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Ledford v. State6/28/1999
WHOLE COURT
A Whitfield County jury found Jeffery Lynn Ledford guilty of intentional inhalation of paint fumes as proscribed by OCGA § 16-13-91. He appeals, challenging the sufficiency of the evidence.
The Whitfield County Sheriff's Office received a call regarding a domestic dispute involving Ledford, in which Ledford's trailer was burned. Ledford was located in another trailer near the scene. The deputies knocked on the door of the trailer, and Ledford answered. They asked him if he was alright. Ledford started to cry. He immediately held out his wrists and blurted out, "I'm sorry, I'm ready to go. I'm sorry; I burned my trailer down." Ledford was extremely emotional and upset; he was "nervous and shaking." The deputies attempted to calm Ledford down and ask him what happened. While relating his version of events, Ledford pointed to a paper bag containing a can of gold spray paint and paper towels saturated with gold paint. Ledford told the deputies that he had been "huffing" paint and that he did so whenever "his nerves are shot." Ledford had traces of gold paint around his nose and mouth. The label on the spray can stated that the paint contained "toluene." At trial, the State introduced similar transaction evidence showing that Ledford had pled guilty to intentional inhalation of paint fumes on three prior occasions. Held:
In challenging the sufficiency of the evidence introduced against him, Ledford contends that there was insufficient evidence to demonstrate that the contents of the spray paint can included the chemical toluene. We are constrained to agree.
The offense of intentional inhalation occurs when one intentionally, for the purpose of causing a condition of intoxication, etc., smells or inhales the fumes from any "model glue." OCGA § 16-13-91. In that regard, "model glue" is defined as any chemical substance containing certain proscribed chemicals, inter alia, acetone and toluene. OCGA § 16-13-90. Ledford was indicted for inhaling "paint containing acetone and toluene." Thus, the presence of either acetone or toluene is an essential element of the offense of intentional inhalation as indicted.
In this case, the State proved that the inhaled paint contained the chemical toluene solely through the introduction of the gold spray paint can which carried a contents label identifying toluene as one of its ingredients. There was no objection to the introduction of the can or to the reading of its label to the jury. However, this evidence, alone, is insufficient as a matter of law. The presence of toluene, an essential element of the crime, cannot be proved only through the introduction of the spray can. The contents label is hearsay and, absent a recognized exception, cannot prove the truth of the matter asserted thereon. See, e.g., Taylor v. State, 144 Ga. App. 534 (241 SE2d 590) (1978). " earsay, even when admitted into evidence without objection, lacks probative value to establish any fact." Howell Mill/Collier Assoc. v. Pennypacker's, 194 Ga. App. 169, 171 (2) (390 SE2d 257) (1990). See also Curtis v. State, 190 Ga. App. 173, 175 (378 SE2d 516) (1989). Since no competent evidence proved that the inhaled paint contained either acetone or toluene as required by OCGA § 17-13-90, the State failed to prove the crime pursuant to OCGA § 17-13-91.
The Dissent's reliance on the necessity exception to the hearsay rule is misplaced. The necessity exception to the hearsay rule has two components: (1) necessity and (2) particularized guarantees of trustworthiness. Chapel v. State, 270 Ga. 151, 155 ( SE2d ) (1998).
1. With regard to the first component, necessity, the Dissent asserts that a necessity for an exception to the
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