Georgia Court of Appeals Reverses Drug Conviction for Failure to Prove Knowledge

Amin and Mohamed were jointly tried for possession of a Schedule I substance, cathinone, in violation of the Georgia Controlled Substances Act. They were arrested when a courier service suspected that two packages arriving in Georgia contained an illegal substance. The Clayton County Narcotics Unit determined the packages contained a plant material called “khat,” a shrub native to Africa and the Arabian Peninsula. Freshly cut “khat” contains the chemical cathinone, a Schedule I hallucinogenic substance. The courier service was able to trace the packages from Kenya to the Netherlands to Georgia. When Amin and Mohamed each arrived to claim the packages, they were arrested and charged with possession of cathinone. Both were convicted after a bench trial.

At trial, both Amin and Mohamed testified that in Somalia, where they were born, khat is legal and widely used at social events. They stated that Somalians wait several days after harvesting for the plant to darken before consumption to avoid the strong effects of the chemicals inside. During this time period, the cathinone in the khat begins to degrade and becomes the milder stimulant “cathine,” another controlled substance.

Amin did tell an investigating officer that chewing on the khat plant “gave you a high feeling.” The Court of Appeals, however, found that Amin did not define “high” in such a way as to indicate he knew the khat he possessed contained cathinone. The Court determined Amin may have been referring to the effects of ingesting the cathine, a drug he was not charged with possessing, when discussing the “high feeling.” When tested by a crime lab chemist at least four days after shipment, the khat revealed detectable amounts of both cathinone and cathine.

The Court of Appeals held that possession of a controlled substance in Georgia is not a strict liability offense where an individual can be convicted without any subjective intent or knowledge requirements. Just last year, in Duvall v. State, 289 Ga. 540, 712 S.E.2d 850 (2011), the Georgia Supreme Court held that for any controlled substance offense, the State must prove that the defendant intended to possess a drug with knowledge of the chemical identity of that drug (conviction reversed where the defendant’s belief that the controlled substance in his possession was over-the-counter medication was insufficient to prove intent to possess Zolpidem). Finding Mohamed’s and Amin’s cases to be substantially similar, the Georgia Court of Appeals held that while the State proved that they intended to possess khat, it did not prove they intended to possess the specific illicit substance cathinone. Therefore, both defendants’ convictions were reversed.