Coates v. State, A17A1098

• Decision Date: 15 June 2017
• Docket Number: A17A1098
• Citation: 802 S.E.2d 65
• Parties: COATES v. THE STATE.
• Court: Georgia Court of Appeals

342 Ga.App. 148

802 S.E.2d 65

COATES

v.THE STATE.

A17A1098

Court of Appeals of Georgia.

June 15, 2017

Reconsideration Denied June 28, 2017

Joshua Andrew Larkey, Fitzgerald, for Appellant.

George E. Barnhill, Waycross, Ian Louis Sansot, for Appellee.

Barnes, Presiding Judge.

A jury found Hubert Coates guilty of one count of possession of less than an ounce of marijuana and four counts of possession of a firearm by a convicted felon. The trial court sentenced Coates separately on each count, with the sentences to run consecutively. Coates filed a motion for new trial and to amend his sentence, which the trial court denied. On appeal, Coates argues that the trial court should have merged his four firearm-convictions. We disagree and affirm.

Following a criminal conviction, we construe the evidence in the light most favorable to the verdict. Anthony v. State , 317 Ga. App. 807, 807, 732 S.E.2d 845 (2012). So viewed, the evidence showed that in May 2014, the police executed a search warrant on two neighboring addresses in Coffee County. Coates operated a make-shift store selling snack items and beverages at one of the addresses, and he lived at the other address next door with his wife. The police recovered less than an ounce of marijuana during the search inside and outside the make-shift store. They recovered four firearms during the search of Coates' residence.

Coates was indicted on one count of possession of marijuana with intent to distribute and four counts of possession of a firearm by a convicted felon. A bifurcated trial ensued. During the first phase, Coates was tried on the marijuana distribution count and was convicted of the lesser included offense of possession of less than an ounce of marijuana. During the second phase, Coates was tried and convicted of the firearm-related counts. The trial court sentenced Coates to consecutive sentences on the five counts and denied Coates motions for new trial and to amend his sentence. This appeal followed.

Coates argues that the trial court should have merged his four convictions for possession of a firearm by a convicted felon under OCGA § 16-11-131 (b). According to Coates, the statute is ambiguous as to whether the possession of each firearm constitutes a separate unit of prosecution, and the statute therefore should be construed under the rule of lenity to mean that the simultaneous possession of multiple firearms constitutes only one offense. We are unpersuaded.

As our Supreme Court has explained,

The question of multiple punishments (as opposed to multiple prosecutions) for the same criminal conduct is addressed under the rubric of substantive double jeopardy.

Whether multiple punishment is permissible requires examination of the legislative intent underlying the criminal statute. It is for the legislature to determine to what extent certain criminal conduct has demonstrated more serious criminal interest and damaged society and to what extent it should be punished. Typically, the question is whether the same conduct may be punished under different criminal statutes. In that situation, it is appropriate to apply the ... "required evidence" test....^{[1 ]} However, a different question is presented here: whether a course of conduct can result in multiple violations of the same statute.... [That] question requires a determination of the "unit of prosecution," or the precise act or conduct that is being criminalized under the statute.

(Punctuation, footnotes, and emphasis omitted.) State v. Marlow e , 277 Ga. 383, 383-384 (1), 589 S.E.2d 69 (2003). See Bell v. United States , 349 U.S. 81, 82-84, 75 S.Ct. 620, 99 L.Ed. 905 (1955) ; Smith v. State , 290 Ga. 768, 772-773 (3), 723 S.E.2d 915 (2012).

To determine the unit of prosecution for a particular offense intended by the legislature, "the starting point must be the statute itself." Marlow e , 277 Ga. at 384 (1), 589 S.E.2d 69. If the unit of prosecution for the offense is clear and unambiguous from the statutory text, "we attribute to the statute its plain meaning, and our search for statutory meaning is at an end." (Citation and punctuation omitted.) Clinton v. State , 340 Ga. App. 587, 589, 798 S.E.2d 101 (2017). In contrast, if the legislature's choice of the unit of prosecution is unclear from the statutory text, the ambiguous statute must be construed strictly against the State so as to impose the lesser punishment. Marlow e , 277 Ga. at 386 (2) (b), n. 24, 589 S.E.2d 69.

Mindful of these principles, we turn to the statutory language criminalizing possession of a firearm by a convicted felon, which provides:

Any person who is on probation as a felony first offender pursuant to Article 3 of Chapter 8 of Title 42 or who has been convicted of a felony by a court of this state or any other state; by a court of the United States including its territories, possessions, and dominions; or by a court of any foreign nation and who receives, possesses, or transports any firearm commits a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years; provided, however, that if the felony as to which the person is on probation or has been previously convicted is a forcible felony, then upon conviction of receiving, possessing, or transporting a firearm, such person shall be imprisoned for a period of five years.

(Emphasis supplied.) OCGA § 16-11-131 (b).² Applying this provision, we have upheld a defendant's convictions for three counts of possession of a firearm by a convicted felon based on evidence that the defendant constructively possessed three firearms in his home. See Layne v. State , 313 Ga. App. 608, 610, 612-613 (2), 722 S.E.2d 351 (2012). See also Gibson v. State , 319 Ga. App. 220, 220-221, 735 S.E.2d 290 (2012) (trial court erred in sentencing defendant on four counts of possession of a firearm by a convicted felon that pertained only to two firearms that he possessed on the same day; defendant should have been sentenced on two counts based on the two firearms).

Coates argues, however, that OCGA § 16-11-131 (b) is ambiguous as to whether it imposes a separate punishment for each individual firearm possessed, or whether it merely imposes one punishment for being armed regardless of the number of firearms, given the use of the phrase "any firearm," and he further argues that our precedent has not directly addressed this issue. The word "any" found in the statute gives rise to ambiguity, Coates maintains, because it can mean one or some, and can encompass both the singular and plural. Consequently, Coates argues, a person in possession of a single firearm is in possession of "any firearm," but a person in possession of more than one firearm also can be in possession of

"any firearm," and the statute does not make clear which of these two possible meanings should apply. Given this alleged ambiguity, Coates contends that OCGA § 16-11-131 (b) should be strictly construed against the State so as to treat the simultaneous possession of more than one firearm as a single violation of the statute.

We do not agree. It is true that the word "any" can mean one or some and can designate singular or plural; hence, the phrase "any firearm," considered in isolation, could refer to a single firearm or multiple firearms. See American Heritage Dictionary of the English Language (5th ed. 2016) (defining "any" as "one or some; no matter which"); Collins English Dictionary—Complete and Unabridged (12th ed. 2014) (defining "any" as "one, some, or several, as specified, no matter how much or many, what kind or quality, etc[.]"). See also United States v. Kinsley , 518 F.2d 665, 668-669 (B) (1) (8th Cir. 1975) (phrase "any firearm" is ambiguous because it can mean a single firearm or more than one firearm). But that does not end the matter in the present case because the phrase "any firearm" found in OCGA § 16-11-131 (b) must be read in the context of the words surrounding it to ascertain its specific meaning and determine whether there is any statutory ambiguity. We are "required to read a particular statute as a whole, considering specific words and phrases not in isolation, but in relation to each other." Gary v. State , 338 Ga. App. 403, 405 (1), 790 S.E.2d 150 (2016). See Warren v. State , 294 Ga. 589, 590-591 (1), 755 S.E.2d 171 (2014) (noting that "the words in [a statute] should be understood in relation to each other, since words, like people, are judged by the company they keep") (citation and punctuation omitted). As we have emphasized, "the meaning of words or phrases in a statute may be ascertained from others with which they are associated and from which they cannot be separated without impairing or destroying the evident sense they were designed to convey in the connection used." (Citations and punctuation omitted.) Burke v. State , 208 Ga. App. 446, 446-447 (1), 430 S.E.2d 816 (1993).

Applying these rules of construction, we conclude that when the phrase ...