GORDON v. STATE

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Court of Appeals of Georgia.

GORDON v. The STATE.

No. A15A1052.

Decided: November 18, 2015

Michael Robert McCarthy, for Appellant. George Jason Souther, Susan Franklin, John Scott Helton, Herbert Mcintosh Poston Jr. for Appellee.

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.

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

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

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 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 Supreme Court of Georgia's decision in Brown v. State,30 which, in relevant part, holds that “[b]ecause the same conduct constituted 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 (OCGA §§ 16–10–26 and 40–3–92) contains the false statement statute's element that the falsity concern a matter within the jurisdiction of a governmental entity. For this reason, the rule of lenity cannot apply.36

Because we erred in reaching that conclusion, as will be clear from our analysis infra, we now overrule Reese.

In this matter, in order to assess whether the rule of lenity applies, we necessarily begin our analysis with “familiar and binding canons of construction.”37 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.’ “38 To 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.”39 In other words, when the language of a statute is plain and susceptible of only one natural and reasonable construction, “courts must construe the statute accordingly.”40 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.”41

Turning to the statutes at issue, the felony offense of making a false statement, for which Gordon was indicted, convicted, and sentenced, is committed when a person “knowingly and willfully ․ makes a false, fictitious, or fraudulent statement or representation[ ] ․ 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․”42 But Gordon argued below, and argues yet again on appeal, that the rule of lenity required that he be sentenced for committing the misdemeanor offense of making a false report of a crime, which is committed when a person “willfully and knowingly gives or causes a false report of a crime to be given to any law enforcement officer or agency of this state․”43

In Banta v. State,44 our Supreme Court determined that the rule of lenity does not apply as between the statutes criminalizing the making a false statement45 and misdemeanor obstruction of an officer46 because the two statutes do not criminalize the same conduct.47 The Court observed that the misdemeanor obstruction statute “may be violated in a number of ways; it does not require deception or a false representation.”48 But conversely, it is not possible for the State to “establish that OCGA § 16–10–20 has been violated without establishing a deceitful act.”49 The Court thus concluded that the two statutes do not criminalize the same conduct.

On the other hand, in Dawkins v. State,50 this Court concluded that the rule of lenity applies as between the statutes that criminalize the making of a false statement51 and giving a false name to a police officer.52 There, we determined that, viewing the transaction between the defendant and the police officer as a whole, it was “apparent that the same evidence could be used to prove both the offense of giving a false name and the offense of making a false statement” and that “[u]sing this evidence, a reasonable trier of fact could have found beyond a reasonable doubt that [the defendant's] conduct violated either OCGA § 16–10–20, a felony, or OCGA § 16–10–25, a misdemeanor.”53 Thus, the same conduct constituted both a felony and a misdemeanor, and the rule of lenity applied due to the uncertainty of which penal statute applied .54

Here, the State accused Gordon, via indictment, of making a false statement in violation of OCGA § 16–10–20, in that he “did knowingly and willfully make a false statement, to wit: that his vehicle had been hit by another vehicle near Dalton High School, in a matter within the jurisdiction of the government of a city, to wit: the City of Dalton Police Department․” Upon review of the two statutes at issue, although there are many ways that the crime of making a false statement may be committed,55 Gordon's conduct, as charged, subjected him to prosecution and sentencing under both OCGA § 16–10–20 and OCGA § 16–10–26.56 Indeed, Gordon willfully and knowingly made a false statement to law-enforcement officers by falsely reporting to those officers a crime that he alleged to have occurred in their jurisdiction.57 Thus, because these two statutes provide different grades of punishment for the same criminal conduct, Gordon is entitled to the rule of lenity.58 We therefore reverse Gordon's conviction for felony false statement and remand for resentencing under the misdemeanor false-report-of-a-crime statute.59

Judgment reversed and case remanded for resentencing.

DILLARD, Judge.

DOYLE, C. J., ANDREWS, P. J., BARNES, P. J., ELLINGTON, P. J., PHIPPS, P. J., MILLER, McFADDEN, BOGGS, RAY, BRANCH and McMILLIAN, JJ., concur.