeared to be the same as the powder that I did test." In his opinion, they "appeared to be methamphetamine, but they were not tested, so I cannot state for sure."

After a narcotics investigator testified that he had 14 years of experience in narcotics generally, "hands-on experience" with over 200 clandestine methamphetamine labs, and had worked numerous cases involving the sale and distribution of methamphetamine, the trial court qualified him as an expert in the area of "clandestine meth labs, as well as the sale and distribution of methamphetamine." The investigator testified that methamphetamine can be produced by extracting pseudoephedrine from cold medicine tablets through a chemical process. One process involves adding a solvent, such as starter fluid, to the pills.

After reviewing the evidence obtained from Ogburn's truck, the investigator testified that in his opinion, the tablets and starter fluid were going to be used for the manufacture of methamphetamine. In [296 Ga. App. 255] his opinion, obtaining large amounts of pseudoephedrine tablets and ten cans of starter fluid was the very first and a large step toward manufacturing methamphetamine. As the investigator testified, "nobody has a cold this bad."

The investigator also testified that the small knotted bags, electronic scales, police scanner, cash, and the total amount of methamphetamine found indicated that the drugs were intended for distribution. Finally, the investigator testified that when he went to the residence where the burglary had been reported the day after Ogburn's arrest, he found evidence indicating that the occupants had been "cooking drugs."

1. (a) Ogburn contends insufficient evidence supports his conviction for attempting to manufacture methamphetamine because his possession of the pseudoephedrine tablets and the starter fluid was not "a substantial step toward the commission of the crime of manufacturing methamphetamine." We disagree.

A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the...

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8 cases
  • Davenport v. the State.Walsh v. the State.
    • United States
    • United States Court of Appeals (Georgia)
    • March 2, 2011
    ......Ogburn v. State, 296 Ga.App. 254, 254–55, 674 S.E.2d 101 (2009) (affirming conviction for attempted manufacture of methamphetamine based on, inter alia, ......
  • Taylor v. State, A12A1877.
    • United States
    • United States Court of Appeals (Georgia)
    • March 21, 2013
    ......In general, the act must be inexplicable as a lawful act, and must be more than mere preparation.” (Citation omitted.) Ogburn v. State, 296 Ga.App. 254, 255(1)(a), 674 S.E.2d 101 (2009). To prove a conspiracy to violate the controlled substances laws, including the ban on ......
  • Miller v. State, A09A0146.
    • United States
    • United States Court of Appeals (Georgia)
    • July 8, 2009
    ......See OCGA §§ 16-13-30(b), 16-13-26(3)(B); Bryan, 271 Ga.App. at 61-62(1), 608 S.E.2d 648. See e.g., Ogburn v. State, 296 Ga.App. 254, 255(1)(a), (b), 674 S.E.2d 101 (2009); Kohlmeier v. State, 289 Ga.App. 709, 710-713(1)(a), (b), 658 S.E.2d 261 (2008). ......
  • Rijal v. State
    • United States
    • United States Court of Appeals (Georgia)
    • May 23, 2023
    ...... causes of the death are not subject to the "continuing. witness rule"); Ogburn v. State , 296 Ga.App. 254, 257 (3) (674 S.E.2d 101) (2009) (noting "[i]t is. well established that the admission of a lab report does ......
  • Request a trial to view additional results

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