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Scott v. State

Supreme Court of Georgia

August 19, 2019


          PER CURIAM.

         In Division 2 of its unpublished opinion in this case, the Court of Appeals applied the wrong legal analysis in deciding that the four counts of child molestation of which Akeem Scott was found guilty do not merge. See Scott v. State, Case No. A18A0751, slip op. at 16-18 (decided June 29, 2018). We grant Scott's petition for a writ of certiorari to address that issue, vacate that division of the Court of Appeals' opinion, and remand for that court 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.[1]

         1. A Fulton County jury found Scott not guilty of aggravated sexual battery but guilty of four counts of child molestation in violation of OCGA § 16-6-4 (a) (1).[2] The evidence at trial showed that on the night of February 6, 2011, the victim, who was then 11 years old, awoke to see 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. The trial court entered a judgment of conviction on all four child molestation counts and sentenced Scott to 20 years on each of the four counts, all to be served consecutively, with 40 years to serve in prison and the remaining 40 years suspended.

         On appeal, Scott claimed, among other things, that the trial court should have merged Counts 2, 3, and 4 and imposed only one conviction and sentence for child molestation based on his uninterrupted touching of three parts of the victim's body during the bedroom incident. The Court of Appeals rejected that claim (and Scott's other claims). The court evaluated the merger claim using the "required evidence" test that this Court set forth in Drinkard v. Walker, 281 Ga. 211, 217 (636 S.E.2d 350) (2006), to determine if one crime is included in another and therefore merges with the other crime. See Scott, slip op. at 17. That test turns on whether each offense required "'proof of a fact which the other [did] not.'" Id. (quoting Drinkard, 281 Ga. at 215). The Court of Appeals reasoned that in this case, to convict Scott on Counts 2, 3, and 4, the State had to prove different facts, namely, "the State had to prove that Scott touched three different and distinct parts of [the victim's] body." Id. The court therefore held that the counts did not merge, citing in support its prior decisions in Daniel v. State, 292 Ga.App. 560, 565-566 (665 S.E.2d 696) (2008), and Frazier v. State, 241 Ga.App. 125, 126 (524 S.E.2d 768) (1999). See Scott, slip op. at 17-18.

         Scott then petitioned for a writ of certiorari, arguing among other things that the Court of Appeals erred in applying the "required evidence" test to the merger question presented by this case. We agree.

         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. See generally OCGA § 16-1-7 (a); Drinkard, 281 Ga. at 212. 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. See Scott v. State, 290 Ga. 768, 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 State v. Marlowe, 277 Ga. 383, 383-384 (589 S.E.2d 69) (2003))).[3]

         But merger questions may also arise when a defendant is charged with multiple counts of the same crime - which is the situation in this case, where Scott was charged with and found guilty of four counts of child molestation. In this context, the merger analysis requires careful interpretation of the criminal statute at issue to identify the "'unit of prosecution'" - "'the precise act or conduct'" that the legislature criminalized. Smith, 290 Ga. at 773 (emphasis removed) (quoting Marlowe, 277 Ga. at 384). See also Coates v. State, 304 Ga. 329, 330 (818 S.E.2d 622) (2018).

         The Court of Appeals failed to engage in the applicable unit-of-prosecution analysis in its unpublished opinion here, in the published Frazier opinion that it cited, see 241 Ga.App. at 126, and in its other published opinions holding that multiple counts of child molestation did not merge, see, e.g., Carver v. State, 331 Ga.App. 120, 122 (769 S.E.2d 722) (2015); Chalifoux v. State, 302 Ga.App. 119, 119-120 (690 S.E.2d 262) (2010); Metts v. State, 297 Ga.App. 330, 336 (677 S.E.2d 377) (2009); Parker v. State, 283 Ga.App. 714, 721-722 (642 S.E.2d 111) (2007); Lunsford v. State, 260 Ga.App. 818, 820-821 (581 S.E.2d 638) (2003); Eggleston v. State, 247 Ga.App. 540, 543 (544 S.E.2d 722) (2001).[4] In some of those cases, where the acts of child molestation appear to have occurred in discrete incidents, precisely identifying the applicable unit of prosecution may not affect the merger decision. See, e.g., Carver, 331 Ga.App. at 120, 122; Metts, 297 Ga.App. at 336. But where, as here, the acts of molestation alleged in different counts were part of a single course of conduct occurring in a relatively short time frame, the unit of prosecution could determine if the defendant faces multiple, consecutive 20-year sentences or only one sentence. See, e.g., Chalifoux, 302 Ga.App. at 119-120; Parker, 283 Ga.App. at 714-715, 721-722; Lunsford, 260 Ga.App. at 819-821; Eggleston, 247 Ga.App. at 541, 543; Frazier, 241 Ga.App. at 125-126. Accordingly, it is important to conduct the applicable analysis, and it is appropriate for the Court of Appeals to do it in the first instance.

         For these reasons, we grant Scott's petition for a writ of certiorari as to the merger issue, vacate Division 2 of the Court of Appeals' opinion, and remand the case for that court to determine and apply the unit of prosecution for child molestation to the merger issue presented.

         Petition for writ of certiorari granted, judgment vacated in part, and case remanded with direction.

         All the Justices concur, except Bethel and Ellington, JJ., disqualified.

          Peterson, Justice, concurring.

         I concur fully in the Court's decision, including in its determination that, aside from the merger issue we decide today, the issues raised in the petition for certiorari do not warrant further review. I write to note that one of those issues warrants review in a future case in which the issue is preserved.

         The petitioner claims that the trial court violated his right to a public trial under the Sixth Amendment to the United States Constitution and Article I, Section I, Paragraph XI (a) of the Georgia Constitution[5] when, as required by OCGA ยง 17-8-54, it closed the courtroom to certain spectators, including some members of his family, during the testimony of the minor victim. This is not the right case to grant certiorari on that issue because the Court of Appeals held it was ...

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