                     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.
