Gordon v. State, A15A1052.

CourtUnited States Court of Appeals (Georgia)
Citation780 S.E.2d 376,334 Ga.App. 633
Docket NumberNo. A15A1052.,A15A1052.
Parties GORDON v. The STATE.
Decision Date18 November 2015

334 Ga.App. 633
780 S.E.2d 376


No. A15A1052.

Court of Appeals of Georgia.

Nov. 18, 2015.

780 S.E.2d 377

Michael Robert McCarthy, for Appellant.

John Scott Helton, Dalton, George Jason Souther, Susan Franklin, Herbert Mcintosh Poston Jr., for Appellee.


334 Ga.App. 633

Kyle Lee Gordon appeals from the trial court's decision to sentence him on a conviction for the felony offense of making a false statement1 after rejecting his argument that the rule of lenity applied such that he should be sentenced instead for the misdemeanor offense of making a false report of a crime.2 Because we agree with Gordon that the rule of lenity applies, we reverse.

The record reflects that, after waiving his right to a jury trial, Gordon pleaded guilty to one count of hit and run,3 but entered into a stipulation of facts on a felony charge of making a false statement, arguing that the rule of lenity applied to the charged offense. The trial court found Gordon guilty of the charged offense of making a false statement and, following argument by Gordon and the State, rejected Gordon's argument that he should be sentenced for the misdemeanor of making a false report of a crime.

780 S.E.2d 378

The facts, as stipulated to by the parties at the bench trial, establish that Gordon was driving a truck on the day in question while transporting four passengers, some of whom were riding in the bed of the truck. While driving, Gordon inhaled fumes from an aerosol can and subsequently collided with and caused damage to another motor vehicle. Gordon, however, left the scene of the accident.4

To explain the damage that his vehicle sustained, Gordon subsequently told law enforcement that his vehicle had been struck by

334 Ga.App. 634

another vehicle that was then driven away by the other driver.5 Gordon also provided a signed statement to law enforcement, confirming this information; but he later admitted to the same officers that this statement was untrue. At his arrest, Gordon was charged with leaving the scene of an accident, following too closely, intentionally inhaling fumes from an air duster, and making a false report of a crime. However, he was later indicted for hit and run in violation of OCGA § 40–6–270 and making a false statement in violation of OCGA § 16–10–20.

This appeal by Gordon follows, in which he takes issue with the trial court's determination that the rule of lenity does not apply such that he should be sentenced for the misdemeanor of making a false report of a crime rather than the felony of making a false statement. In so concluding, the trial court relied upon this Court's prior decision in Reese v. State.6 Specifically, the trial court concluded that Reese was "on all fours" with the case sub judice and, although a more recent decision by this Court in McNair v. State7 "casts a shadow" over Reese, that Reese had not been overruled and was still binding authority.8 Because we agree with Gordon that the rule of lenity applies, we reverse the trial court's ruling, and in doing so overrule Reese, which was wrongly decided on this issue.

We begin by recognizing, as our Supreme Court has explained, that the rule of lenity finds its roots in the vagueness doctrine, "which requires fair warning as to what conduct is proscribed."9 The rule of lenity, more specifically, ensures that if and when an ambiguity exists in one or more statutes, such that the law exacts varying degrees of punishment for the same offense, "the ambiguity [will be] resolved in favor of [a] defendant, who will then receive the lesser punishment."10 But if after applying the traditional canons of statutory construction

334 Ga.App. 635

the relevant text remains unambiguous, the rule of lenity will not apply.11 THE fundamental

780 S.E.2d 379

inquiry when making this assessment, then, is whether the identical conduct would support a conviction under either of two crimes with differing penalties,12 i.e., whether the statutes " define the same offense"13 such that an "ambiguity [is] created by different punishments being set forth for the same crime."14

In explaining the appropriate analysis to apply in making this assessment, however, the Supreme Court of Georgia has cautioned that simply because "a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity."15 By way of example, our Supreme Court has emphasized that,

depending upon attendant circumstances, it is possible for the act of striking another person with an object to meet the definitions of each of the crimes of: simple battery, OCGA § 16–5–23, a misdemeanor; aggravated battery, OCGA § 16–5–24, a felony; simple assault, OCGA § 16–5–20, a misdemeanor; aggravated assault, OCGA § 16–5–21, a felony; and malice murder, OCGA § 16–5–1, a felony.16
334 Ga.App. 636

In the foregoing circumstance, a defendant could be prosecuted for multiple crimes.17 But when a defendant is prosecuted for and convicted of multiple crimes based upon a single act, "the injustice that must be avoided is sentencing the defendant for more than one crime following his conviction of multiple crimes based upon the same act."18

When a defendant is convicted of multiple crimes based upon the same act, "the principle of factual merger operates to avoid the injustice."19 In Drinkard v. State,20 our Supreme Court of Georgia adopted the "required evidence" test set forth by the Supreme Court of the United States to resolve these situations.21 Thus, to determine whether convictions for multiple crimes merge for purposes of sentencing, " ‘[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ "22

780 S.E.2d 380

And while the foregoing analysis employed in the context of merger may be helpful in assessing whether two statutes criminalize the same conduct by defining the same offense,23 the "required

334 Ga.App. 637

evidence" test for merger, as established in Drinkard, is not the test that determines whether the rule of lenity applies.24 But in Selfe v. State,25 this court cited to and relied upon DRINKARD to conclUde that the rule of lenity did not apply (a conclusion which was, nevertheless, correct).26 We now disapprove of Selfe to the extent that it can possibly be read to hold that the Drinkard "required evidence" test is the test to be used for rule-of-lenity analysis.

Instead, Quaweay v. State,27 from which Selfe quotes,28 provides a more complete explanation as to how examining a statute's elements and, thus, the evidence required to obtain a conviction under a statute, can inform the analysis of whether two statutes criminalize the same conduct. In Quaweay, we explained that the essential requirement of the rule of lenity is that "both crimes could be proved with the same evidence."29 In support of this proposition, we cited to the

780 S.E.2d 381

Supreme Court of Georgia's decision in Brown v. State,30 which, in relevant part, holds that "[b]ecause the same conduct constituted

334 Ga.App. 638

both a felony and a misdemeanor, the rule of lenity require[d] that [the appellant] be subjected to the penalties for the misdemeanor, rather than the felony."31 And earlier in Brown, our Supreme Court determined that, "[u]sing the same evidence, a reasonable trier of fact could have found beyond a reasonable doubt that [the defendant's] conduct violated" either of two statutes.32 Thus, having determined that the conduct for which the defendant was indicted and convicted "would have supported either a felony or misdemeanor conviction, [the Supreme Court] next examine[d] the consequences of this overlap,"33 and determined that the rule of lenity applied.34

Turning to Reese v. State,35 there, we erroneously relied solely upon Selfe 's use of the Drinkard analysis to conclude that the rule of lenity does not apply to the same statutes at issue in this case. In Reese, the totality of our analysis on this question was as follows:

Reese was convicted of making a false statement under OCGA § 16–10–20, which provides that a person who "knowingly and willfully" makes a false statement ["]in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.["] Neither the false report of a crime statute nor the false report of a theft statute

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    ...v. Virginia, 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.E.2d 560 (1979).36 OCGA § 16–4–8.37 See id.38 Gordon v. State, 334 Ga. App. 633, 634, 780 S.E.2d 376 (2015) (punctuation omitted); see McNair v. State, 293 Ga. 282, 283, 745 S.E.2d 646 (2013) (noting that the rule of lenity provi......
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