Johnson v. State

• Decision Date: 15 June 2022
• Docket Number: A20A0996
• Citation: 874 S.E.2d 807
• Parties: JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

874 S.E.2d 807

JOHNSON

v.The STATE.

A20A0996

Court of Appeals of Georgia.

June 15, 2022

Ricky Johnson, for Appellant.

Penny Alane Penn, James Aaron Dunn, for Appellee.

Phipps, Senior Appellate Judge.

A jury found Ricky Johnson guilty of one count of burglary and four counts of theft by taking, and the trial court imposed a total sentence of forty years in prison. The trial court denied Johnson's motion for a new trial, and, on appeal, we affirmed his convictions and sentences. See Johnson v. State , 357 Ga. App. XXV (Case No. A20A0996) (Nov. 2, 2020) (unpublished) ("Johnson I "). In that decision, as relevant here, we rejected Johnson's claim that some of his theft-by-taking convictions should merge into each other. See id., slip op. at 14-15 (8) (b). On certiorari review, the Supreme Court of Georgia vacated our holding in that regard on the ground that we applied the wrong legal analysis in evaluating Johnson's merger claim. See Johnson v. State , 313 Ga. 155, 160-161 (4), 868 S.E.2d 226 (2022) (" Johnson II "). The case is now again before us following the Supreme Court's remand with instructions to apply the proper analysis. See id. at 161 (4), 868 S.E.2d 226. For the reasons that follow, we vacate three of Johnson's four theft-by-taking convictions and sentences and remand this case for the trial court to resentence Johnson after merging those convictions into his remaining theft-by-taking conviction.

The Supreme Court set forth the following relevant facts in its decision:

In 2013, Johnson was convicted of one count of burglary (Count 1), three counts of theft by taking based on the theft of three different Ford trucks (Counts 2, 3, and 4), and one count of theft by taking based on the taking of multiple pieces of property, including, among other things, a riding lawnmower, a plasma cutter, and a welder (Count 5). The crimes occurred on November 1, 2007, in a large building containing a shop and office space on the property of Reid & Reid Contractors (the "company"). Of the three stolen trucks, two were Ford flatbeds and one was a Ford service truck. One flatbed truck was parked outside the company's building; the other was parked inside a garage in front of the building; and the service truck was parked inside the shop. The thefts occurred overnight during a span of time that lasted between five and six hours.

The company had five surveillance cameras recording activity in its building. A video from one of those cameras, which recorded activity in the southwest corner of the shop, was introduced into evidence at trial. That video first showed Johnson in the shop area at 10:54 p.m. on October 31, 2007. It also showed that Johnson appeared to leave the shop and the property after completing the crimes at about 4:30 a.m.

Between those two times, Johnson could be seen in the camera frame of the surveillance video that covered the southwest corner of the shop except for a number of short periods of time, none of which lasted more than 15 minutes. The video shows ... Johnson ... examining company property and loading it onto a service truck by hand and by using the company's forklift.... At 3:28 a.m., he drove the service truck out of the shop bay and out of the camera frame. Johnson reappeared in the camera frame at 3:34 a.m., driving a different piece of equipment — a John Deere Gator — into the shop. Johnson parked the Gator inside the shop and then walked out of the shop bay door. He is next seen on the video driving one of the company's flatbed trucks into the shop about 15 minutes later, at 3:49 a.m. At that point, he parked the flatbed truck inside the shop and began loading it with company property .... Around 4:30 a.m., he drove the flatbed truck out of the shop bay. After that, Johnson walked back into the shop and drove the Gator out of the shop at 4:34 a.m. He then walked back into the shop again and drove the forklift out of the shop at 4:36 a.m. Johnson is not seen on the video after 4:36 a.m.

Ultimately, both the service truck and flatbed truck that Johnson drove out of the shop bay were stolen, as was an additional flatbed truck that does not appear in the surveillance video. In addition, a riding lawnmower, a plasma cutter, a toolbox, and a welder (among other property) were stolen that night. Neither the Gator nor the forklift were stolen.

As it turns out, the three stolen trucks were equipped with GPS trackers, and the trucks — along with the stolen equipment — were located later on the morning of November 1 in a wooded area behind a residence about 10 miles from the shop. At trial, the State presented (among other evidence) the surveillance video described above, as well as evidence that Johnson's palm print was found on the forklift that was still parked outside the company's shop.... Johnson was found guilty on all counts and sentenced to a total of 40 years in prison: 20 years on the burglary count; 10 consecutive years each on Counts 2 and 3; and 10 concurrent years on Counts 4 and 5.

Johnson II , 313 Ga. at 155-157 (1), 868 S.E.2d 226 (footnotes omitted).

On appeal, we rejected Johnson's contention that two of his three theft-by-taking convictions for the theft of the trucks should have merged, such that he could be convicted of only one count of theft by taking for the theft of the trucks.¹ See Johnson I , Case No. A20A0996 (8) (b). In reaching that conclusion, we evaluated Johnson's merger claim using the "actual evidence" test enunciated in Braswell v. State , 245 Ga. App. 602, 604 (4), 538 S.E.2d 492 (2000), overruled in part as recognized in Johnson II , 313 Ga. at 158 (3) & n. 6, 868 S.E.2d 226. See Johnson I , Case No. A20A0996 (8) (b). Under that test, "[t]he key question in determining whether a merger has occurred [was] whether the different offenses are proven with the same facts." Braswell , 245 Ga. App. at 604 (4), 538 S.E.2d 492.

On certiorari review, the Supreme Court held that we erred by relying on Braswell ’s "actual evidence" test, which governed "merger for multiple counts of different crimes instead of multiple counts of the same crime — the latter being the type of merger claim Johnson presented ... with respect to his convictions for theft by taking."² Johnson II , 313 Ga. at 158 (3), 868 S.E.2d 226 (emphasis omitted). The Court further explained that, to address a merger claim premised on multiple convictions for the same crime, a court must "ask whether those crimes arose from a single course of conduct and, if so, whether the defendant can face multiple convictions and sentences under a unit-of-prosecution analysis." Id. at 159 (4) , 868 S.E.2d 226 (citation and punctuation omitted). The Court observed that the course-of-conduct evaluation involves examining the defendant's intent and the time and location of the crimes at issue. See id. And the Court emphasized that the proper unit-of-prosecution test entails evaluating the statutory text to determine "whether a particular course of conduct involves one or more distinct ‘offenses’ under the statute." Id. (citation and punctuation omitted). We now turn to the relevant analysis, as directed by the Supreme Court.

1. "The question of multiple punishments (as opposed to multiple prosecutions) for the same criminal conduct is addressed under the rubric of substantive double jeopardy." Smith v. State , 290 Ga. 768, 772 (3), 723 S.E.2d 915 (2012) (citation and punctuation omitted). Under that rubric, we first must determine "whether [the] crimes arose from a single course of conduct." Johnson II , 313 Ga. at 159 (4), 868 S.E.2d 226 (citation and punctuation omitted). Factors relevant to that analysis include: (i) whether Johnson "acted with the same or differing intents"; (ii) "whether the crimes occurred at the same place"; and (iii) "whether the crimes occurred at the same time or were separated by some meaningful interval of time." Id. ; see also Lucas v. State , 328 Ga. App. 741, 743 (1), 760 S.E.2d 257 (2014).

The facts described above indicate that Johnson acted with the same intent — to steal the company's property — from the moment he first entered the company's building shortly before 11:00 p.m. on the night in question until he left the property at approximately 4:30 a.m. the following morning. Moreover, the crimes all occurred in the same targeted area: the building containing the company's shop and office space, a garage in front of the building, and a parking area outside of the building. Finally, while several minutes passed between the times Johnson could be seen exiting the building with equipment and returning to retrieve more items, those brief passages of time — on the facts of this case — are more appropriately viewed as resulting from limits on how much property Johnson could move in each trip (and therefore ancillary to a single plan to steal multiple items), and not as breaks during which Johnson ceased all criminal activity and then formed a new intent to steal other items. See Ingram v. State , 279 Ga. 132, 133-134 (2), 610 S.E.2d 21 (2005) (concluding that an "unintended interval" between two episodes of choking the victim "did not signal the completion of a separate criminal act but signified only the temporary failure to accomplish the one intentional criminal transaction"). Consequently, the intervals between Johnson's appearances on the surveillance recording are not "meaningful" for purposes of the relevant analysis. Our review of the pertinent factors therefore indicates that all of the thefts at issue here "arose from a single course of conduct." Johnson II , 313 Ga. at 159 (4), 868 S.E.2d 226 (citation and punctuation omitted); see Lucas , 328 Ga. App. at 743-744 (1), 760 S.E.2d 257 (concluding that the acts underlying two burglary convictions constituted a single course of conduct where they occurred in the same building and "were not separated by a meaningful interval of time or with distinct intentions," insofar as an "interval of minutes between the acts" did not indicate a completed,...