Scott v. State

Decision Date30 June 2020
Docket NumberA18A0751
Citation846 S.E.2d 241,356 Ga.App. 152
Parties SCOTT v. The STATE.
CourtGeorgia Court of Appeals

Lauren Beth Shubow, Margaret Elizabeth Bullard, for Appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Arthur C. Walton, Assistant District Attorneys, for appellee.

Gobeil, Judge.

On remand from the Supreme Court of Georgia, we are asked to determine and apply the unit-of-prosecution analysis to assess whether multiple counts of child molestation, occurring within a relatively short time frame and in a single uninterrupted course of conduct, can support multiple convictions and sentences under OCGA § 16-6-4 (a) (1). As explained more fully in this opinion, we conclude that they cannot given the specific facts of this case and the lack of statutory authority specifying otherwise.

The evidence at trial showed that on the night of February 6, 2011, the victim, who was then 11 years old, awoke to see [Akeem] Scott standing next to her bed; as she put her head back down to go back to sleep, she felt Scott reach under her clothes to fondle her breasts, buttocks and anal area, and vagina, inserting his finger into both her anus and vagina. When the victim then got out of bed to use the bathroom, Scott picked the lock on the bathroom door and opened it to watch the victim urinate, despite her telling him three times to get out. Three of the child molestation counts were based on the bedroom incident: Count 2 of the indictment was based on Scott's touching the victim's breasts, Count 3 on his touching her buttocks, and Count 4 on his touching her vagina. The final count (Count 5) was based on the bathroom incident.

Scott v. State , 306 Ga. 507, 508 (1), 832 S.E.2d 426 (2019). A Fulton County jury found Scott guilty of four counts of child molestation (Counts 2-5).1 The trial court sentenced him to a total term of 80 years with the first 40 years to serve in confinement and the remainder on probation. Following the denial of his motion for new trial, Scott appealed, arguing, as relevant here, that the trial court erred in failing to merge his convictions for child molestation on Counts 2, 3, and 4 of the indictment. Relying on several of this Court's previous opinions, as well as authority from our Supreme Court, we concluded that the trial court did not err by failing to merge these three convictions for child molestation.2 See Scott v. State , 346 Ga. App. XXIV, Case No. A18A0751, slip op. at 16-18 (5) (June 29, 2018) (unpublished). However, because the trial court failed to sentence Scott in compliance with the split sentence requirements of OCGA § 17-10-6.2,3 we vacated Scott's sentence and remanded the case to the trial court for Scott to be re-sentenced in accordance with OCGA § 17-10-6.2 (b). Scott , Case No. A18A0751, slip op. at 18 (6).

The Supreme Court of Georgia granted Scott's petition for certiorari and subsequently held that we "applied the wrong legal analysis in deciding that [three of the] four counts of child molestation of which ... Scott was found guilty do not merge."4 Scott , 306 Ga. at 507, 832 S.E.2d 426. In our previous opinion, we evaluated Scott's merger claim using the "required evidence" test that the Supreme Court set forth in Drinkard v. Walker , 281 Ga. 211, 217, 636 S.E.2d 530 (2006), to determine if one crime is included in another and therefore merges with the other crime. See Scott , Case No. A18A0751, slip op. at 17 (5). Using that test, we examined "whether each offense requires proof of a fact which the other does not." Lucky v. State , 286 Ga. 478, 481 (2), 689 S.E.2d 825 (2010) (citation omitted). Pursuant to this reasoning, we concluded in our previous opinion that the trial court did not err in refusing to merge three of Scott's child molestation convictions because each of the charged acts of child molestation required "proof of a fact which the other did not[.]" Scott , Case No. A18A0751, slip op. at 17 (5) (citing Drinkard , 281 Ga. at 215, 636 S.E.2d 530 ; punctuation omitted). Specifically, we explained that "to secure a conviction on all three counts, the State had to prove that Scott touched three different and distinct parts of [the victim's] body." Scott , Case No. A18A0751, slip op. at 17 (5).

Our Supreme Court, however, vacated this holding, explaining that Drinkard's "required evidence" test only applies in analyzing "counts charging two different crimes." Scott , 306 Ga. at 509 (2), 832 S.E.2d 426 (emphasis in original). See Smith v. State , 290 Ga. 768, 772-773 n. 4, 723 S.E.2d 915 (2012) ("[T]he ‘required evidence’ test only applies ‘where the same act or transaction constitutes a violation of two distinct statutory provisions [.] ") (emphasis in original) (quoting Drinkard , 281 Ga. at 215, 636 S.E.2d 530 ). Here, Scott was charged with and found guilty of four counts of the same crime, namely, child molestation in violation of OCGA § 16-6-4 (a) (1). In this context, the Supreme Court held that the merger analysis requires that we carefully examine the criminal statute at issue "to identify the ‘unit of prosecution‘the precise act or conduct’ that the legislature criminalized." Scott , 306 Ga. at 509-510 (2), 832 S.E.2d 426 (citation and punctuation omitted).

As a result, the Supreme Court vacated Division 55 of our opinion and remanded the case for us "to determine and apply the unit of prosecution for the crime of child molestation in deciding how many convictions and sentences for that crime may be imposed on Scott." Scott , 306 Ga. at 507-508, 832 S.E.2d 426. Accordingly, for the reasons more fully explained below, we now vacate Division 5 of our June 29, 2018 opinion. The rest of our opinion remains unchanged.6

5. Scott contends that the trial court erred in failing to merge his child molestation convictions on Counts 2, 3, and 4, arguing that all of those counts arose out of the same conduct, and therefore, the trial court should have imposed only one conviction and sentence.

" ‘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,[7 ] can be punished — convicted and sentenced — for only one of those crimes." Scott , 306 Ga. at 509 (2), 832 S.E.2d 426. When a defendant is charged, as Scott is here, with multiple counts of the same crime originating from a single course of conduct, "the doctrine of substantive double jeopardy is implicated, and the ‘unit of prosecution,’ or the precise act criminalized by the statute, must be identified." Coates v. State , 304 Ga. 329, 330, 818 S.E.2d 622 (2018). "The Double Jeopardy Clause imposes few limits upon the legislature's power to define offenses. Whether a particular course of conduct involves one or more distinct ‘offenses’ under the statute depends on this legislative choice." Id. (citation and punctuation omitted); Sanabria v. United States , 437 U. S. 54, 69 (II) (B), 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (noting that "[f]ew, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses"). See also OCGA § 16-1-4 ("No conduct constitutes a crime unless it is described as a crime in this title or in another statute of this state."). As our Supreme Court has explained, "the text of the statute itself best reflects that legislative choice." Coates , 304 Ga. at 330, 818 S.E.2d 622. It is the General Assembly's exclusive role 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." State v. Marlowe , 277 Ga. 383, 383-384 (1), 589 S.E.2d 69 (2003) (citation and punctuation omitted).

At trial, the victim, E. W., testified that in 2011, she was spending a Saturday night at the home of her cousin. Also present in the home was Scott, who was the cousin's boyfriend. The cousin left for work early Sunday morning and sometime thereafter, E. W. woke up because she "felt something ... crawling" on her. E. W. looked up, and after seeing Scott standing next to her bed, she put her head back down to go back to sleep. Scott then reached under her clothes and fondled her breasts, her buttocks and anal area, and her vagina. E. W. described the incident at trial as follows:

[VICTIM]: He took his hand and went to my butt first and like kind of pushed his hand all the way in and went around.
[STATE]: Okay.
[VICTIM]: And when he hit my chest. It was under my shirt[.]
...
[STATE]: You said when he touched your – you said he went all the way around?
[VICTIM]: (Nods head.)
[STATE]: All the way around where?
[VICTIM]: Like all the way in my pants.
[STATE]: Okay. And when he touched your butt, did it touch – go in the inside or the outside of your butt?
[VICTIM]: The inside.
[STATE]: And you said – Did he touch your private area?
[VICTIM]: Yes.
[STATE]: Was it the inside or the outside of your private area?
[VICTIM]: Inside.
[STATE]: Okay. And your chest, where on your chest did he touch you?
[VICTIM]: Like right here (indicating).

Based on the foregoing, as relevant here, the indictment charged Scott with committing child molestation: "by touching [the victim's] breasts with the accused's hand" (Count 2); "by touching [the victim's] buttocks with the accused's hand" (Count 3); and "by touching [the victim's] female sex organ with the accused's hand" (Count 4).

Scott argues that the foregoing three child molestation counts arose out of the same conduct, were based on his uninterrupted touching of three parts of the victim's body during a single incident, and therefore should merge. He asserts the crime of child molestation should be treated the same way as the crime of assault, namely, "injuries that occur without an ensuing interval or renewed assault should merge." Or, put another way, "multiple touches close in time" should be considered a single unit of prosecution. See, e.g., Thompson v....

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