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 SE2d 469) (1986), overruled on other grounds by Eason v. State, 260 Ga. 445 (396 SE2d 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) (“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 SE2d 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 SE2d 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 SE2d 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 nonnarcotic controlled substance, in violation of OCGA § 161330 (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 SE2d 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); Wyatt, 295 Ga. at 260 (2). Nevertheless, Tate-Jesurum argues, and the dissent agrees, that in Duvall v. State, 289 Ga. 540 (712 SE2d 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. 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. 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. 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 SE2d 137) (2022); see OCGA § 1621 (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 SE2d 603) (1974); see also Tidwell v. State, 216 Ga. App. 8, 10 (1) (453 SE2d 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) (“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 SE2d 798) (2010) (an indictment omitting an express, statutorily-defined mens rea element is fatally defective). The accusation in this case charged TateJesurum with “unlawfully” possessing a named controlled substance in violation of OCGA § 161330 (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). Judgment affirmed. Pipkin J., concurs; Dillard, P.J., dissents. In the Court of Appeals of Georgia Dillard, Presiding Judge, dissenting. In affirming the denial of TateJesurum’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—TateJesurum’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 accusation did not include the necessary element that he knowingly possessed the chemical identified as methamphetamine. In doing so, he contends that Dye v. State[4]—which the trial court and the majority both heavily rely upon in making their decisions—has been abrogated by subsequent opinions from the Supreme Court of Georgia. I agree. We review a trial court’s ruling on a general demurrer de novo.[5] And every indictment of the grand jury which states the offense in the terms and language of the Georgia 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.”[6] But importantly, an indictment is to be “strictly construed against the State when a general demurrer has been filed against it.”[7] As a result, to withstand a general demurrer, an indictment must “(1) recite the language of the statute that sets out all the elements of the offense charged, or (2) allege the facts necessary to establish violation of a criminal statute.”[8] If either of these requisites is met, then the accused “cannot admit the allegations of the indictment and yet be not guilty of the crime charged.”[9] With the foregoing in mind, I return to Dye v. State[10]—which the trial court, State, and majority all rely upon in concluding the accusation here was not subject to a general demurrer. In Dye, we relied generally on McDonald v. State,[11] in which the Supreme Court of Georgia explained that an indictment “couched in the language of the statute” was “not subject to general demurrer.”[12] Specifically, the McDonald Court noted the indictment’s use of “unlawfully” was the “substantial equivalent” of charging that the defendant “wilfully” failed to mail and deliver a certificate of title and manufacturer’s serial plate from a motor vehicle to the State Revenue Commissioner as required by law.[13] Interestingly, since being published in 1986, Dye has only been relied upon for the relevant proposition twice. In Tidwell v. State,[14] we concluded that use of “unlawfully” in a charge of leaving the scene of an accident with death and serious bodily injury[15] “sufficiently included the intent to commit the criminal act and the knowledge necessary to form such intent.”[16] Dye was also relied upon in Frost v. State,[17] in which—for a charge of arson—we held that use of the word “unlawfully” in the indictment—instead of “knowingly”—did not fail to charge the defendant with “a crime by the omission of the element of intent, nor did it fail to put defendant on notice that she was charged with committing the act with intent rather than with criminal negligence.”[18] And both Tidwell and Frost have been relied upon by this Court for Dye‘s relevant proposition in a number of cases throughout the years.[19] But the jurisprudential landscape has changed dramatically since Dye and most of its progeny were decided.[20] Indeed, as the Supreme Court of Georgia has explained, the omission of mens rea from an indictment renders the charging instrument void[21] because it is “an essential element of a crime.”[22] And in doing so, our Supreme Court noted that if an indictment “fails to allege all the essential elements of the crime or crimes charged, including the required mens rea, it violates due process, is void, and cannot withstand a general demurrer].”[23] Additionally, with regard to possession of controlled substances in violation of OCGA § 16-13-30 (a), the Supreme Court of Georgia has held that it is not a strict liability offense.[24] And while this statute does not expressly include mens rea like the federal controlled substances statute does, “the state offense nevertheless includes the same mens rea.”[25] As a result, for violations of OCGA § 16-13-30 (a), the “actus reus in these statutes is possession of the drug, which one knows oneself to possess, when that drug is a controlled substance,”[26] whereas the mens rea is “intent to possess a drug with knowledge of the chemical identity of that drug.”[27] Finally, our Supreme Court has also explained that the adjective “unlawful” means “not authorized by law; illegal.”[28] In light of the foregoing, I agree with Tate-Jesurum that Dye and its progeny have been abrogated by subsequent opinions of the Supreme Court of Georgia such that the use of “unlawfully” does not sufficiently act as a substitute for the essential element of “knowledge” or “knowingly”[29] in charging documents. As a result, Tate-Jesurum could admit to every allegation within the charging document—that he did “unlawfully possess Methamphetamine”—and he would not be guilty of a crime because the charging document does not include the necessary and required element of mens rea—that he possessed methamphetamine with the knowledge that the chemical he possessed was indeed methamphetamine. Even so, the State suggests our Supreme Court’s decision in Budhani v. State[30] forecloses my conclusion. But while Budhani dealt with a general demurrer directed at an indictment alleging violations of OCGA § 16-13-30 (b) for the sale of and possession with intent to distribute a controlled substance, the appellant in that case challenged the indictment as omitting what he deemed to be the essential elements of “the inapplicability of certain exemptions.”[31] So, although the Supreme Court of Georgia concluded the indictment in Budhani was sufficient, and even though the indictment used “unlawfully,” it was not asked whether the use of that word sufficiently alleged the necessary mens rea.[32] And because the specific question at issue here was not addressed in Budhani (which, again, dealt with a different offense in OCGA § 16-13-30 and does not cite to or discuss Duvall), that case cannot be fairly understood as foreclosing my conclusion in this case.[33] The State also maintains that because the General Assembly removed “knowingly” from the trafficking statute (OCGA § 16-13-31) in 2013, “knowingly” need not be included in a charging document regarding an offense under OCGA § 16-13-30. Suffice it to say, the General Assembly’s amendment of a different controlled substances statute does not alter our duty to follow and faithfully interpret precedents of the Supreme Court of Georgia.[34] And importantly, since our Supreme Court’s 2011 decision in Duvall, the General Assembly has not amended OCGA § 16-13-30 in a manner suggesting that it disagrees with the Duvall Court’s conclusion regarding the required mens rea for violations of that statute.[35] Needless to say, once the Supreme Court of Georgia interprets a statute, its interpretation becomes “an integral part of the statute.”[36] The majority suggests my analysis hinges on Duvall and its progeny, but this conclusion is reached by construing the Duvall line of jurisprudence along with the Supreme Court of Georgia’s binding opinions in Henderson, Mondor, Calloway, and Wetzel, as detailed supra. And while it is certainly true that none of these cited authorities explicitly stand for this conclusion, I believe it is the only logical way to reconcile the holdings in those decisions. Independently, those authorities hold that (1) possession of a controlled substance is not a strict liability offense;[37] (2) our state offense has the same required element of mens rea as the federal offense despite that element’s absence from the text of the state statute;[38] (3) the omission of a required element—including mens rea—renders an indictment void;[39] and (4) “unlawful” means “not authorized by law; illegal.”[40] Taking these authorities together, as we are required to do, I conclude “unlawfully” cannot act as a substitute for “knowingly” in the accusation before us. Accordingly, I agree with Tate-Jesurum that the charging document against him is void because it omitted the necessary element of mens rea, and the trial court erred in denying his general demurrer on this ground. I likewise agree the trial court erred in denying his plea in bar on the ground that the four-year statute of limitations barred further prosecution.[41] Needless to say, a void charging document does not toll the statute of limitations.[42] And as explained supra, I believe the accusation against Tate-Jesurum in this case is void.[43] As a result, because the incident was allegedly committed on February 27, 2018, in the face of a void accusation that did not toll the statute of limitations, it expired on February 27, 2022. The trial court, then, should have granted Tate-Jesurum’s plea in bar in addition to the general demurrer. For all these reasons, I respectfully dissent from the majority’s opinion.
