THIRD DIVISION

ELLINGTON, P. J.,

DILLARD and MCFADDEN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

July 13, 2015

In the Court of Appeals of Georgia

A15A0653. THE STATE v. WRIGHT.

MCFADDEN, Judge.

The state appeals from the trial court’s grant of a general demurrer against an

indictment’s count alleging that Tommy Lugene Wright committed the offense of

possession of a controlled substance in violation of OCGA § 16-13-30 (a). We affirm,

because the indictment does not identify a substance listed as a controlled substance

under the statute.

“A general demurrer challenges the sufficiency of the substance of the

indictment[.]” Bryant v. State, 320 Ga. App. 838, 841 (3) (740 SE2d 772) (2013)

(citation omitted). “An indictment shall be deemed sufficiently technical and correct

to withstand a general demurrer if it ‘states the offense in the terms and language of

this Code or so plainly that the nature of the offense charged may easily be
understood by the jury.’” State v. Corhen, 306 Ga. App. 495, 497 (700 SE2d 912)

(2010) (quoting OCGA § 17-7-54 (a)).

[I]f an accused would be guilty of the crime charged if the facts as

alleged in the indictment are taken as true, then the indictment is

sufficient to withstand a general demurrer; however, if an accused can

admit to all of the facts charged in the indictment and still be innocent

of a crime, the indictment is insufficient and is subject to a general

demurrer.

Id. (citation omitted). This presents a question of law that we review de novo. State

v. McDowell, 301 Ga. App. 751 (688 SE2d 417) (2009).

The indictment in this case alleged that Wright “unlawfully possess[ed] and

[had] under [his] control 3, 4-methylenedioxy-N-ethylcathinone (ethylone), a

substituted 2-aminopropan-1-one, a Schedule 1 controlled substance, in violation of

OCGA § 16-13-30 (a)[.]” This description of the substance is not sufficient to show

that it is a controlled substance within the meaning of the statute. Cf. Nixdorf v. State,

226 Ga. 615, 617 (1) (a) (176 SE2d 701) (1970) (considering, in ruling on demurrer,

whether allegations in indictment were sufficient to show defendant’s office was

“private place” withinmeaning of statute establishing offense of eavesdropping). The

substance “3, 4-methylenedioxy-N-ethylcathinone (ethylone)” does not appear by

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name within the statutory list of Schedule 1 controlled substances. See OCGA § 16-

13-25. The state argues that the phrase “a substituted 2-aminopropan-1-one” indicates

that the substance falls under OCGA § 16-13-25 (12) (L), which in pertinent part

identifies as a Schedule 1 controlled substance “[a]ny compound . . . structurally

derived from 2-aminopropan-1-one by substitution at the 1-position with either

phenyl, naphthyl, or thiophene ring systems[.]” But the indictment’s language does

not clearly refer to a substance under OCGA § 16-13-25 (12) (L). Its use of the term

“substituted” is ambiguous and could be construed to include compounds that do not

match the precise definition of the statute and, thus, are not controlled substances. So

construed, the indictment would not charge a crime. See generally Tibbs v. State, 211

Ga. App. 250, 251 (1) (438 SE2d 706) (1993) (indictment that alleged defendant had

violated statute pertaining to “dangerous drugs” but identified substances that were

not “dangerous drugs” butrather “controlled substances” failed to state any crime and

would have been subject to demurrer had defendant timely filed such demurrer).

“An indictment isto be strictly construed against the state when a demurrer has

been filed against it.” Jack Goger, Daniel’s Ga. Criminal Trial Practice, § 13-4 (2014-

2015 ed.) (citations omitted). Because this indictment can be construed such that

Wright would not be guilty of the crime of possession of a controlled substance if the

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facts as alleged in the indictment were taken as true, we find no error in the trial

court’s grant of the general demurrer to Wright on that count.

Judgment affirmed. Ellington, P. J., concurs; Dillard, J., concurs in the

judgement only.

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