October 20, 2016
OF CERTIORARI TO THE COURT OF APPEALS
from Spartanburg County R. Lawton McIntosh, Circuit Court
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.
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.
Facts and Procedural History
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,  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."
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
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) 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
Evidence of Quantity
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.
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.
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 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."
the quantity of methamphetamine that could be produced from
this method, Stuart and the solicitor had the following
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 . ...