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Scott v. State

Court of Appeals of Georgia

March 20, 2015

SCOTT
v.
THE STATE

Cert. applied for.

Drug violation. Toombs Superior Court. Before Judge Palmer.

Robert L. Persse, for appellant.

S. Hayward Altman, District Attorney, Rizza C. Palmares, Jessica B. Wilson, Assistant District Attorneys, for appellee.

OPINION

Page 94

McMillian, Judge.

In Scott v. State, 295 Ga. 39 (757 S.E.2d 106) (2014), our Supreme Court overruled a long line of cases on the knowledge required to prove trafficking in cocaine under the former version of OCGA § 16-13-31 (a) (1).[1] Accordingly, the Supreme Court reversed the part of our holding in Scott v. State, 320 Ga.App. XXVI (March 11, 2013) (unpublished), in which we relied on that precedent to affirm Scott's conviction, and directed us upon remand " to determine whether the evidence at trial was sufficient to prove beyond a reasonable doubt that [Kenneth] Scott knew that the cocaine he possessed weighed 28 grams or more." Scott, 295 Ga. at 42 (3), n. 5. We have reviewed the evidence in light of this directive and once again conclude that the evidence was sufficient to convict Scott of trafficking in cocaine under [331 Ga.App. 396] former OCGA § 16-13-31 (a) (1).[2] Further, we

Page 95

also have considered and reject Scott's contention that in light of the " change" in the law, he will be denied due process and his right to a trial by jury if we merely affirm his conviction instead of allowing him to be retried.[3] Accordingly, we now affirm Scott's conviction as more fully set forth below.

1. We start with the applicable version of OCGA § 16-13-31 (a) (1), which provides in relevant part as follows:

Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, as described in Schedule II, in violation of this article, commits the felony offense of trafficking in cocaine[.]

As the Supreme Court explained in Scott :

The plain language of the version of former OCGA ยง 16-13-31 (a) (1) at issue dictates the conclusion that knowledge of the quantity of the drug was an element of the crime. It contains express scienter requirements, that is, knowledge of the nature and amount of the drug and of being in possession of it. And, certainly, where " knowledge" is made part ...

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