Tate-Jesurum v. State

• Docket Number: A23A0559
• Decision Date: 22 June 2023
• Citation: 368 Ga.App. 710,890 S.E.2d 78
• Parties: TATE-JESURUM v. The STATE.
• Court: Georgia Court of Appeals

368 Ga.App. 710

890 S.E.2d 78

TATE-JESURUM v. The STATE.

A23A0559

Court of Appeals of Georgia.

June 22, 2023

Reconsideration Denied July 12, 2023

Hunter Joseph Rodgers, for Appellant.

Anthony Brett Williams, Matthew Wayne Rollins, for Appellee.

RICKMAN, Chief Judge.

In this interlocutory appeal, Leonard Antonio Tate-Jesurum appeals from the trial court's denial of his general demurrer and plea in bar. He argues that the trial court erred by denying the general demurrer when the accusation against him failed to allege the necessary mens rea, and by denying his plea in bar when the allegedly void accusation did not toll the statute of limitations. For the following reasons, we affirm.

On July 2, 2020, Tate-Jesurum was charged via accusation with a single count of possession of methamphetamine, which alleged that he "on or about the 27th day of February, 2018, did unlawfully possess Methamphetamine, a Schedule II non-narcotic controlled substance, in violation of [OCGA] § 16-13-30 (a) ...."

On July 14, 2022, Tate-Jesurum filed a general demurrer and plea in bar to this charge. In doing so, he asserted that the accusation for possession of methamphetamine failed to allege all of the required elements of that offense—namely, the necessary mens rea that he knowingly possessed the chemical identified as methamphetamine. And because he alleges that failure rendered the accusation against him void, he contends that the four-year statute of limitations for possession of methamphetamine ¹ —having already expired—barred his prosecution for the offense because a void accusation does not toll the limitations period.

Following a hearing on the matter, the trial court denied both the general demurrer and plea in bar, relying on this Court's decision in Dye v. State , 177 Ga. App. 813, 341 S.E.2d 469 (1986), overruled on other grounds by Eason v. State , 260 Ga. 445, 396 S.E.2d 492 (1990). In Dye , the charging instrument—like the accusation against Tate-Jesurum—alleged the defendant "unlawfully" possessed cocaine, and we held that "unlawfully" encompassed both intent and knowledge. See id. at 813 (1), 341 S.E.2d 469 ("The allegation that appellant acted ‘unlawfully’ is sufficient to encompass both the intent to commit the proscribed act and the knowledge necessary to form that intent."). In reliance on Dye , the trial court concluded that the accusation against Tate-Jesurum included all necessary elements and was not subject to a general demurrer. Nevertheless, the trial court issued a certificate of immediate review, and we granted Tate-Jesurum's application for interlocutory appeal, which we will now consider. ²

Tate-Jesurum argues the trial court erred by denying his general demurrer when the accusation did not expressly allege that he knowingly possessed the chemical identified as methamphetamine. We disagree.

Georgia statutory law provides that a criminal indictment or accusation "which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct." OCGA § 17-7-54 (a). Likewise, deeply embedded within our case law is the concept that a charging instrument that tracks the statutory language of a criminal offense is sufficient to survive a general demurrer. See State v. Mondor , 306 Ga. 338, 341 (1), 830 S.E.2d 206 (2019) ("[A]n indictment couched in the language of the statute alleged to have been violated is not subject to a general demurrer.") (citation and punctuation omitted); McKibbins v. State , 293 Ga. 843, 848 (2), 750 S.E.2d 314 (2013) ("[A]n indictment which charges a defendant with the commission of a crime in the language of a valid statute generally is sufficient to withstand a demurrer charging that the indictment is insufficient to charge the defendant with any offense.") (citation and punctuation omitted); Stewart v. State , 246 Ga. 70, 72 (2), 268 S.E.2d 906 (1980) ("An indictment which charges a defendant with the commission of a crime in the language of a valid statute is sufficient to withstand a demurrer charging that the indictment is insufficient to charge the defendant with any offense under the laws of this state."); Hester v. State , 17 Ga. 130, 132 (1) (1855) ("Every indictment or accusation of the Grand Jury, shall be deemed sufficiently technical and correct, which states the offence in the terms and language of the Code ....") (citation and punctuation omitted).

Here, Tate-Jesurum was accused of a violation of the Georgia Controlled Substances Act, specifically, possession of methamphetamine. The relevant criminal statute provides that, "it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance." OCGA § 16-13-30 (a). Methamphetamine is defined as a Schedule II non-narcotic controlled substance. See OCGA § 16-13-26 (3) (B). The charging document accused Tate-Jesurum with the offense of possession of methamphetamine in that he "did unlawfully possess Methamphetamine, a Schedule II non-narcotic controlled substance, in violation of OCGA § 16-13-30 (a), contrary to the laws of said State...." As such, the accusation set forth the offense in the terms and language of the relevant criminal statute and was sufficient to survive a general demurrer. See OCGA § 17-7-54 (a) ; Budhani v. State , 306 Ga. 315, 319-320 (1) (b), 830 S.E.2d 195 (2019) (holding indictment for possession of a controlled substance was not void because it "tracked the language of the relevant statute" and identified the controlled substance); see also Smith, 303 Ga. at 647 (A), 814 S.E.2d 411 ; Wyatt , 295 Ga. at 260 (2), 759 S.E.2d 500.

Nevertheless, Tate-Jesurum argues, and the dissent agrees, that in Duvall v. State , 289 Ga. 540, 712 S.E.2d 850 (2011), the Supreme Court abrogated, within the context of an indictment alleging possession of a controlled substance in violation of OCGA § 16-13-30 (a), both the legislative directive of OCGA § 17-7-54 (a) and the well-established pleading rules upon which courts and prosecutors of this State alike have relied upon for decades. But Duvall cannot be so construed.

To be sure, the Duvall Court held that possession of a controlled substance is not a strict liability offense and, therefore, the State must prove that an accused both knowingly possessed a drug and also knew that the drug he or she possessed was a controlled substance. 289 Ga. at 542, 712 S.E.2d 850. But the question before the Court in Duvall was not the sufficiency of the indictment; rather, the question was whether the appellant should have received at trial a jury instruction on mistake of fact because of his defense that he knew he possessed a drug, but believed that what he possessed was an over-the-counter sleeping medication. Id. at 541-542, 712 S.E.2d 850. The Court recognized that the question of whether appellant knowingly possessed a controlled substance was a question of fact and, consequently, concluded the trial court committed reversible error by failing to give the jury instruction. Id. at 542, 712 S.E.2d 850.

Nothing in Duvall suggests that the Court intended to create a judicial exception to both statutory and common law regarding the required elements of a charging instrument. Indeed, "criminal intent is an essential element of every crime where criminal negligence is not involved." (Citation and punctuation omitted.) Wright v. State , 365 Ga. App. 288, 290 (1), 878 S.E.2d 137 (2022) ; see OCGA § 16-2-1 (a) (defining a "crime" as "a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence."). And as stated by the Supreme Court and consistently held by this Court, in the absence of an express, statutorily-defined mens rea element, the allegation of criminal intent is "necessarily inferred" from an indictment that "charges [an] offense in the language of the statute and alleges it was committed ‘unlawfully.’ " Humphrey v. State , 231 Ga. 855, 861 (IV), 204 S.E.2d 603 (1974) ; see also Tidwell v. State , 216 Ga. App. 8, 10 (1), 453 S.E.2d 64 (1994) ("The allegation that the men acted ‘unlawfully,’ with reference to the specific Code section which made the conduct unlawful, sufficiently included the intent to commit the criminal act and the knowledge necessary to form such intent."); Dye , 177 Ga. App. at 813 (1), 341 S.E.2d 469 ("The allegation that appellant acted ‘unlawfully’ is sufficient to encompass both the intent to commit the proscribed act and the knowledge necessary to form that intent."). Compare Henderson v. Hames , 287 Ga. 534, 537-538 (3), 697 S.E.2d 798 (2010) (an indictment omitting an express, statutorily-defined mens rea element is fatally defective).

The accusation in this case charged Tate-Jesurum with "unlawfully" possessing a named controlled substance in violation of OCGA § 16-13-30 (a) by tracking the language of that statute. As such, it was legally sufficient, and the trial court did not err by denying both the general demurrer and the plea in bar. See OCGA § 17-7-54 (a) ; Budhani , 306 Ga. at 319-320 (1) (b), 830 S.E.2d 195.

Judgment affirmed.

Pipkin J., concurs; Dillard, P.J., dissents.

Dillard, Presiding Judge, dissenting.

In affirming the denial of Tate-Jesurum's general demurrer and plea in bar, the majority draws a strict demarcation line between the pleading requirements of a charging document and the elements of proof necessary to establish the commission of a crime at trial. But this line is illusory. The relevant, binding case law dictates that—because the charging document against him is void due to the omission of the necessary element of mens rea —Tate-Jesurum's general demurrer on this ground should have been granted, as well as his plea in bar. So, I respectfully dissent.

Tate-Jesurum argues the trial court erred by denying his general demurrer and plea in bar ³ when the...