295 Ga. 39

FINAL C OPY S13G104 2. SCOTT v. THE STATE. HINES, Presiding Justice. This Court

grante d certi orari to the Cour t of Appe als in Scott

v. State , 320 Ga. Ap p. XXV I (Case

No. A12A2293, dec ided Ma rch 11, 20 13) (not to b e officially reported) to consider whether former OCGA § 16-1 3-31 (a) (1), which setforth the eleme nt s of the felon y offense of tr afficking in cocaine, required proof that the defenda nt had know ledge of the weight of the d rug. Find ing that the C ourt of Appe als er

red in c oncluding t

hat proof o f the know ledg e of th e weight or quantit y of cocaine was not an e lement of theoffense , we reverse a nd
rema nd. Kenne th Sc ott was convicted of traffickin g in cocaine and related charges after he was found in possession of, inter alia, 37 individually wrapped packets of

powder cocaine, a twist -tied package of cocaine, a “slab ” of cocaine, crack cocaine packaged for r esale, packages of marijuana, a mirror and a cutting tool, and several loaded handguns . The state crime laboratory deter mined that among the subst ances seize d was 72. 65 gram s of a coc aine mixtur e regis tering1 The version of the statute applicable to Scott was effective July 1, 2003 to June 30,

2012. The statute was amended, effective July 1, 2012 to June 30, 2013, and its present version 2 72.6 percent p urity of cocaine. At the times of the c rimes in 2009 and Scott’s trial in 2010, former OCG A § 16-13-31(a) (1) provided, in relevant part: Any person wh o knowingly

sells, manuf

acture s, delivers, or

brings into this sta

te or who is knowingly

in posses sion of 28 gra

ms or m ore of cocaine or of any mixtu re w ith a puri ty of 10 percent o r moreof cocaine, as described in Schedule II, in violation of this article c ommits the felony off

ense of traffick ing in cocaine . . . . (Emphasis sup plied.) In his appe al to the

Court of A

ppeals, Scott a

rgued tha t his conv iction f

or traffic king in cocaine had to b e reversed bec ause the e vidence faile d to show that he knew that the

coca ine weighed more than 2 8 grams; he maintained th at knowledge

of the qua

ntity of the drug w as an e lementof the offense. Citing its
own prec edent, the Court of A ppeals held tha

t proof of know ledge of the quantityof cocaine was not an e ssential element of the offense of trafficking in cocaine. Scott v. State , supra a t Divisio n 6 (d). B ut, such holding is in error. 1. The

plain la nguage of

the ver sion of form er OCG A § 16-13-31 ( a) (1) at issue 1 dictates the conclu sion that k nowledge of t he quantity of the drug wasbecame effective July 1, 2013. 3 an element of the crime. I t contai ns expre ss scie nter re quirem ents, t hat is, knowledge

of the natureand amount of thedrug and of being in po ssession of it. And, c ertainly whe re “knowl edge”is ma de part of an offense, the Stat e has the burden to p rove the

defenda nt’s guilty kno wledge. Phagan v. State , 268 Ga. 272, 278 (3) (c) (48 6 SE2d 87 6) (1997 ). Finding “knowing ly” i n the former cocaine traffick ing statute to be a require ment

as to each of the e lements of the c rime is consiste nt with pr ior strict construc tions of the st atute a ndwith how the ter m “knowingl y” has been applied in other statutes . See Lockwood v. State , 257 Ga. 796 (364 SE2d 574) (1988); Bundren v. State , 247 Ga . 180 (274 SE 2d 45 5) (1981 ). Indeed, a criminal st a tute that introduces the ele ments of a crim e with the word “knowingly” is ordinarilyconstrued as ap plying that wo rd to each element of the o ffense. Flores- Figueroav. United States , 556 U. S. 646, 652 (II) (129 SCt 18 86, 173 LE2d 853) ( 2009). Furthermore, a statute is to be c onstrued “ ‘to give s ensible and inte lligent effectto all i ts provisio ns and to re frain fro m any interpretation

which re nders any part of the statute meaningles s.’” Motors Acceptance Corp. v. Rozier , 2784

Ga. 52, 53 (597 SE 2d 367) (2004). And, the interpretation

by the Court of Appeal s, has donejust

that; i t rende rs mea

ningless the exp ress re quirem ent of know ledge of the amount of cocaine possessed. The am ount of th e dru g possessed may

cert ain ly be si gnifica

nt in rega rd to the v iewed

severi ty of the offense, and the consequ ent sanction f or its commission . See, e.g., OCGA § 16- 13-30, whi ch crim

inaliz es, inter alia, posses sion of les ser amounts of co caine. In Wilson v. State , 291 Ga. 458 (7 29 SE2d 3 64) (201 2), which was n ote d in the opinion of the Court of Appeals, this Court ac knowledged th e poten tial merit of Wilson’s argume nt that f ormer OCGA § 16-13-31 (c ) require d proof that he knew the

amount of the c ontrolle d substanc e he poss essed. However, a definitive determination of the issue was un nece ssary i n t hat ca se bec ause th e question on appea l was w hether the tria

l court’s ins tructi on to the jury that a convict ionof traff

icking di d not req uire such pr oof consti tuted “plain error.” Id. And, be cause

of the e xistenc e of

precedent from the Court of Appeals supporting

such instr uction, t his Court conclud ed that

giving it c ould not constitute “ plain error.” Id
. 2. In a 2013 amendme

nt to OCGA § 16-13-31, the General As sembl y2 Present O CGA § 16-1 3-31 (a) provides : (1) Any person w ho sells, ma

nufactu res, del ivers, or

brings i nto this state or who is in possession of 28 grams or more of cocaine or of any mixture with

a purity of 10 per cent or more of c ocaine, as descr ibed in Schedule II , in violation of this article commits the felony offe nse of trafficking in cocaine and, upon convic tion thereof, shall be punished as follows: (A) I f the qua

ntity of the co caine or

the mixture

involved i s 28 grams or more, but less than 200 grams, the pe rson shall be sentenced to a mandatory minimum term of imprisonment of ten ye ars and shall pay

a fine of $200,000. 00; (B) I f the qua

ntity of the co caine or

the mixture

involved i s 200 grams or more, but less than 400 grams, the pe rson shall be sentenced to a mandatory minimum term of imprisonment of 15 years a nd shall pay a fine

of $300,000.00; and (C) I f the qua

ntity of the co caine or

the mixture

involved i s 400 grams or more, the person shall be sentenc ed to a mandatory minimum term of imprisonment of 25 years and sha ll pay a fine of $1 million. (2) An y person w ho sel ls, m anufac tures , deli vers, or bri ngs into this sta

te or who is in posse ssion of a

ny m ixture with a

purity of less tha

n 10 perc ent of co caine, a s descri bed in Sch edule I

I, in violation o f this art

icle comm

its the fe lony

offense of traff icking i n cocaine if the total weight of the mixture multiplied by the percentage of coc aine contained in the mixture exceeds any of the quantities of cocaine specified in parag raph (1) of this subsection. Upon conviction thereof, such person shall be punished as provided in paragraph (1) of this subsection depe nding upon the quant ity of coc aine s uch pe rson i s charge d wit h sell ing, manufacturing, delivering, or br inging into this state or possessing.

5 deleted “knowingly ,” inte r alia , throughout

subsect ion (a). 2 This legis lat ive change does not exp lain what the term”kno wingly” was intended to mean when the statute was orig inally passed. See, e.g., Dees v. Logan , 282 Ga . 815, 817 (653 SE2d 735) ( 2007). What is more, such c hange is consistent with3 OCGA § 16- 13-54.1 provides: When an offense in this part measures a controlled substance or marijuana by weight or quantity , the defendant's knowledge of such weight or quantity shall not be an essentia l element of the of fense, a nd the sta te shall not have the

burden o f proving

that a defendant knew the weight or quantity of the controlled substance or marijuana in order to be convicted of an offense.

4 Clevelan d v. State , 218 Ga. A pp. 661, 66 2-663 (1)

(463 SE2d 3 6) (1995) , and its progeny , which include Beville v. State , 322 Ga. A

pp. 673 (1 ) (745 SE2 d 858) (20 13); McGee v. 6 legisla tive confirmation th at

proof of a d efenda

nt’s knowle dge of eac h elem ent of the tra fficking

statute , inclu ding weight of the d rug, was requi red in former versions o f the statute, bu t that the General Ass embly no longer intends th at it be so. This is reinf

orced by the General Assembly’ s enac tment of OCGA

§ 16- 13-54.1, 3 effec tive July

1, 201 3, whic h express ly provide s that a defenda nt's knowledge

of the weight or quantity of the c ontrolled substance is not to be an
esse ntial elem ent

of the off

ense so that it must be

proven in o rder to obt ain a convict ion. Indeed, the enacting le gislati on, Ga. Laws 2 013, p. 22, § 6 states that the Act is to apply only to offense s which o ccur on o r afte r July 1, 2013, the effec tive date, and that any off ense occ urr ing prior to such dat e is to be governed b y the statute in effect at th e time of such offen se. 3. Simply, former OCGA § 16-1 3-31 (a) (1 ), applicable to this ca se, required proof th at the defendant h ad knowledg e of the weight o f the cocaine. 4State , 316 Ga. App. 661, 664 (1) (730 SE2d 131) (2012); and Barr v. Sta te , 302 Ga. App. 60, 61-

62 (1) (690 SE2d 643) (2010), are hereby overruled to the extent that they hold that knowledg e of the quant ity or weig

ht of the c ocaine i s not an es sential e lement of the offe nse of tr affick ing in cocaine as set forth in former OCGA § 16-13-31 ( a) (1).

5 The Court

of Appea ls is to dete

rmine whe

ther the evidenc e at tria

l was suff icient to prove beyond a

reasonable doubt that Scott knew that the cocaine he possessed weighed 28 grams or more.
7 Accordin gl y, the judgment of the Court of Appea ls is reversed and the ca se is
rema nded to tha

t Court fo r consideration c onsistent with this opinion. 5 Judgment revers ed and case remanded. All the Ju stices concur, excep t Nahm ias and

Blac kwell, JJ., w

ho concur in judgm ent only

as to Division 2
.

Decid ed March 28, 2014 – R econsid erati on denie d April 10, 2014. Certio rari to t

he Court of Appeals of Ge orgia – 320 Ga. A pp. XXV I. Robert L . Persse , for appellant. S. Hayward Altman, District Attorney, Rizz a C. Palm ares, Kelly A. Jenkins, Assistant Dis trict Attorn eys , for appellee.