This case comes before the Court following a grant of certiorari to the Court of Appeals in Duvall v. State , 305 Ga. App. 545 699 SE2d 761 2010. The question posed on certiorari is whether the Court of Appeals erred “in affirming the defendant’s convictions for possession of a controlled substance and possession of a controlled substance not in its original container, and in particular, in construing OCGA § § 16-13-30 a and 16-13-75 not to require the defendant to know that the pills he possessed were a controlled substance.” Because we find that the Court of Appeals did err, we reverse the judgment of conviction and remand for a new trial. The facts of the case are simple. Appellant James Duvall was arrested in November 2007 when he mistakenly went to a neighbor’s house and began banging on the door for her to let him in. Duvall was intoxicated and loud, so the neighbor called the police, who came to the house. At first, Duvall was non-responsive to police instructions to show them his hands, so police subdued Duvall with a taser and arrested him for misdemeanor loitering/prowling and misdemeanor obstruction of an officer. During a search incident to arrest, police found in Duvall’s pockets three loose tablets of a substance which proved to be Zolpidem Tartrate, a prescription sleeping aid also known by the brand name Ambien. Duvall was then also charged with felony possession of a controlled substance and felony possession of drugs not in their original container.
A Newton County jury convicted Duvall on all charges and Duvall chose to appeal only the two felony counts. On appeal, the Court of Appeals considered, among other claims,1 whether Duvall should have received at trial a jury instruction on mistake of fact. The Court of Appeals held that the mens rea required for conviction under OCGA § §16-13-30 a and 16-13-75 was simply knowledge that one possessed some drug. The Court of Appeals further held that knowledge of whether that drug is listed as a controlled substance is purely a question of law, and that a defendant’s ignorance as to whether a particular drug he possesses is categorized as a controlled substance is not a defense to these charges.
