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Court of Appeals of Georgia.


No. A12A0066.

    Decided: March 25, 2014

Michael Robert McCarthy, Amanda Cosson McCoy, George Brandon Sparks, Dustin Shane Strobel, for Appellant. George Jason Souther, Susan Franklin, Kermit Neal McManus, Herbert McIntosh Poston Jr., for Appellee.

This case returns to us from the Supreme Court of Georgia in order to determine whether, under the particular facts of the case sub judice, there exists ambiguity in the statutes defining the crimes of identity fraud1 and financial-transaction-card theft2 such that the trial court was required to apply the rule of lenity when sentencing appellant Todd Christopher McNair. Because we answer this question in the affirmative, we reverse the judgment and remand the case to the trial court for resentencing in accordance with this opinion.

The relevant facts and procedural history are as follows. The victim was lost and stopped her vehicle in order to ask McNair and his two companions, an adult female and a juvenile female, for directions. And after providing her with the requested information, McNair asked the victim if she was willing to drive him and his friends to the mall. The victim agreed to do so, and the adult female companion initially sat in the front-passenger seat, while McNair entered the back of the vehicle. But almost immediately, McNair asked to change seats and ended up in the front-passenger seat—where the victim's purse was sitting in the floorboard.

After they arrived at the mall and exited the victim's car, McNair announced to his companions that he “got me some money today,” as he held the victim's wallet containing cash and credit cards. The trio then entered the mall, where they collectively selected items to purchase. The adult female companion testified that it was McNair who initially took the wallet out of the victim's purse, but the females who (alternatively) handed the victim's credit cards to the various cashiers to make their group purchases.

Thereafter, McNair was arrested and charged by accusation on one count of identity fraud for willfully possessing the victim's financial-transaction-card number without her authorization and with the intent to fraudulently use that information in violation of OCGA § 16–9–121(a)(1),3 which provides that

[a] person commits the offense of identity fraud when he or she willfully and fraudulently ․ [w]ithout authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person․ 4

Following his conviction by a jury, McNair argued during the sentencing hearing that the rule of lenity required that he be sentenced for committing a financial-transaction-card theft pursuant to OCGA § 16–9–31(a)(1), the penalty for which is less severe than that for identity fraud.5 OCGA § 16–9–31(a)(1) provides that

“[a] person commits the offense of financial transaction card theft when ․ [h]e takes, obtains, or withholds a financial transaction card from the person, possession, custody, or control of another without the cardholder's consent; or who, with knowledge that it has been so taken, obtained, or withheld, receives the financial transaction card with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder ․ 6

The trial court rejected McNair's argument and sentenced him for identity fraud, after which he appealed to this Court. And in an unpublished opinion, we affirmed the trial court's ruling based upon a series of cases in which this Court previously held that the rule of lenity is confined to those situations when the statutory violations at issue involve a misdemeanor and a felony, but otherwise has no application when both crimes are classified as felonies.7 The Supreme Court of Georgia granted certiorari in the case, disapproved of our prior precedents, and held that the rule of lenity is not so limited.8 It thereafter remanded the case to this Court for us to determine whether McNair was, in fact, entitled to be sentenced under the lesser statute of financial-transaction-card theft. We now conclude that the rule of lenity applies in the case sub judice.

As our Supreme Court has explained, the rule of lenity finds its roots in the vagueness doctrine, “which requires fair warning as to what conduct is proscribed.”9 More specifically, the rule of lenity 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 Of course, if it is determined after applying the traditional canons of construction that the relevant statutory text is unambiguous, then the rule of lenity will not apply.11 The fundamental inquiry when making that assessment is whether the identical conduct would support a conviction under either of two crimes with differing penalties.12

Here, we necessarily begin our analysis with “familiar and binding canons of construction.”13 Indeed, in considering the meaning of a statute, “our charge as an appellate court is to ‘presume that the General Assembly meant what it said and said what it meant.’ “14 And toward that end, we must “afford the statutory text its plain and ordinary meaning, consider the text contextually, and read the text ‘in its most natural and reasonable way, as an ordinary speaker of the English language would.’ “15 Put another way, where the language of a statute is plain and susceptible of only one natural and reasonable construction, “courts must construe the statute accordingly.”16 Finally, we are also mindful of our duty to “construe statutes to give sensible and intelligent effect to all of their provisions and to refrain from any interpretation which renders any part of the statutes meaningless.”17

The Georgia Public Defender Standards Council (“GPDSC”) strenuously argues, in its role as amicus curiae, that when enacting the two statutes, the General Assembly intended for the financial-transaction-theft statute, and indeed the entirety of Title 16, Chapter 9, Article 3,18 to govern only those crimes involving the actual physical possession or use of a financial-transaction card. On the other hand, GPDSC maintains that the identity-fraud statute, and the entirety of Title 16, Chapter 9, Article 8,19 was designed to address those crimes that do not require an actual financial-transaction card, but rather involve the acquisition and possession of identifying information—i.e. the financial-transaction-card numbers—which can be used to fraudulently obtain access to, mostly electronically, another person's credit or assets. In GPDSC's view, the financial-transaction-card-theft statute addresses a narrower range of conduct, and “for purposes of statutory interpretation, a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent [as reflected by the plain meaning of the relevant text].”20 Thus, according to GPDSC, the critical distinction between the two crimes at issue is the fraudulent possession and/or use of the tangible financial-transaction card itself (financial-transaction-card theft), as opposed to the numbers on the card independently of the card (identity fraud), and it claims McNair committed only the former. And while we find GPDSC's argument persuasive in some respects, we disagree that the demarcation line between these two offenses is as clear as it posits.

Both the financial-transaction-card-theft statute and the identity-fraud statute criminalize not only the unauthorized use of a financial-transaction card and/or its numbers, but also the fraudulent possession with intent to use same.21 Thus, while the distinction made by GPDSC may be easily drawn after a suspect has unlawfully obtained and physically presented a financial-transaction card to a merchant in order to effectuate a fraudulent purchase, that distinction is less obvious when a suspect is found to be in the unlawful possession of numerous financial-transaction cards from one or more victims with the fraudulent intent to use, but prior to the actual use, of those cards. In such a situation, we are not prepared to categorically say that the General Assembly intended to eliminate all prosecutorial discretion and mandate that the suspect be charged exclusively with financial-transaction-card theft, as opposed to identity fraud.22 Consequently, our inquiry is not at an end.

The question remains whether, under the particular facts of this case, an ambiguity exists between the financial-transaction-theft statute and the identity-theft statute such that the rule of lenity applies. Significantly, McNair was not accused of taking or using the victim's credit card, but of willfully and fraudulently possessing the credit-card number without the victim's authorization and with the fraudulent intent to use that information.23 These same operative facts satisfy the essential elements of both OCGA § 16–9–31(a)(1) and OCGA § 16–9–121(a)(1), neither of which requires proof of any fact that the other does not.24 Thus, although there are other ways in which either crime could have been committed, McNair's conduct, as charged, subjected him to prosecution and sentencing under both OCGA § 16–9–31(a)(1) and OCGA § 16–9–121(a)(1). And because these statutes provide different grades of punishment for the same criminal acts, McNair is entitled to the rule of lenity.25 We therefore reverse McNair's identity-fraud conviction and remand this case for resentencing under the financial-transaction-card-theft statute, which mandates a lesser punishment.26

Judgment reversed and case remanded for resentencing.


PHIPPS, C. J., and ELLINGTON, P. J., concur.

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