             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-212

                              Filed: 6 October 2015

Cabarrus County, Nos. 11 CRS 55632, 12 CRS 51480,12 CRS 51488-99,12 CRS
51500

STATE OF NORTH CAROLINA

            v.

MATTHEW RAY HOOKS


      Appeal by defendant from judgment entered 26 August 2014 by Judge W.

Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals

8 September 2015.


      Attorney General Roy Cooper, by Special Deputy Attorney General Grady L.
      Balentine, Jr., for the State.

      Kimberly P. Hoppin for defendant-appellant.


      TYSON, Judge.


      Matthew Ray Hooks (“Defendant”) appeals from judgment after a jury

convicted him of (1) misdemeanor child abuse; (2) manufacturing methamphetamine;

(3) trafficking in methamphetamine; and, (4) thirty-five counts of possession of an

immediate methamphetamine precursor. We find no error in Defendant’s conviction

or the judgment entered thereon.

                              I. Factual Background
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                                   Opinion of the Court



      Defendant, his girlfriend, Brandi Moss (“Moss”), and their eight-year-old son

rented a mobile home from Sue Drye (“Ms. Drye”), Moss’s mother, located in Concord,

Cabarrus County, North Carolina. They were evicted for non-payment of rent, and

Ms. Drye wanted them to move out by 16 October 2011. Ms. Drye owned a storage

shed located on the property with the mobile home. She asked Defendant to clean

his belongings out of the shed, because she wanted to rent the property to someone

else. Defendant became angry, and responded, “Nobody better not [sic] touch my

storage building.” Defendant had previously secured the shed with a lock.

      On 17 October 2011, Ms. Drye contacted Cabarrus County Sheriff’s

Department Detective Jamie Barnhardt (“Detective Barnhardt”). Ms. Drye stated

“she had received information from somebody else that [Defendant and Moss] were

cooking meth,” and she wanted law enforcement “to come take a look” before she

rented the mobile home to anyone else.          Ms. Drye expressed concern that “if

something [was] left behind, it would put others in danger[.]” Detective Barnhardt

agreed to meet with Ms. Drye at the mobile home.

      Detective Barnhardt and Ms. Drye walked through the mobile home, room by

room. As they were walking outside toward the storage shed and the playhouse, a

neighbor alerted them that a trash can between the two structures was smoking.

Detective Barnhardt lifted the lid of the trash can and discovered a clear bottle filled

with a bubbling, white “pasty, chalky substance.” Detective Barnhardt testified he



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immediately knew this was “part of a meth[] cooking operation,” based on his training

and experience.

      Detective Barnhardt notified his superiors, fire personnel, and the State

Bureau of Investigation (“SBI”). The area was cordoned off as more personnel arrived

and law enforcement awaited a search warrant, which provided for the immediate

destruction of certain dangerous chemicals.

      Law enforcement cut off the lock on the storage shed. Detective Barnhardt

testified when they opened the doors, there was “an immediate chemical reaction,”

which caused “smoke and some type of gas leak” to emanate from within. More

chemical releases occurred throughout the night as law enforcement recovered

various items from the shed and the trash can.

      Detective Barnhardt testified he saw agents remove several trash bags from

the shed, which were filled with plastic bottles “that had tubing that was coming from

the inside[.]”    The bottles contained a “white, powderish-looking substance,”

consistent with what Detective Barnhardt had observed in the original bottle from

the trash can.    Law enforcement remained on the scene until all evidence was

collected, tested by a chemist, and transported so it could be destroyed.

      Two days later, Defendant was arrested and charged with one count of

manufacturing methamphetamine and one count of misdemeanor child abuse.

Detective Barnhardt observed Defendant had chemical burns and staining on his



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hands during the fingerprinting process of Defendant’s arrest. Detective Barnhardt

testified this staining was consistent with the staining he had observed on the walls

of the storage shed.

        On 31 October 2011, a grand jury indicted Defendant for manufacturing

methamphetamine and misdemeanor child abuse. On 9 April 2012, a grand jury also

indicted Defendant for: (1) forty counts of possession of an immediate

methamphetamine precursor chemical with the intent to manufacture a controlled

substance, methamphetamine; (2) maintaining a dwelling place for keeping and

selling   a   controlled   substance,   methamphetamine;   and   (3)   trafficking   in

methamphetamine by possession of more than 28 grams but less than 200 grams of

methamphetamine.

        On 30 April 2012, a grand jury indicted Defendant in fourteen separate

superseding indictments for: (1) maintaining a dwelling place for keeping and selling

a controlled substance, methamphetamine; (2) trafficking in methamphetamine by

possession of more than 28 grams but less than 200 grams of methamphetamine; and,

(3) forty counts of possession of an immediate methamphetamine precursor chemical,

pseudoephedrine, with the intent to manufacture a controlled substance,

methamphetamine. Defendant’s case proceeded to trial before a jury on 19 August

2014.




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      Agent Stephanie Raysich (“Agent Raysich”), the North Carolina State Crime

Lab forensic scientist who responded to the scene on 17 October 2011, testified as an

expert in the investigation of clandestine manufacture of methamphetamine. Agent

Carroll Pate (“Agent Pate”), a forensic scientist with the North Carolina State Crime

Lab, took over the case after Agent Raysich became ill, and testified as an expert in

forensic drug chemistry and the investigation of clandestine manufacture of

methamphetamine.

      Agent    Pate   explained   this   particular      case   involved   manufacturing

methamphetamine using the “one-pot” method.              Agents Pate and Raysich both

testified about numerous items observed at the scene that were consistent with the

clandestine manufacture of methamphetamine, including: (1) 79 HC1 (hydrochloric

acid gas) generators; (2) two empty one-gallon cans of Coleman fuel; (3) two empty

cans of Drano; (4) one empty thirty-two-ounce plastic bottle of charcoal lighter fluid;

(5) one empty twelve-ounce plastic bottle of power steering fluid; (6) numerous pieces

of plastic and rubber tubing in various sizes and colors; (7) numerous pieces of white

paper strips, some of which contained metal material consistent with lithium; (8)

empty lithium battery packaging; (9) numerous pieces of burned aluminum foil

containing a brown-black powder residue; (10) empty box covers of instant cold packs

and empty cold pack plastic bags; (11) four partial plastic straws containing a residue

amount of white crystalline material; (12) one box of heavy duty aluminum foil; (13)



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                                   Opinion of the Court



two empty containers of salt; (14) an empty container of instant starting fluid; (15) a

full container of muriatic acid; (16) two empty cans of drain cleaner; (17) a one-

milliliter syringe; and, (18) several empty pseudoephedrine boxes and blister packs.

Six   items were    seized   for   testing    in   the laboratory,   including   an   old

methamphetamine cooking vessel and items containing various residues.                 The

remainder of the items seized at the scene were destroyed.

      Agent Pate testified the total amount of pseudoephedrine present from the

boxes and blister packs “would yield 18.9 grams methamphetamine at a one hundred

percent theoretical yield.” Agent Pate conducted a confirmatory test on a glass jar

containing a blue sludge material.      Agent Pate determined the material, which

weighed fifty-one grams, contained either pseudoephedrine or ephedrine and an

unknown amount of methamphetamine. The other items tested contained traces of

methamphetamine, but not in sufficient quantities to weigh.

      Becca Clontz (“Ms. Clontz”) bought the mobile home from Ms. Drye, and moved

in approximately six weeks after Defendant and Moss moved out. She testified one

day she was cleaning the water heater closet and discovered a piece of paper

containing what appeared to be a recipe for methamphetamine written on it. Ms.

Clontz gave the piece of paper to Ms. Drye, and Ms. Drye subsequently turned it over

to law enforcement. Ms. Drye and Moss were familiar with Defendant’s handwriting,

and both testified the handwriting on the piece of paper was that of Defendant’s.



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       William Lanuto (“Lanuto”) was a friend of Defendant and Moss. He testified

he had seen Defendant “cook[ing] meth” in the storage shed. He stated he once saw

a fire on Defendant’s porch, which appeared to grow larger as rain fell on it. Lanuto

testified he purchased pseudoephedrine for Defendant approximately twenty times,

beginning in April 2011, with the understanding that Defendant was going to use the

pseudoephedrine to “cook meth.”

       Lanuto admitted to using methamphetamine with Defendant in exchange for

purchasing pseudoephedrine. Lanuto stated he helped Defendant pack and move out

of the mobile home during October 2011. Lanuto testified Defendant was “[m]aking

meth” throughout that weekend. Lanuto was charged with eleven counts of felony

possession of a precursor chemical with the intent to manufacture methamphetamine

in relation to this case.

       Moss and Defendant no longer maintained a relationship at the time of trial.

Moss stated she and Defendant engaged in a relationship for ten years, and parented

a   child   together.       Moss   testified    she   had   witnessed   Defendant    “cook

methamphetamine” more times than she could count.

       Moss    admitted      she   bought       pseudoephedrine   in    order   to   make

methamphetamine and assisted Defendant in the process of manufacturing

methamphetamine. At the time of trial, Moss had been charged with and pled guilty

to the following charges: (1) manufacturing methamphetamine; (2) trafficking in



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methamphetamine; (3) eleven counts of possession of a precursor chemical with

intent to manufacture methamphetamine; and, (4) misdemeanor child abuse. Moss

was currently serving a ten- to thirteen-year term of imprisonment.

      Michael Rimiller (“Mr. Rimiller”), a district loss prevention manager for

Walgreens, testified about the regulations Walgreens followed with regard to the

sales of pseudoephedrine. Mr. Rimiller stated individuals were required to produce

a valid driver’s license in order to purchase pseudoephedrine. Mr. Rimiller explained

that during the relevant time period in 2011, Walgreens recorded and tracked

pseudoephedrine purchases by reporting the purchases to the National Precursor Log

Exchange (“NPLEx”).

      The NPLEx system collects data of over-the-counter pseudoephedrine and

ephedrine sales “in real time at the point of sale and also measures all those

purchases against the laws that are in effect[.]” The NPLEx system is used to inform

the sales clerk whether to proceed with the sale. The information from the NPLEx

system is subsequently made available to law enforcement in a separate report.

      James Reilly (“Mr. Reilly”), director of health and wellness at Walmart,

testified he was responsible for maintaining pharmacy compliance.         Mr. Reilly

explained Walmart maintained compliance logs of pseudoephedrine purchases in

order to keep track of the daily, monthly, and annual limits of pseudoephedrine




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                                  Opinion of the Court



purchases. He testified Walmart also required the purchaser of pseudoephedrine to

present a valid form of photo identification.

      SBI Special Agent William Galloway (“Agent Galloway”) responded to reports

of a possible “meth lab” at Defendant’s former residence on 17 October 2011. Agent

Galloway obtained the search warrant and was in charge of crime scene

documentation. He conducted witness interviews and obtained Defendant’s phone

records. Agent Calloway requested the pseudoephedrine purchase records for the

eight months prior to the discovery of Defendant’s “meth lab” for certain individuals

based on frequently dialed phone numbers in Defendant’s call log.

      Agent Galloway summarized NPLEx records of pseudoephedrine purchases

from Walgreens and Walmart made by Defendant, Moss, Lanuto, Aaron Tallent

(“Tallent”), and Fred Cook (“Cook”). He testified: Tallent purchased pseudoephedrine

six times between 9 July 2011 and 1 September 2011; Lanuto purchased

pseudoephedrine seventeen times and was blocked from purchasing pseudoephedrine

once between 25 June 2011 and 14 October 2011; Moss purchased pseudoephedrine

twelve times between 22 March 2011 and 24 July 2011; and Defendant purchased

pseudoephedrine thirty-five times and was blocked from purchasing pseudoephedrine

five times between 4 May 2011 and 11 October 2011.

      Defendant did not exercise his right to testify at trial, nor did he offer any

additional evidence. Defendant moved to dismiss the charges at the close of all of the



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evidence.   The trial court denied Defendant’s motion.      The State dismissed the

charges of maintaining a dwelling and five counts of possession of an immediate

precursor chemical.

      The jury returned a verdict of guilty on all remaining charges. The trial court

sentenced Defendant to 83 to 109 months imprisonment for his manufacturing

methamphetamine conviction.       The trial court also sentenced Defendant to a

consecutive mandatory term of 70 to 84 months imprisonment for trafficking in

methamphetamine, four consecutive terms of 19 to 23 months imprisonment for the

thirty-five counts of possession of a precursor chemical, and a consecutive term of 150

days imprisonment for his misdemeanor child abuse conviction.

      Defendant gave notice of appeal in open court.

                                      II. Issues

      Defendant argues the trial court erred by (1) denying his motion to dismiss the

charge of trafficking in methamphetamine due to a fatal variance between the

indictment and the State’s evidence at trial; and (2) denying his motion to dismiss

the thirty-five counts of possession of the precursor chemical pseudoephedrine due to

insufficient evidence.

                                    III. Analysis

                                  A. Fatal Variance




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                                  Opinion of the Court



      Defendant argues the trial court erred by denying his motion to dismiss the

charge of trafficking in methamphetamine and asserts a fatal variance between the

indictment and the State’s evidence. Defendant contends the superseding indictment

alleged he “unlawfully, willfully and feloniously did possess more than 28 grams but

less than 200 grams of methamphetamine[,]” but the trial court instructed the jury it

could convict Defendant of trafficking in methamphetamine, if it found Defendant

knowingly possessed “any mixture containing methamphetamine.”

                               1. Standard of Review

      “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).

             A motion to dismiss based on insufficiency of the evidence
             to support a conviction must be denied if, when viewing the
             evidence in the light most favorable to the State, there is
             substantial evidence to establish each essential element of
             the crime charged and that defendant was the perpetrator
             of the crime.

State v. Cody, 135 N.C. App. 722, 727, 522 S.E.2d 777, 780 (1999) (citation and

internal quotation marks omitted).

      This Court reviews the sufficiency of an indictment de novo. State v. Marshall,

188 N.C. App. 744, 748, 656 S.E.2d 709, 712 (2008). “An indictment must set forth

each of the essential elements of the offense. . . . To require dismissal any variance

must be material and substantial and involve an essential element.” State v. Pelham,




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164 N.C. App. 70, 79, 595 S.E.2d 197, 203 (citations omitted), appeal dismissed and

disc. review denied, 359 N.C. 195, 608 S.E.2d 63 (2004).

                                      2. Analysis

      “In order to preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection or motion, stating the specific

grounds for the ruling the party desired the court to make if the specific grounds were

not apparent from the context.” N.C.R. App. P. 10(a)(1); see also State v. Maness, 363

N.C. 261, 273, 677 S.E.2d 796, 804 (2009), cert. denied, 559 U.S. 1052, 176 L. Ed. 2d

568 (2010). A defendant must state at trial a fatal variance is the basis for his motion

to dismiss in order to preserve a fatal variance argument for appellate review. State

v. Curry, 203 N.C. App. 375, 384, 692 S.E.2d 129, 137, disc. review denied, 364 N.C.

437, 702 S.E.2d 496 (2010).

      Defendant based his motion to dismiss solely on insufficiency of the evidence.

Defendant did not allege the existence of a fatal variance between the indictment and

the jury instructions.   When the trial judge asked the parties if they had any

questions regarding the proposed jury instructions, counsel for Defendant replied,

“None from the defense, Your Honor.”

      Defendant seeks for the first time on appeal to argue the trial court erred by

denying his motion to dismiss due to a fatal variance between the indictment and the

State’s proof at trial. Defendant failed to raise or make this argument in support of



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his motion to dismiss at trial. Because Defendant failed to properly preserve this

issue, he has waived his right to appellate review on this issue. Weil v. Herring, 207

N.C. 6, 10, 175 S.E. 836, 838 (1934) (“[T]he law does not permit parties to swap horses

between courts in order to get a better mount” on appeal). We decline to address the

issue and dismiss this issue.

                                B. Insufficient Evidence

      Defendant argues the trial court erred by denying his motion to dismiss the

thirty-five counts of possession of the precursor chemical pseudoephedrine.

Defendant contends the State presented insufficient evidence to prove (1) he

possessed pseudoephedrine; and (2) the chemical composition of the alleged controlled

substance.

                                1. Standard of Review

      “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

Smith, 186 N.C. App. at 62, 650 S.E.2d at 33 (citation omitted). “When reviewing a

defendant’s motion to dismiss, this Court determines only whether there is

substantial evidence of (1) each essential element of the offense charged and of (2) the

defendant’s identity as the perpetrator of the offense.” State v. Fisher, __ N.C. App.

__, __, 745 S.E.2d 894, 900-01 (citations and internal quotation marks omitted), disc.

review denied, 367 N.C. 274, 752 S.E.2d 470 (2013).

             In reviewing challenges to the sufficiency of evidence, we
             must view the evidence in the light most favorable to the


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             State, giving the State the benefit of all reasonable
             inferences.    Contradictions and discrepancies do not
             warrant dismissal of the case but are for the jury to resolve.
             The test for sufficiency of the evidence is the same whether
             the evidence is direct or circumstantial or both.
             Circumstantial evidence may withstand a motion to
             dismiss and support a conviction even when the evidence
             does not rule out every hypothesis of innocence.

State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455 (citations and internal

quotation marks omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).

      “If there is any evidence tending to prove guilt or which reasonably leads to

this conclusion as a fairly logical and legitimate deduction, it is for the jury to say

whether it is convinced beyond a reasonable doubt of defendant’s guilt.” State v.

Franklin, 327 N.C. 162, 171-72, 393 S.E.2d 781, 787 (1990) (citation omitted).

                                     2. Analysis

          (a) Insufficient Evidence of Possession of a Precursor Chemical

      Defendant argues the State presented insufficient evidence to prove he had

actual or constructive possession of products containing pseudoephedrine, a

precursor chemical to methamphetamine. We disagree.

      N.C. Gen. Stat. § 90-95(d1)(2) makes it unlawful for any person to “[p]ossess

an immediate precursor chemical with intent to manufacture methamphetamine[.]”

N.C. Gen. Stat. § 90-95(d1)(2)(a) (2013).     “To prove that a defendant possessed

contraband materials, the State must prove beyond a reasonable doubt that the




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defendant had either actual or constructive possession of the materials.” State v.

Loftis, 185 N.C. App. 190, 197, 649 S.E.2d 1, 6 (2007) (citation omitted).

             A person has actual possession of a substance if it is on his
             person, he is aware of its presence, and either by himself or
             together with others he has the power and intent to control
             its disposition or use. Constructive possession, on the other
             hand, exists when the defendant, while not having actual
             possession, has the intent and capability to maintain
             control and dominion over the [substance]. When the
             defendant does not have exclusive possession of the
             location where the drugs were found, the State must make
             a showing of other incriminating circumstances in order to
             establish constructive possession.

State v. Boyd, 177 N.C. App. 165, 175, 628 S.E.2d 796, 805 (2006) (citations and

internal quotation marks omitted). “Constructive possession depends on the totality

of the circumstances in each case. No single factor controls, but ordinarily the

question will be for the jury.” State v. Sinclair, 191 N.C. App. 485, 492, 663 S.E.2d

866, 872 (2008) (citation and internal quotation marks omitted).

      Defendant argues the State’s evidence was insufficient to prove he had

constructive possession of pseudoephedrine. He asserts no pseudoephedrine was

actually located on his person, on his premises, or seized and taken into evidence from

any location. Defendant also contends the evidence was insufficient to support his

convictions of a precursor chemical because the State did not present any testimony

from any pharmacist or store clerk identifying him as the individual who actually

made particular purchases of pseudoephedrine on particular dates. We disagree.



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                                 Opinion of the Court



      The State charged Defendant with thirty-five counts of possession of a

precursor chemical based upon his alleged purchases and possession of

pseudoephedrine. The trial court admitted into evidence a summary, created by

Detective Galloway, of the records of pseudoephedrine purchases for Moss, Lanuto,

Tallent, Cook, and Defendant. Detective Galloway testified this summary showed

Defendant’s ID was used to purchase pseudoephedrine from Walgreens and Walmart

on thirty-five separate occasions.   Five additional purchases were blocked when

Defendant’s ID was used in attempt to purchase pseudoephedrine.

      Moss testified she and Defendant purchased pseudoephedrine. She admitted

she had seen Defendant “cooking meth” numerous times, and assisted him in the

process. Lanuto, Tallent, and Cook all testified they had purchased pseudoephedrine

for Defendant on several occasions.     Lanuto also witnessed Defendant cooking

methamphetamine. Agents on the scene documented a number of empty Sudafed

and Sufedrin blister packs, and at least two empty Sudafed boxes — both of which

are products containing pseudoephedrine.

      Substantial evidence was admitted from which a jury could reasonably find

and conclude Defendant possessed pseudoephedrine to support his conviction of

thirty-five counts of a precursor chemical to methamphetamine. This argument is

overruled.

                (b) Insufficient Evidence of a Controlled Substance



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      Defendant argues the State presented insufficient evidence to prove the items

he allegedly possessed were actually controlled substances. He asserts no chemical

analysis or testimony about the chemical makeup of the particular items purchased

was presented. We disagree.

      Our Supreme Court has held chemical analysis is required to accurately

identify controlled substances:

             [T]hroughout the lists of Schedule I through VI controlled
             substances found in sections 90-89 through 90-94, care is
             taken to provide very technical and “specific chemical
             designations” for the materials referenced therein. . . .
             These scientific definitions imply the necessity of
             performing a chemical analysis to accurately identify
             controlled substances before the criminal penalties of
             N.C.G.S. § 90-95 are imposed.

State v. Ward, 364 N.C. 133, 143, 694 S.E.2d 738, 744 (2010) (emphasis supplied).

      Defendant was charged with, and a jury convicted him of, thirty-five counts of

possession of pseudoephedrine, a precursor chemical to methamphetamine, under

N.C. Gen. Stat. § 90-95. N.C. Gen. Stat. § 90-95(d1)(2)(a) (2013). The necessity of

performing chemical analysis is limited to controlled substances. N.C. Gen. Stat. §

90-87 defines “controlled substance” as “a drug, substance, or immediate precursor

included in Schedules I through VI of [the North Carolina Controlled Substances

Act].” N.C. Gen. Stat. § 90-87(5) (2013). Pseudoephedrine is not listed as a controlled

substance under Schedules I through VI in N.C. Gen. Stat. §§ 90-89 through 90-94.

Pseudoephedrine is a precursor chemical, not a controlled substance, and a chemical


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analysis was not required to support Defendant’s convictions of possession of

pseudoephedrine. This argument is without merit and is overruled.

                                   IV. Conclusion

      Defendant failed to assert and preserve his argument that a fatal variance

existed between the indictment and the proof at trial.

      The    State    presented    substantial      evidence   Defendant   possessed

pseudoephedrine, a precursor chemical to methamphetamine. The State was not

required to present evidence that a chemical analysis was performed to establish the

identity of pseudoephedrine. The trial court did not err by denying Defendant’s

motion to dismiss for insufficient evidence.

      Defendant received a fair trial free from prejudicial errors he preserved and

argued. We find no error in Defendant’s conviction or the judgment entered thereon.

      NO ERROR.

      Judges BRYANT and GEER concur.




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