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State v. Cain, Appellate Case No. 2015-001983– Excellent SCSCt Win in “Theoretical Weight” Drug Trafficking Case (filed January 5, 2017)

January 9th, 2017
Elizabeth Franklin-Best

This is an excellent result for Mr. Cain, but practitioners need to beware because the Court offers guidance on how these cases can be prosecuted in the future without running into the problem here that necessitated the reversal.

The facts are straightforward– law enforcement searched a house where Cain was present. They did not find any methamphetamine, but they did find a number of precursors, including packages of Sudafed.  The State relied on one expert, Beth Stuart, a forensic chemist employed by the Spartanburg County Sheriff’s Office.  She calculated, using a scientific theory called “stoichiometry” that the empty packages once contained 19.2 grams of pseudoephedrine and could, theoretically, produce 17.67 grams of meth if Cain manufactured the meth with “maximum efficiency.”  Based on this theoretical yield, Cain was charged with trafficking (a charge contingent on the weight of the illegal substance).

During examination of the expert, the State elicited that even with an approximate yield of 65% (much less than “maximum efficiency), the theoretical yield of methamphetamine would still exceed the 10-gram limit necessary to implicate the trafficking statute.

The Court held this was not good enough.  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, 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”).

But, our Supreme Court did note that under an Eighth Circuit Court of Appeals case, United States v. Eide, 297 F.3d 701 (8th Cir. 2012), the conviction there was affirmed when the “particularized nature of…[the expert’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.”  In other words, if the State introduces evidence that your client is somehow experienced in meth production, it may be sufficient for the issue to make it to a jury.

A very good result for Mr. Cain, but litigators should be cautious in handling these cases in the future as there is clearly a way forward for the State to prove trafficking using theoretical yields.

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