Johnson v. State

• Decision Date: 19 January 2022
• Docket Number: S21G0673
• Parties: JOHNSON v. The STATE.
• Court: Georgia Supreme Court

313 Ga. 155

868 S.E.2d 226

JOHNSON

v.The STATE.

S21G0673

Supreme Court of Georgia.

Decided: January 19, 2022

Ricky J. Johnson, GDC #1124129, Coffee Correctional Facility, P. O. Box 650, Nicholls, Georgia 31554, for Appellant.

Thomas Vernon Burch, Courtney Hogan, Kirstiana Perryman, UGA School of Law, 313A Rusk Hall, 225 Herty Drive, Athens, Georgia 30602, for Amicus Appellant.

Penny Alane Penn, District Attorney, James Aaron Dunn, A.D.A., Forsyth County District Attorney's Office, 101 East Courthouse Square, Suite 2075, Cumming, Georgia 30040, for Appellee.

Warren, Justice.

We granted certiorari in this case to address whether Johnson's convictions for theft by taking merge under the correct unit-of-prosecution analysis. Because the Court of Appeals applied the wrong legal analysis in evaluating whether Johnson's theft-by-taking convictions should have merged, we vacate its holding on that issue and remand with direction to apply the correct analysis.

1. 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.¹

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 that Johnson spent the first few hours in the shop walking back and forth with a flashlight, examining company property and loading it onto a service truck by hand and by using the company's forklift. At 2:26 a.m., he used the forklift to load a welder onto the service truck. 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.² At that point, he parked the flatbed truck inside the shop and began loading it with company property, including a large lawnmower. He also attempted, unsuccessfully, to load the Gator onto the flatbed truck. 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. Part of the State's theory of the case was that Johnson must have had an accomplice; to that end, the prosecutor argued that, considering the amount of time Johnson was in the shop, along with the 10-mile distance between the shop and the property where the stolen trucks were transported and parked, it was "obvious[ ] somebody helped [Johnson]." The prosecutor also argued that because Johnson was a party to the crimes of theft by taking of the trucks, the State did not "have to prove that [Johnson himself] drove a truck" away from the company property for the jury to find Johnson guilty of theft by taking of all three trucks. 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.

2. Johnson appealed pro se. The Court of Appeals affirmed in an unpublished opinion, rejecting, among other things, Johnson's contention that two of his three theft-by-taking convictions for the theft of the trucks should have merged.³ See Johnson v. State , Case No. A20A0996 (Nov. 2, 2020). In reaching that conclusion, the Court of Appeals evaluated Johnson's merger claim using the "actual evidence" test from Braswell v. State , 245 Ga. App. 602, 604, 538 S.E.2d 492 (2000). See Johnson , slip op. at 15. Under that test, " ‘[t]he key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts.’ " Id. at 15 (quoting Braswell , 245 Ga. App. at 604, 538 S.E.2d 492 ). According to the Court of Appeals, "the evidence showed that one person—Johnson—stole multiple trucks. Thus, Johnson necessarily had to complete the theft of each truck prior to stealing the others." Id. The court then concluded that Johnson's theft offenses did not merge, necessarily concluding that the theft-by-taking offenses were not proven with the same facts for purposes of the "actual evidence" test it had applied. Id. Johnson petitioned for a writ of certiorari, which we granted.⁴

2. " ‘Merger’ refers generally to situations in which a defendant is prosecuted for and determined by trial or plea to be guilty of multiple criminal charges but then, as a matter of substantive double jeopardy law, can be punished—convicted and sentenced—for only one of those crimes." Scott v. State , 306 Ga. 507, 509, 832 S.E.2d 426, 428 (2019). Substantive double jeopardy law protects a defendant from multiple punishments when his crimes arise from the same conduct. See generally OCGA § 16-1-7 (a) (1) (providing that "[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime," but "[h]e may not ... be convicted of more than one crime" if, among other things, "[o]ne crime is included in the other"); Neuman v. State , 311 Ga. 83, 86, 856 S.E.2d 289 (2021) (explaining that substantive double jeopardy "protects against multiple convictions or punishments" for crimes "arising from the same conduct") (citation and punctuation omitted).⁵

"Merger analysis often involves counts charging two different crimes." Scott , 306 Ga. at 509, 832 S.E.2d 426 (emphasis in original). When convictions for two different crimes are the subject of a merger analysis, courts evaluate the merger claim using the "required evidence test." See Drinkard v. Walker , 281 Ga. 211, 214-215, 636 S.E.2d 530 (2006)⁶ ; Dukes v. State , 311 Ga. 561, 571, 858 S.E.2d 510 (2021) ("Merger analysis often involves counts charging two different crimes. As this Court has made clear, that is the context in which Drinkard ’s ‘required evidence’ test is applied.") (emphasis in original). But the "required evidence" test does not govern a merger analysis where, as here, a defendant claims that he has been improperly convicted and sentenced for multiple counts of the same crime. See Smith v. State , 290 Ga. 768, 773 n.4, 723 S.E.2d 915 (2012) (explaining that "the ‘required evidence’ test only applies where the same act or transaction constitutes a violation of two distinct statutory provisions " and that "[b]ecause the instant case does not involve two distinct statutory provisions, the ‘required evidence’ test does not apply") (citation and punctuation omitted; emphasis in original).

The Court of Appeals's merger analysis was therefore erroneous in two respects. First, it erred by relying on Braswell and using the long-overruled "actual evidence" test to evaluate Johnson's merger claims. See Braswell , 245 Ga. App. at 604, 538 S.E.2d 492 (applying the "actual evidence" test). And second, it used the wrong type of merger analysis when it applied a test that governs 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 below with respect to his convictions for theft by taking.

3. When a defendant enumerates a merger error after being convicted of multiple counts of the same crime, the correct merger analysis requires courts to 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. Edvalson v. State , 310 Ga. 7, 8, 849 S.E.2d 204 (2020) (quoting Coates v. State , 304 Ga. 329, 330, 818 S.E.2d 622 (2018) (punctuation omitted)). " ‘Whether offenses merge is a legal question, which [an appellate court] review[s] de novo.’ " Womac...