                            FIRST DIVISION
                             PHIPPS, C. J.,
                    ELLINGTON, P. J., and MCMILLIAN, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                   February 18, 2015




In the Court of Appeals of Georgia
 A14A1621. CHILDS v. THE STATE.

      MCMILLIAN, Judge.

      Herbert Lee Childs, Jr. was tried before a jury and convicted of trafficking in

cocaine in violation of OCGA § 16-13-31 (a) (1) and several motor vehicle-related

offenses. On appeal, Childs contends that the evidence was insufficient to support the

trafficking conviction because the State failed to prove that he had knowledge of the

weight of the cocaine. We agree and reverse Child’s conviction as to trafficking in

cocaine.

      Viewed in the light most favorable to the jury’s verdict,1 the record shows that

on January 5, 2012, Corporal Robert Duncan of the Monroe County Sheriff’s Office

was monitoring southbound traffic on I-75 in Monroe County, Georgia. At

      1
          Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
approximately 3:00 p.m., Duncan observed a vehicle with extremely dark tinted

windows and a tinted tag cover. He stopped the vehicle, which was driven by Childs.

Duncan approached the passenger side of the vehicle and smelled the odor of raw

marijuana coming from within the vehicle as soon as the passenger, Tamika

Freeman,2 rolled down the window. Childs told Duncan that he was driving his

uncle’s vehicle and eventually admitted that there was marijuana in the car but said

there was just enough for a joint. While Duncan waited for backup,3 he learned from

dispatch that Childs’ driver’s license was suspended and placed Childs under arrest.

Duncan asked Freeman to get out of the car and noticed that she was chewing what

he believed to be marijuana. Childs told Duncan that Freeman had the marijuana on

her and told Freeman to “give him the weed.” Duncan then placed Freeman in

custody and began a probable cause search of the vehicle.




      2
          Childs is married to Freeman’s cousin.
      3
         During this time, Duncan also confirmed that the vehicle’s windows were
tinted approximately 12 percent in violation of OCGA § 40-8-73.1 and that the tag
was covered by a tinted cover in violation of OCGA § 40-2-41. Childs does not argue
the sufficiency of the evidence on these convictions. The trial court later vacated the
conviction for driving while license suspended in violation of OCGA § 40-5-121 (a)
because the State failed to present evidence that Childs had received actual or legal
notice of the suspension.

                                          2
      At trial, Duncan testified that, within seconds, he located a brown paper bag

inside the center console of the car between the driver seat and the front passenger

seat. Inside the brown paper bag were two clear plastic bags. One appeared to contain

powdered cocaine and the other held what appeared to be crack cocaine. Duncan

testified that, based on his experience, the bags contained a large amount of cocaine

that was consistent with distribution rather than personal use. GBI forensic chemist

James Wadsworth testified that one bag contained a white chunky substance that

appeared to be crack cocaine and weighed 27.32 grams. The other bag contained

35.13 grams of powdered cocaine that he tested and found to be 45.2 percent pure.

Wadsworth also testified that although he performs 90 to 100 tests on suspected

cocaine each month, he only sees cocaine that falls within the statutory trafficking

weight approximately once per month.

      Freeman, who was tried along with Childs,4 testified that she was just riding

with Childs that day to visit her mother-in-law near Greenbrier Mall and that she did

not know there was any cocaine in the car. She and Childs left Macon around noon,

and when they arrived at the mall, she immediately left to spend time with her


      4
       The jury found Freeman guilty only as to one count of tampering with
evidence. She is not a party to this appeal.

                                         3
mother-in-law at a nearby nail salon and restaurant. She did not know what Childs did

during this time, but only 30 to 40 minutes later, she called Childs, who then returned

to pick her up. Duncan pulled their vehicle over on their way back to Macon when

it was almost time for her to pick her kids up from school. According to Freeman,

Duncan located the bag of cocaine inside a gray hat that belonged to Childs. Freeman

testified that Childs was unemployed at that time but always had money.

      1. Childs asserts that the evidence was insufficient to support his conviction for

trafficking in cocaine because the State failed to prove that he knowingly possessed

a trafficking amount of cocaine. In addressing the sufficiency of the evidence, this

Court does not weigh the evidence or determine witness credibility but only considers

whether “a rational trier of fact could have found the defendant guilty of the charged

offense[] beyond a reasonable doubt.” (Citation and punctuation omitted). Freeman

v. State, 329 Ga. App. 429, 431 (1) (765 SE2d 631) (2014). We will uphold a jury’s

verdict so long as there is “some competent evidence, even though contradicted, to

support each fact necessary to make out the State’s case.” (Citation and punctuation

omitted.) Id.




                                          4
        Former OCGA § 16-13-31 (a) (1),5 in relevant part, provided

        [a]ny 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 . . . .”


And in Scott v. State, the Supreme Court of Georgia recently overruled a long line of

appellate cases on the knowledge required to prove a trafficking offense and held

that:

        The plain language of the version of former OCGA § 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 of the offense, the State has the burden to prove the
        defendant’s guilty knowledge.




        5
        The version of the statute applicable to Childs was effective July 1, 2003 to
June 30, 2012. See Ga. L. 2003, p. 177, § 4; Ga. L. 2012, p. 899, § 3-8. The present
version of the statute became effective July 1, 2013. See Ga. L. 2013, p. 222, § 4. In
the latest amendment, the General Assembly deleted “knowingly” throughout
subsection (a). See Scott v. State, 295 Ga. 39, 41 (2) (757 SE2d 106) (2014).

                                             5
295 Ga. 39, 40 (1) (757 SE2d 106) (2014). Thus, the State had the burden of proving

that Childs knowingly possessed 28 grams or more of cocaine with a purity of at least

10 percent.

      The State, citing Hernandez-Garcia v. State, 322 Ga. App. 455, 461 (745 SE2d

706) (2013), correctly argues that “it has long been the law that knowledge may be

proved by facts and circumstances from which a jury could reasonably infer that a

defendant knowingly possessed contraband.” The State contends that the jury could

infer that Childs knew the weight of the cocaine based on the fact of the short turn-

around trip to Atlanta from Macon, his always having money despite having no

employment, the packaging of the cocaine and the two different types of cocaine, and

the amount of cocaine, which was consistent with distribution and sale. While this

evidence may be sufficient to support a conviction for the lesser included offense6 of

possession of cocaine with intent to distribute in violation of OCGA § 16-13-30 (b),7

      6
       Neither Childs nor the State requested a jury charge on any lesser included
offenses.
      7
          See Nixon v. State, 258 Ga. App. 343, 346 (2) (574 SE2d 404) (2002)
(unemployment status coupled with large amount of drugs can be evidence of intent
to distribute); Navicky v. State, 245 Ga. App. 284, 285-286 (3) (537 SE2d 740) (2000)
(presumption arises that a person in control of an automobile possesses contraband
found therein); Stewart v. State, 232 Ga. App. 565, 566 (1) (502 SE2d 502) (1998)
(4.9 grams of cocaine is sale amount not personal use amount).

                                          6
the State nonetheless failed to present sufficient facts and circumstances from which

a jury could reasonably infer that Childs knowingly possessed 28 grams or more of

cocaine with a purity of 10 percent or more.

      Although the State introduced evidence that Childs possessed two bags of

cocaine, one bag only appeared to contain crack cocaine. Because that substance was

never tested, there is no evidence of its purity. The only confirmed substance was the

powdered cocaine, which weighed 35 grams, only seven grams more than the

statutory threshold.8 Moreover, the State could not point to a scale or any other

evidence that Childs had weighed or measured the cocaine. And the State presented

no evidence of prior similar transactions or other evidence that Childs was

specifically familiar with trafficking weights of cocaine and would know that the

cocaine he possessed on January 5, 2012 weighed at least 28 grams.

      Thus, the facts of this case are unlike those presented in other cases in which

this Court found that the evidence was sufficient to prove that the defendant had

knowledge of the weight of the cocaine. For example, in Freeman, the cocaine at

issue had a purity of 82 percent and weighed 50.62 grams, nearly two times the


      8
       Seven grams equates to approximately .25 ounces. See Sloan v. State, 172 Ga.
App. 620, 620 (323 SE2d 834) (1984) (one ounce is approximately 28.35 grams).

                                          7
trafficking threshold weight of 28 grams.9 329 Ga. App. at 432-433 (1). The jury in

that case also heard evidence of five similar transactions, including Freeman’s three

convictions for possession of cocaine with the intent to distribute, including

possession in the amounts of nearly 26 grams and 19 grams of cocaine. Id. Compare

also Harrison v. State, 309 Ga. App. 454, 458-459 (2) (b) (711 SE2d 35) (2011)

(evidence overwhelmingly showed defendant knowingly possessed a trafficking

amount of cocaine where the cocaine was 32 percent pure and weighed 106 grams –

more than three-and-a-half times the trafficking threshold and defendant testified that

he had previously dealt cocaine and handled 25 grams of cocaine).

      Based on the record before us, we find the evidence was insufficient to prove

an essential element of the crime of trafficking in cocaine, i.e., that Childs knowingly

possessed 28 grams or more of cocaine. Accordingly, we reverse Childs’ conviction

for trafficking in cocaine.




      9
       We emphasize that unlike in Freeman, the second bag of suspected crack
cocaine was never tested for purity and thus cannot be used to show that Childs
possessed such a large amount of cocaine with the purity prohibited by statute that
his knowledge of the amount could be reasonably inferred.

                                           8
      2. Because we have reversed his trafficking in cocaine conviction, Childs’

remaining enumerations of error have been rendered moot. See Hamlett v. State, 323

Ga. App. 221, 234 (3) (753 SE2d 118) (2013).

      Judgment reversed. Phipps, C. J., and Ellington, P. J., concur.




                                        9
