Penalty provision held constitutional.

- O.C.G.A. § 16-13-30.1, which subjects a defendant to a greater penalty for the sale of a non-controlled substance than for the sale of some controlled substances, does not violate due process. Thompson v. State, 254 Ga. 393, 330 S.E.2d 348 (1985).

Applicability.

- Defendant was erroneously convicted of felony selling a non-controlled substance under O.C.G.A. § 16-13-30.1(a)(1)(A) where the subject conduct also violated O.C.G.A. § 16-13-30.2, which makes it a misdemeanor to possess or distribute an "imitation controlled substance"; the state improperly prosecuted defendant for violating the statute with the greater penalty rather than the one with the lesser penalty. Brown v. State, 276 Ga. 606, 581 S.E.2d 35 (2003).

O.C.G.A.

§ 16-13-30.2 is not a lesser included offense. - O.C.G.A. § 16-13-30.2 cannot be considered a lesser included crime of O.C.G.A. § 16-13-30.1 under the required evidence test because the plain language of § 16-13-30.2 requires proof of a fact not required for a conviction under § 16-13-30.1. State v. Burgess, 263 Ga. 143, 429 S.E.2d 252 (1993).

Not included offense of sale of controlled substance.

- Offense of unlawfully selling a noncontrolled substance while representing the substance to be a controlled substance (O.C.G.A. § 16-13-30.1) is not included in the offense of conspiracy to sell or distribute cocaine (O.C.G.A. § 16-13-30). Smith v. State, 202 Ga. App. 664, 415 S.E.2d 481 (1992).

Jurors may use experience to determine whether drug was represented.

- Jury properly concluded, based on their common sense and the ordinary test of human experiences, that $20 is "substantially in excess of" the "reasonable value" of an ordinary pebble such as one might pick up off the ground and that the appearance of the noncontrolled substance was so "substantially identical" to that of rock cocaine that an undercover agent whose assignment was to purchase actual cocaine bought it. Billups v. State, 206 Ga. App. 91, 424 S.E.2d 355 (1992).

Conviction was relevant under U.S. Sentencing Guidelines.

- When a defendant appealed a 72-month sentence for violating 18 U.S.C. § 922(g)(1), which was enhanced pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(a)(2), the defendant's argument was foreclosed that the defendant's non-controlled substance conviction under O.C.G.A. § 16-13-30.1(a)(1) was not a controlled substance offense under U.S. Sentencing Guidelines Manual § 4B1.2(b). United States v. James, F.3d (11th Cir. Oct. 17, 2017)(Unpublished).

Rule of lenity did not apply to a defendant's conviction of felony possession with intent to distribute a noncontrolled substance, O.C.G.A. § 16-13-30.1, because the evidence did not show that the substance at issue was an "imitation controlled substance" for purposes of misdemeanor unlawful manufacture, distribution, or possession with intent to distribute of imitation controlled substances, O.C.G.A. § 16-13-30.2; although the noncontrolled substance at issue was in common packaging for narcotics, the evidence did not show that it appeared as a "dosage unit" based on color, shape, size, or markings or was specifically designed or manufactured to resemble a controlled substance. Therefore, the evidence failed to establish that the defendant's conduct fell within § 16-13-30.2(a). Diaz v. State, 296 Ga. App. 589, 676 S.E.2d 252 (2009).

Rule of lenity did not apply to conviction for imitation controlled substances.

- Trial court did not err by refusing to apply the rule of lenity with regard to a defendant's conviction for selling a counterfeit substance because the evidence revealed that the substance would not fall under either definition of "imitation controlled substance" set forth in O.C.G.A. § 16-13-21(12.1)(A) as the parties stipulated only that the substance recovered was not a controlled substance and there was no evidence presented that it was specifically designed or manufactured to resemble the physical appearance of a controlled substance. As a result, the rule of lenity did not apply, and the trial court properly sentenced the defendant for a felony. Chandler v. State, 294 Ga. App. 27, 668 S.E.2d 510 (2008).

Evidence sufficient to support conviction.

- Evidence was sufficient to support a defendant's convictions under O.C.G.A. § 16-13-30.1 for possessing with intent to distribute a substance represented to be cocaine and possessing with intent to distribute a substance represented to be methamphetamine because, although the defendant argued that the defendant was merely a backseat passenger in a vehicle involved in the underlying transaction who was not shown to be in either actual or constructive possession of the substance at issue, evidence established that the defendant negotiated to sell to an agent a substance expressly represented to be cocaine and a substance expressly represented to be methamphetamine; this material was in the car with the defendant, who handed the material to a third person who was to deliver the substance to the agent, and, the claim that the defendant acted innocently was refuted by the third person's testimony that the third person and the defendant knew what was going on and that the third person called the defendant to ask about drugs in connection with this transaction. Any rational trier of fact could have concluded beyond a reasonable doubt that the defendant was a party to the crimes. Diaz v. State, 296 Ga. App. 589, 676 S.E.2d 252 (2009).

ALR.

- Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute - state cases, 83 A.L.R.4th 629.