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 OF APPEALS 

Appeal from Spartanburg County 

R. Lawton McIntosh, Circuit 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 Appellate Defender Robert 

Dudek, of Columbia, both for Petitioner. 

Attorney General Alan Wilson and Senior Assistant 

Attorney General David Spencer, 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 evidence as to the 

quantity of drugs required for trafficking, and thus the trial court erred when it 

denied his motion for a directed verdict. The court of appeals found the core of 
 

Cain's argument was not preserved for appellate review, and affirmed. We find 

Cain's argument is preserved, and the court of appeals erred by affirming the denial 

of the directed verdict motion. 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 warrant 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 deputies permission 

to enter. While searching for Kirby, the deputies discovered equipment used to 

manufacture methamphetamine. The deputies called Beth Stuart, a forensic 

chemist employed by the Sheriff's Office, to investigate the scene. Although Stuart 

did not find any methamphetamine, she did find evidence of ingredients used to 

manufacture methamphetamine. This evidence included empty packages of 

Sudafed, which Stuart determined once contained 19.2 grams of pseudoephedrine. 

Using a scientific theory known as stoichiometry,1

 Stuart calculated that 19.2 

grams of pseudoephedrine could theoretically produce 17.67 grams of 

methamphetamine, if Cain manufactured the methamphetamine with maximum 

efficiency. Based on Stuart's analysis, 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 proves the defendant "knowingly . . . attempts . . . to . . . 

manufacture . . . ten grams or more of methamphetamine." Id. 

Cain made a pretrial motion to dismiss, a directed verdict motion, and he renewed 

the directed verdict motion at the close of the evidence, all on the basis that the 

State did not present sufficient evidence to prove the required quantity of 

methamphetamine to establish trafficking under subsection 44-53-375(C). The 

trial court denied the motions. The jury found Cain and Parkhurst guilty of 

trafficking in methamphetamine. 

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

court erred in admitting Stuart's testimony into evidence; (2) the trial court erred in 

denying Cain's directed verdict motion because the State did not prove Cain had 

custody and control of the means of manufacturing the methamphetamine; and (3) 

1

 Stoichiometry is "the study of quantitative relationships involving the substances 

in chemical reactions." Daniel L. Reger, Scott R. Goode & David 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 methamphetamine 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 issue of Cain's appeal was the sufficiency of the 

State's evidence of quantity—the third issue—which Cain described in his brief to 

the court of appeals as "whether an attempted trafficking conviction may be based 

solely on expert testimony that it was 'theoretically' possible that the accused could 

have committed the offense." The court of appeals found this issue was not 

preserved for appellate review. 413 S.C. at 530-31, 776 S.E.2d at 385-86. We 

granted certiorari only to review the court of appeals' decision as to the third issue.2 

II. Evidence of Quantity 

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

of factual scenarios. One element 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 quantity of the methamphetamine itself. In this case, 

however, the sheriff's deputies found no methamphetamine. Therefore, to prove 

Cain guilty of trafficking the State was required to prove he attempted to 

manufacture the requisite quantity. The State relied exclusively on Stuart to prove 

the element of quantity, as there is no other evidence in the record of the quantity 

of methamphetamine Cain attempted to manufacture. 

Cain argues Stuart's testimony is insufficient because it proves only the theoretical 

quantity of drugs a person could have produced at maximum efficiency; it does not 

prove the quantity Cain could realistically have intended to manufacture. Without 

evidence showing Cain could actually have produced ten grams or more of 

methamphetamine with the equipment 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 about quantity, Stuart described the equipment 

and ingredients found at the scene, and how Cain would have used them in the 

"one pot" method of manufacturing methamphetamine. As Stuart explained, a 

person using the one pot method fills a two-liter drink bottle with various 

ingredients until a chemical reaction takes place. The bottle Cain used was an 

2

 The issues we identify as the second and third correspond to subparts B and A of 

section II of the court of appeals' opinion. 413 S.C. at 528-33, 776 S.E.2d at 384-

87. 
empty liquor bottle. The first step of the one pot method is to crush Sudafed pills 

and put the pseudoephedrine into the bottle. Then, Cain would have dumped 

ammonia, lighter fluid, lithium strips from batteries, and water into the liquor 

bottle and waited for a chemical reaction. Stuart explained that after an hour or so, 

Cain would have poured the liquid out of the liquor bottle into a separate bottle. 

That liquid is methamphetamine base. To produce the end product, Cain would 

have dumped muriatic acid, which is commonly found in drain cleaners, and salt 

into another bottle to produce acid gas. When the acid gas is mixed with the liquid 

base, it forms a white powder that is the end product—methamphetamine. Stuart 

testified Cain's method did not take place under laboratory conditions, and 

admitted that calling his operation a "meth lab" was a "misuse of the word lab." 

As to the quantity of methamphetamine that could be produced from 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 the empty Sudafed that 

had been there . . . and you were going to attempt 

to manufacture methamphetamine, and you got a 

one hundred percent yield . . . how much 

methamphetamine could you manufacture? 

A: 17.67 grams. 

. . . . 

Q: And that's under laboratory conditions? 

A: Yes. 

Q: Let's say you only got an 80 percent 

yield . . . [h]ow much could 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 evidence the State offered as to the quantity involved 

in Cain's alleged trafficking in methamphetamine. 

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

reasonable doubt all the elements of 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 engaged 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 granted where evidence 

. . . is such as to permit the jury 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 South Carolina Code (Supp. 2016) without regard 

to quantity. Subsection 44-53-375(C) criminalizes such an attempt as "trafficking" 

only when the State proves the quantity he attempted to manufacture was "ten 

grams or more." However, subsection 44-53-375(C) does not criminalize the 

theoretical possibility of manufacturing ten grams or more of methamphetamine. 
Stuart's testimony proves it was theoretically possible to manufacture 17.67 grams 

of methamphetamine from 19.2 grams of pseudoephedrine if the process was 

conducted at one hundred percent efficiency. However, Stuart specifically 

acknowledged the quantity of 17.67 grams was calculated on the assumptions of 

"ideal laboratory conditions" with "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 to 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 could have 

manufactured at various lower levels of efficiency. However, Stuart'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 cross examination, "There's no way to tell, from what 

you had there, how much [the defendants] were actually getting from their work?" 

Stuart replied, "No, sir." 

This answer left the jury in the position of having to speculate as to Cain's 

efficiency at making methamphetamine, and therefore having to guess at how 

much of the drug he attempted to manufacture. As we stated in Brown, "the 

motion for a directed verdict should 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 offered no evidentiary basis on which the jury could 

have determined—without speculating—the quantity of methamphetamine Cain 

attempted to manufacture, the trial 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 is insufficient proof of the quantity element. In 

United States v. Eide, 297 F.3d 701 (8th Cir. 2002), the defendant was convicted of 

attempting to manufacture five grams or more of methamphetamine. 297 F.3d at 

702. On appeal, he argued the government's evidence was not sufficient as to 

quantity, and thus "he should be resentenced on the included offense of simple 

attempted manufacturing." 297 F.3d at 704. As in Cain's case, the government in 

Eide did not find any methamphetamine 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 government relied on 

expert testimony to establish the quantity of methamphetamine the 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 defendant's residence could theoretically produce 

"the highest possible yield" of 25.39 grams of methamphetamine. 297 F.3d at 703-

04. The Eighth Circuit found this evidence insufficient, stating, "Quantity yield 

figures should not be calculated without regard for the particular 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 inquiry 

is not what a theoretical maximum yield would be, or even what an average 

methamphetamine cook would produce, but what appellants themselves could 

produce"); United States v. Eschman, 227 F.3d 886, 890 (7th Cir. 2000) (holding 

"courts cannot quantify yield figures without regard for a particular 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 manufacturing conditions, ingredients, and skill of the 

accused"). 

In Eide, after rejecting the government's evidence of theoretical maximum yield, 

the Eighth Circuit focused on the expert's explanation of "the particular 

methamphetamine manufacturing processes" the defendant used, and her testimony 

"that his lithium ammonia reduction process was capable of producing a 40 to 50 

percent yield." 297 F.3d at 705. The court stated, "This yield would have resulted 

in producing 10.1 to 12.6 grams of actual methamphetamine." 297 F.3d at 704. 

The court affirmed the conviction because it found, "The particularized nature of 

Krahn's testimony, combined with additional evidence suggesting that Eide was 

experienced in the manufacture of methamphetamine, were sufficient for a jury to 

find beyond a reasonable doubt that Eide was a good cook capable of producing a 

40 to 50 percent yield." 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 actually have 

produced. If Cain were a "good cook" like Eide, "capable of producing a . . . 50 

percent yield," he would have manufactured 8.83 grams of methamphetamine, and 

thus, he could not be guilty of trafficking. 

We review the denial of a directed 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 of the accused, the 

Court must find the case was properly 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 presented some evidence 

of quantity. As we have explained, however, subsection 44-53-375(C) does not 

criminalize the theoretical possibility of manufacturing "ten grams or more" of 

methamphetamine. Because the State did not establish the level of efficiency Cain 

could have actually achieved in his attempt to manufacture methamphetamine, the 

jury was forced to speculate as to whether Cain could have actually produced the 

requisite quantity. Under this circumstance, we find the State presented "no 

evidence" that Cain attempted to manufacture ten grams or more of 

methamphetamine. The trial court erred in not granting Cain's directed verdict 

motion. 

III. Issue Preservation 

We now turn to the court of appeals' holding that Cain's argument was not 

preserved for appellate review. Our appellate courts have consistently found issues 

preserved for review when the issue 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 issue to be preserved for appellate review, it must 

have been raised to and ruled upon by the trial judge." (quoting 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 another ground on appeal, State v. Bailey, 298 S.C. 1, 5, 377 

S.E.2d 581, 584 (1989), we do not require 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 argument on appeal were 

the same: that Stuart's testimony was not sufficient to prove the quantity element of 

"ten grams or more." Thus, the argument before us now is preserved 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 the State's evidence as to quantity was not 

sufficient. In a pretrial motion to dismiss, Cain argued, "I don't think there's 

anything in [subsection 44-53-375(C)] or in South Carolina law that says you can 

take a theoretical yield3

 based on the evidence found and 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 maximum quantity of product that can be obtained from 

a chemical reaction, based on the amounts of starting materials." Reger, Goode & 

Ball, supra note 1, at 118. However, the amount actually produced "is always less 

than the theoretical yield." Id. at 123. 
distinction between trafficking and simple manufacturing, which under subsection 

44-53-375(B) contains no element of quantity, Cain necessarily focused the trial 

court's attention on the sufficiency of the State's evidence on the quantity element. 

The solicitor clearly understood the argument to relate to quantity, stating "we 

would argue that [Cain and Parkhurst] are attempting to manufactur[e] 

methamphetamine and the attempt to manufacture [is] more than, the theoretical 

yield of more than 10 grams in this case, the maximum theoretical yield is just 

about 17 grams." The trial court took the motion to dismiss under advisement. 

Cain also focused on quantity when he made his motion for a directed verdict. He 

argued, 

Your Honor, we'd make a motion 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 identified as a meth lab with 

some yield. In optimal conditions, maybe, to be a little 

over 17 grams. 

He continued his argument by drawing the same distinction between 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 back to the previous 

discussion about "theoretical yield," indicating the trial court understood the 

directed verdict motion to address 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 immediately appeared 

to understand the objection was a renewal of a previous argument); State v. 

Hendricks, 408 S.C. 525, 531, 759 S.E.2d 434, 437 (Ct. App. 2014) (holding 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 another 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 appears to relate only to the motion to dismiss. 

However, later in the transcript the trial court clarified it understood Cain to have 

renewed his directed verdict motion—on the basis of quantity—and that when it 

ruled, the trial court denied the motion to dismiss and the renewed directed verdict 

motion. 

On appeal, Cain made the same argument—theoretical yield is not sufficient 

evidence of quantity—but he complimented the argument by describing what 

evidence would be sufficient. In doing so, he used a term he had not used at trial— 

"potential yield." Cain used the term potential yield to describe for the court of 

appeals the quantity of methamphetamine a person could actually produce given 

his level of expertise in light of all the conditions present at the time. He used the 

term to draw a contrast between evidence that would be sufficient and the 

4

 The "persuasive authority" to which the trial court referred was an unpublished 

opinion from the Iowa court of appeals, State v. Knapp, No. 08-1918 (Iowa Ct. 

App. Dec. 17, 2009). The solicitor earlier relied on Knapp to support the State's 

argument that theoretical yield evidence is sufficient to prove the quantity element. 

Knapp supports neither the State's argument nor the trial court's ruling. While it is 

true the State relied on theoretical yield evidence in Knapp, the Iowa court of 

appeals affirmed based on the expert'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, the expert estimated the 

defendant could "actually produce between six and seven grams of pure 

methamphetamine." Id. 
 

 

theoretical yield evidence offered by the State, which he argued was not sufficient.5 

This was the same argument Cain made in his pre-trial motion to dismiss, his 

directed verdict motion, and his renewed directed verdict motion. Regardless of 

the labels used by Cain, his argument on appeal was the same argument 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 insufficient evidence as to the quantity of drugs 

involved in Cain's alleged trafficking in methamphetamine. Accordingly, the court 

of appeals' decision—and Cain's conviction for trafficking—are REVERSED. 

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

Pleicones, concur. 

5

 Other courts have used the terms "theoretical yield" and "potential yield" to draw 

the same contrast between the quantity of drugs that can be manufactured at 

maximum efficiency (theoretical yield) and the quantity that could actually be 

produced given the limitations of the system used and the expertise 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 sought to describe, a term 

such as "actual yield" would be more useful.