Serna v. State
308 Ga. App. 518
Ga. Ct. App.2011Background
- Serna convicted after jury trial of sexual battery, possession of dangerous drugs, and furnishing alcohol to a person under 21.
- On appeal, Serna challenges the dangerous-drug conviction on sufficiency, fatal-variance, and intent grounds.
- Evidence showed Serna gave K.M. a sedative via a small bottle labeled Amsterdam Poppers; K.M. was sedated and sexually touched by Serna.
- Police later found a bottle labeled Amsterdam Poppers in Serna’s residence, which matched the sedative described by K.M.
- The indictment alleged possession of a dangerous drug, Amyl Nitrate; the evidence showed alkyl nitrite, a dangerous drug, creating a name discrepancy but not a fatal variance.
- Court held the variance harmless and affirmed all convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a fatal variance regarding the dangerous-drug count? | Serna argues the indictment mislabeled the drug as amyl nitrate. | State argues the variance did not prejudice rights and is harmless. | Variance not fatal; harmless error; conviction affirmed. |
| Was the evidence sufficient to prove possession of a dangerous drug as charged? | Serna claims proof matched a different substance than the one named in the indictment. | State contends the substance (alkyl nitrite) is a dangerous drug and properly proved. | Sufficient evidence to prove possession of a dangerous drug under the statute. |
| Did Serna have intent to possess a dangerous drug despite not knowing the exact chemical name? | Unknown chemical name negates intent. | Knowledge may be inferred from admission and conduct; intent proven by sedation use. | Knowledge and intent may be inferred; Sedative use supports intent to possess a dangerous drug. |
Key Cases Cited
- Hardin v. State, 142 Ga.App. 795, 237 S.E.2d 202 (1977) (harmless variance when naming differs from proven substance)
- Mincey v. State, 303 Ga.App. 257, 692 S.E.2d 809 (2010) (knowledge may be proven circumstantially under OCGA § 16-2-6)
- Riley v. State, 292 Ga.App. 202, 663 S.E.2d 835 (2008) (supporting evidence for criminal intent via circumstantial proof)
- Wilson v. State, 57 Ga.App. 839, 197 S.E.2d 48 (1938) (ignorance of the law does not excuse criminal liability)
- McKay v. State, 234 Ga.App. 556, 507 S.E.2d 484 (1998) (indictment sufficiency and issues of variance)