THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Respondent,

v.

Charles Allen Cain, Petitioner.

Appellate Case No. 2015-001983

ON WRIT OF CERTIORARI TO THE COURT O F APPEALS

Appeal from Spartanburg County R. Lawton McIntosh, C ircuit Court Judge

Opinion No. 27694 Heard October 20, 2016 – Filed January 5, 2017

REVERSED

Thomas J. Rode, of Thurmond Kirchner & Timbes, P.A., of Charleston; and Chief A ppellate Defender Robert Dudek, of Columbia, both for Petitioner.

Attorney General Alan Wilson and Senior Assistant Attorney General David Spen cer, both of Columbia; and Solicitor Barry J. Barnette, of Spartanburg, all for Respondent.

JUSTICE FEW : Charles Allen Cain appeals his conviction for trafficking in methamphetamine. He argues the State produced insufficient evi dence as to the quantity of drugs required for tr afficking, and thus the trial court erred when it denied his motion for a directed verdict. The court of appeals found the core ofCain's argument was not preserv ed for appellate review, and aff irmed. We find Cain's argument is preserved, a nd the court of a ppeals erred by affirming the denial

of the directed verdict m otion. We reverse.

I. Facts and Procedural History

In January 2012, deputies of the Spartanburg County Sheriff's Office went to 371 Dakota Street near the City of Spartanburg to serve a bench war rant on Travis Kirby. Charles Cain and Tiphani Parkhurst were renting a bedroom in the house and answered the door. After some discussion, Cain gave the de puties permission to enter. While searching for Ki rby, the deputies discovered e quipment used to manufacture methamphetamine. Th e deputies called Beth Stuart, a forensic chemist employed by the Sheriff' s Office, to investigate the sc ene. Although Stuart did not find any meth amphetamine, she did find evidence of ingr edients used to manufacture methamphetamine. This evidence included empty pack ages of Sudafed, which Stuart determined once contained 19.2 grams of p seudoephedrine. Using a scientific theory known as stoichiometry, 1 Stuart calculated that 19.2 grams of pseudoephedrine could theoretically produce 17.67 gram s of methamphetamine, if Cain manufact ured the methamphetamine with maximum efficiency. Based on Stuart's a nalysis, the State charged Cain and Parkhurst with trafficking in methamphetamine under subsection 44-53-375(C) of the South Carolina Code (Supp. 2016). Under that subsection, a defendant is guilty of trafficking if the State pr oves the defendant "knowingly . . . attempts . . . to . . . manufacture . . . ten grams or more of methamphetamine." Id.

Cain made a pretrial motion to d ismiss, a directed verdict motion, and he renewed the directed verdict motion at the close of the evidence, all o n the basis that the State did not present sufficient evidence to prove the required quantity of methamphetamine to establish tr afficking under subsection 44-53 -375(C). The

trial court denied the motions . The jury found Cain and Parkhu rst guilty of trafficking in methamphetamine.

Cain appealed to the court of appeals raising three issues. He argued (1) the trial

court erred in admitti ng Stuart's testimony into evidence; (2) the trial court erred in denying Cain's directed verdict motion because the State did no t prove Cain had custody and control of the means of manufacturing the methamphe tamine; and (3)

1 Stoichiometry is "the study of quantitative relationships involving the substances

in chemical reactions." Daniel L. Reger, Scott R. Goode & Davi d W. Ball, Chemistry: Principles and Practice 92 (3rd ed. 2010).the trial court erred in denying Cain's directed verdict motion because the State did not present sufficient evidence of the requisite quantity of me thamphetamine for a conviction for trafficking. The court of appeals reached the merits of the first two issues, and affirmed. State v. Cain , 413 S.C. 508, 527, 533, 776 S.E.2d 374, 384, 387 (Ct. App. 2015). The central i ssue of Cain's appeal was th e sufficiency of the State's evidence of quantity—the t hird issue—which Cain described in his brief to the court of appeals as "whethe r an attempted trafficking convi ction may be based solely on expert testimony that it was 'theoretically' possible that the accused could

have committed the offense." T he court of appeals found this i ssue was not preserved for appellate revie w. 413 S.C. at 530-31, 776 S.E.2dat 385-86. We granted certiorari only to review the court of appeals' decisio n as to the third issue. 2

II. Evidence of Quantity

Subsection 44-53-375(C) permits t he State to prove trafficking based on a variety

of factual scenarios. One elemen t the State must prove in all scenarios is the quantity of "ten grams or more." Id. Commonly, the State meets its burden on this element by proving the qu antity of the methamphetamine its elf. In this case, however, the sheriff's deputies f ound no methamphetamine. Ther efore, to prove Cain guilty of trafficking the St ate was required to prove he a ttempted to manufacture the requisite quantity . The State relied exclusive ly on Stuart to prove the element of quantity, as ther e is no other evidence in the r ecord of the quantity of methamphetamine Cain a ttempted to manufacture.

Cain argues Stuart's testimony is insufficient because it prove s only the theoretical quantity of drugs a person could have produced at maximum effic iency; it does not prove the quantity Cain could r ealistically have intended to ma nufacture. Without evidence showing Cain could actua lly have produced ten grams or more of methamphetamine with the equipmen t and ingredients he had at his disposal, Cain argues, the trial court erred in denying his motion for directed verdict. We agree.

As background to her testimony a bout quantity, Stuart described the equipment and ingredients found at the sce ne, and how Cain would have use d them in the "one pot" method of manufacturi ng methamphetamine. As Stuart e xplained, a person using the one pot method fills a two-liter drink bottle with various ingredients until a chemical r eaction takes place. The bottle Cain used was an

2 The issues we identify as the s econd and third correspond to s ubparts B and A of section II of the court of app eals' opinion. 413 S.C. at 528-3 3, 776 S.E.2d at 384

- 87.empty liquor bottle. The first step of the one pot method is t o crush Sudafed pills and put the pseudoephedrine into the bottle. Then, Cain would have dumped ammonia, lighter fluid, lithium strips from batteries, and wate r into the liquor bottle and waited for a chemical reaction. Stuart explained th at after an hour or so, Cain would have poured the liqui d out of the liquor bottle into a separate bottle. That liquid is methamphetamine base. To produce the end produc t, Cain would have dumped muriatic acid, whic h is commonly found in drain cle aners, and salt into another bottle to produce acid gas. When the acid gas is mixed with the liquid base, it forms a white powder th at is the end product—methamphe tamine. Stuart

testified Cain's method did no t take place under laboratory con ditions, and admitted that calling his operati on a "meth lab" was a "misuse of the word lab."

As to the quantity of methamphetamine that could be produced fr om this method,

Stuart and the solicitor had the following exchange:

Q: Now, if you take the 19,200 milligrams of either the Sudafed you found or t he empty Sudafed that

had been there . . . and you were going to attempt to manufacture methamphe tamine, and you got a one hundred percent yield . . . how much methamphetamine could you manufacture?

A: 17.67 grams.

. . . .

Q: And that's under la boratory conditions?

A: Yes.

Q: Let's say you only got an 80 percent yield . . . [h]ow much c ould you manufacture?

A: 14.13 grams.

Q: How about a 75 percent yield?

A: 13.25 grams.

Q: How about a 70 percent yield?A: 12.36 grams.

Q: What about a 65 percent yield?

A: 11.48 grams.

Q: Still more than ten grams?

A: Yes, sir.

Q: So . . . if you were going to get at least a two-thirds return on what you put in, you would still manufacture more than ten grams?

A: Yes.

This testimony was the only eviden ce the State offered as to th e quantity involved in Cain's alleged trafficking in methamphetamine.

"It is a fundamental concept of criminal law that the State mus t prove beyond a

reasonable doubt all the elements o f the offense charged against the defendant."

State v. Brown , 360 S.C. 581, 590, 602 S.E.2d 392, 397 (2004). The State may not obtain a conviction when its proof as to any one element requires the jury to speculate or guess whether the defendant engage d in the conduct the legislature sought to criminalize. State v. Brown , 267 S.C. 311, 316, 227 S.E.2d 674, 677 (1976) (stating "the motion for a directed verdict should be gr anted where evidence . . . is such as to permit the ju ry to merely conjecture or to speculate"); see also Hanahan v. Simpson , 326 S.C. 140, 149, 485 S.E. 2d 903, 908 (1997) (stating "verdicts may not be permitted to rest upon surmise, conjecture , or speculation"); State v. Hyder , 242 S.C. 372, 379, 131 S.E.2d 96 , 100 (1963) ("We have held that suspicion, however strong, does not suffice to sustain a conviction."). The
"attempt[] .



### . . to manufacture . . . methamphetamine" is criminalized under subsection 44-53-375(B) of the S outh Carolina Code (Supp. 2016) without regard to quantity. Subsection 44-53-375(C) criminalizes such an atte mpt as "trafficking" only when the State proves the quantity he attempted to manufac ture was "ten grams or more." However, subs ection 44-53-375(C) does not criminalize the theoretical possibility of manufacturing ten grams or more of m ethamphetamine.Stuart's testimony proves it was th eoretically possible to manu facture 17.67 grams of methamphetamine from 19.2 gr ams of pseudoephedrine if the pr ocess was conducted at one hundred percent efficiency. However, Stuart s pecifically acknowledged the quantity of 17. 67 grams was calculated on the assumptions of "ideal laboratory conditions" w ith "pure products" used by a "trained chemist." Stuart admitted Cain did not have ideal laboratory conditions, and the State offered

no evidence Cain even knew how t o manufacture methamphetamine. There is no other evidence in the record to support the validity of Stuart' s assumptions. Stuart's testimony also proves the quantity of methamphetamine Cain coul d have

manufactured at various lower lev els of efficiency. However, S tuart's testimony provides no basis for calculating the level of efficiency Cain could actually have

reached under the circumstances that existed in the house. In fact, Cain's counsel specifically asked Stuart on cro ss examination, "There's no way to tell, from what you had there, how much [the def endants] were ac tually getting from their work?" Stuart replied, "No, sir."

This answer left the jury in the position of having to speculat e as to Cain's efficiency at making methamphet amine, and therefore having to g uess at how much of the drug he attempted to manufacture. As we stated in Brown , "the

motion for a directed verdict s hould be granted where evidence . . . is such as to permit the jury to merely conjecture or to speculate." 267 S.C. at 316, 227 S.E.2d

at 677. Because the State offere d no evidentiary basis on whic h the jury could have determined—without specula ting—the quantity of methampheta mine Cain attempted to manufacture, the t rial court was required to grant Cain's motion for a directed verdict, and the court of appeals erred by affirming.

Courts in other jurisdictions have also found that evidence of a theoretical amount produced at maximum efficiency i s insufficient proof of the qua ntity element. In

United States v. Eide , 297 F.3d 701 (8th Cir. 2002), the defendant was convicted of attempting to manufacture five gr ams or more of methamphetamine . 297 F.3d at

702. On appeal, he argued the government's evidence was not su fficient as to quantity, and thus "he should be resentenced on the included of fense of simple attempted manufacturing." 297 F .3d at 704. As in Cain's case, the government in

Eide did not find any methamphetamin e in the defendant's residence, but it did find pseudoephedrine and equipment commonly used to manufacture methamphetamine. 297 F.3d at 702-03. Therefore, the governmen t relied on expert testimony to establish th e quantity of methamphetamine t he defendant attempted to manufacture. 297 F.3d at 703-04.The government's expert was Patricia Krahn, a chemist from the Iowa Division of Criminal Investigation. 297 F. 3d at 703. She testified the 27 .6 grams of pseudoephedrine found at the def endant's residence could theore tically produce "the highest possible yield" of 25.39 grams of methamphetamine. 297 F.3d at 703

- 04. The Eighth Circuit found this evidence insufficient, stati ng, "Quantity yield figures should not be calculated without regard for the particu lar capabilities of a defendant and the drug manufacturing site." 297 F.3d at 705. See also United

States v. Anderson , 236 F.3d 427, 430 (8th Cir. 2001) (stating "the relevant inqu iry

is not what a theoretical maximum yield would be, or even what an average methamphetamine cook would produ ce, but what appellants themsel ves could produce"); United States v. Eschman , 227 F.3d 886, 890 (7th Cir. 2000) (holding "courts cannot quantify yield fi gures without regard for a part icular defendant's capabilities when viewed in light of the drug laboratory involved"); Buelna v.

State , 20 N.E.3d 137, 146 (Ind. 2014) ( holding testimony must be "accurately tailored to the specific manufac turing conditions, ingredients, and skill of the accused").

In Eide , after rejecting the government's evidence of theoretical maxi mum yield, the Eighth Circuit focused on th e expert's explanation of "the particular methamphetamine manufacturing pro cesses" the defendant used, an d her testimony

"that his lithium ammonia reducti on process was capable of prod ucing a 40 to 50 percent yield." 297 F.3d at 705 . The court stated, "This yiel d would have resulted in producing 10.1 to 12.6 grams of actual methamphetamine." 29 7 F.3d at 704.

The court affirmed the convicti on because it found, "The partic ularized nature of Krahn's testimony, combined with additional evidence suggesting that Eide was experienced in the manufacture of methamphetamine, were suffici ent for a jury to find beyond a reasonable doubt that Eide was a good cook capable of producing a 40 to 50 percent yiel d." 297 F.3d at 705.

Unlike the expert testimony in Eide , Stuart's testimony provided the jury no basis

on which to determine how much methamphetamine Cain could actua lly have produced. If Cain were a "good c ook" like Eide, "capable of pr oducing a . . . 50 percent yield," he would have ma nufactured 8.83 grams of metham phetamine, and thus, he could not be guilty of trafficking.

We review the denial of a direct ed verdict motion in a criminal case under the any

evidence standard of review. "If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt o f the accused, the Court must find the case was pr operly submitted to the jury." State v. Harris , 413

S.C. 454, 457, 776 S.E.2d 365, 366 (2015) (quoting State v. Brandt, 393 S.C. 526,542, 713 S.E.2d 591, 599 (2011)). In this case, the State pres ented some evidence of quantity. As we have explai ned, however, subsection 44-53-3 75(C) does not criminalize the theoretical po ssibility of manufacturing "ten g rams or more" of methamphetamine. Because the Sta te did not establish the level of efficiency Cain could have actually achieved in his attempt to manufacture meth amphetamine, the jury was forced to speculate as to whether Cain could have actually produced the requisite quantity. Under this cir cumstance, we find the State presented "no evidence" that Cain attempted to m anufacture ten grams or more of methamphetamine. The trial cour t erred in not granting Cain's directed verdict

motion.

III. Issue Preservation

We now turn to the court of appeals' holding that Cain's argume nt was not preserved for appellate review. Our appellate courts have cons istently found issues preserved for review when the issu e was raised to and ruled upon by the trial court. See, e.g.

, State v. Williams , 417 S.C. 209, 228 n.10, 789 S.E.2d 582, 592 n.10 (Ct. App. 2016) ("In order for an issu e to be preserved for appellat e review, it must

have been raised to and ruled upon by the trial judge." (quotin g State v. Dunbar

, 356 S.C. 138, 142, 587 S.E.2d 691 , 693 (2003))). While a party may not argue one ground at trial and anot her ground on appeal, State v. Bailey , 298 S.C. 1, 5, 377 S.E.2d 581, 584 (1989), we do not r equire a party to use the same language on appeal as it did at trial, Herron v. Century BMW , 395 S.C. 461, 466, 719 S.E.2d 640, 642 (2011). We find Cain's argument at trial and his argu ment on appeal were the same: that Stuart's testimony was not sufficient to prove t he quantity element of "ten grams or more." Thus, the a rgument before us now is prese rved for appeal

because it was raised to and ruled upon by the trial court. See Williams , 417 S.C. at 228 n.10, 789 S. E.2d at 592 n.10.

Cain repeatedly argued at trial t he State's evidence as to quan tity was not sufficient. In a pretrial moti on to dismiss, Cain argued, "I d on't think there's anything in [subsection 44-53-375( C)] or in South Carolina law that says you can take a theoretical yield 3 based on the evidence found a nd make it into a trafficking case." Cain continued, "I just think that if the case would go forward it would go forward as a manufacturing as opposed to trafficking case." In drawing this

3 Theoretical yield is "the maxim um quantity of product that can be obtained from a chemical reaction, b ased on the amounts of starting materials ." Reger, Goode & Ball, supra note 1, at 118. However, the a mount actually produced "is alw ays less than the theoretical yield." Id. at 123.distinction between trafficking and simple manufacturing, which under subsection 44-53-375(B) contains no elemen t of quantity, Cain necessarily focused the trial

court's attention on the suffici ency of the State's evidence on the quantity element. The solicitor clearly understood t he argument to relate to quan tity, stating "we would argue that [Cain and Parkhurst] are attempting to manufac tur[e] methamphetamine and the attempt to manufacture [is] more than, the theoretical yield of more than 10 grams in t his case, the maximum theoretic al yield is just about 17 grams." The trial court took the motion to dismiss un der advisement.

Cain also focused on quantity when he made his motion for a dir ected verdict. He argued,

Your Honor, we'd make a moti on for directed verdict. The testimony has been presented that there is some type of something going on in this house, some ingredient in

this house that has been ide ntified as a meth lab with some yield. In optimal cond itions, maybe, to be a little over 17 grams.

He continued his argument by dra wing the same distinction betwe en simple manufacturing and trafficking. He stated,

I think the evidence that has been presented is, at this point . . . not sufficient for at least trafficking . . . [b]ut it's certainly the—it's too speculative to present the trafficking. So, if we don't have—if we have enough to present to the jury, I submit we have—it would be for manufacturing as opposed to trafficking.

In denying the motion, the trial court specifically referred ba ck to the previous discussion about "theoretical yie ld," indicating the trial cour t understood the

directed verdict motion to addre ss the sufficiency of the State's evidence on the element of quantity. See State v. Kromah , 401 S.C. 340, 353 , 737 S.E.2d 490, 497 (2013) (holding the issue was preserved when the trial court im mediately appeared to understand the objection was a renewal of a previous argumen t); State v.

Hendricks , 408 S.C. 525, 531, 759 S.E.2d 434, 437 (Ct. App. 2014) (holdi ng an issue was preserved in part because the trial court immediately understood the basis of the objection).After all the evidence had been presented, the parties began an other discussion of the quantity element. The trial court stated,

I think you're protected on the record, but I am denying the motion based on the plain reading of the statute, and

based on the case of persuasive authority [4] that was handed in by [the solicitor]. I think theoretical yield would be an appropriate analysis in this case.

At first glance, the ruling app ears to relate only to the motio n to dismiss. However, later in the transcript the trial court clarified it u nderstood Cain to have renewed his directed verdict motion—on the basis of quantity—an d that when it ruled, the trial court denied the motion to dismiss and the ren ewed directed verdict

motion.

On appeal, Cain made the same a rgument—theoretical yield is not sufficient evidence of quantity—but he comp limented the argument by descri bing what

evidence would be sufficient. I n doing so, he used a term he h ad not used at trial— "potential yield." Cain used the term potential yield to describe for the court of appeals the quantity of meth amphetamine a person could actually produce given his level of expertise in light of all the conditions present a t the time. He used the

term to draw a contrast between e vidence that would be sufficie nt and the

4 The "persuasive authority" to wh ich the trial c ourt referred w as an unpublished opinion from the Iowa court of appeals, State v. Knapp , No. 08-1918 (Iowa Ct. App. Dec. 17, 2009). The s olicitor earlier relied on Knapp to support the State's argument that theoretical yield e vidence is sufficient to prove the quantity element.
Knapp supports neither the State's a rgument nor the trial court's ru ling. While it is

true the State relied on theo retical yield evidence in Knapp , the Iowa court of appeals affirmed based on the e xpert's testimony of what actual yield the defendant

could have achieved. Knapp , slip op. at 8. The defendant in Knapp possessed enough pseudoephedrine to produce a "theoretical yield of 15.4 grams of methamphetamine." Knapp , slip op. at 3. However, t he expert estimated the defendant could "actually produce between six and seven grams o f pure methamphetamine." Id.theoretical yield evidence offered by the State, which he argue d was not sufficient. 5 This was the same argument Cain m ade in his pre-trial motion to dismiss, his directed verdict motion, and his renewed directed verdict motio n. Regardless of the labels used by Cain, his ar gument on appeal was the same ar gument repeatedly raised to and ruled upon by the trial court. Thus, we find the court of appeals erred in holding Cain's argument is not preserved for review.

IV. Conclusion

We find the State produced insu fficient evidence as to the quan tity of drugs involved in Cain's alleged traffi cking in methamphetamine. Acc ordingly, the court of appeals' decision—and Cain's conviction for trafficking—are REVERSED

.

BEATTY, C.J., KITTRED GE, HEARN, JJ., and Acting Justice Costa M

. Pleicones, concur.

5 Other courts have used the terms "theoretical yield" and "pote ntial yield" to draw the same contrast between the qua ntity of drugs that can be man ufactured at maximum efficiency (theoretical yield) and the quantity that co uld actually be produced given the limitations o f the system used and the exper tise of the person making the drugs (potential yield). Compare United States v. Weaver , 425 F. App'x 267, 268-69 (4th Cir. 2011) ( discussing "theoretical yield"), and United

States v. Chase , 499 F.3d 1061, 1069 (9th Cir. 2007) (same), and State v. Hooks

, 777 S.E.2d 133, 136 (N.C. Ct. App. 2015) (same), with Knapp , No. 08-1918, slip op. at 8 (discussing "potential yield"). We suggest the term " potential yield" is confusing, and if it is necessary to label the concept Cain sou ght to describe, a term such as "actual yield" would be more useful.