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Thomas v. State

Court of Appeals of Georgia, Second Division

October 29, 2019

THOMAS
v.
THE STATE.

          MILLER, P. J., RICKMAN and REESE, JJ.

          RICKMAN, JUDGE

         Cory Alexander Thomas was convicted on two counts of possession of a firearm by a first offender probationer; he was acquitted of several other crimes. The court sentenced Thomas to five years on both counts, to run consecutively. Following the denial of his motions for new trial and to modify his sentence, he appeals, alleging three errors that all turn on whether the trial court was required to merge the two sentences. For the reasons that follow, we affirm but remand with direction.

         The record shows that in Counts 5 and 7, the State charged Thomas with two instances of the same crime using identical language except for the date. In Count 5, Thomas was charged with

the offense of POSSESSION OF FIREARM BY FIRST OFFENDER PROBATIONER in violation of O.C.G.A. 16-11-131(b) for the said accused person, in the County of DeKalb and State of Georgia, on or about the 3rd day of March, 2016, did knowingly and without lawful authority, possess a handgun, a firearm; while on probation as a felony first offender on Indictment Number 14CR1792, in the Superior Court of DeKalb County on October 09, 2014, for the offense of Theft by Taking.

(Emphasis in original.) In Count 7, Thomas was charged with the identical language and emphasis, with the only change being that the date was alleged as "on or about the 5th day of March, 2016." (Emphasis in original).

         At trial, Thomas, a drug dealer, testified that on March 3, 2016, he drove to an apartment complex to meet a woman and sell her some drugs. Thomas had a loaded weapon in his possession at the time, although he knew that, as a probationer, such possession would violate his probation. Upon arrival, the woman asked Thomas to come to an apartment, and, while he waited at the door, the woman went inside. Thomas then heard fighting, so he entered the apartment, saw a man beating the woman, and attempted to break up the fight by striking the man with his gun. When the man pulled out what appeared to be a weapon, Thomas fired his gun at the man multiple times and fled. The shell casings recovered from the scene showed that Thomas fired a .38 caliber weapon. Later that day, Thomas traded the gun for a second gun, a revolver, and he placed that weapon in the middle console of his vehicle. Thomas was arrested on March 5, 2016, and officers found a loaded, .32 caliber firearm in the middle console of his vehicle.

         During its deliberations, the jury sent a note to the court, which the court described as follows:

"Please confirm this is correct: Charge 5, possession of firearm by F.O.P. due to handgun." Handgun is underlined. "Charge 7, possession of firearm by F.O.P. due to revolver." Revolver is underlined.

         When asked to clarify the question, the jury responded, "What is the difference between charge 5 and 7?" The court eventually replied to the jury, "the dates of the alleged offenses." Thomas's counsel did not object. The court did not otherwise charge the jury regarding whether the date in the relevant counts was a material allegation.

         Thomas was convicted on both Counts 5 and 7; he later filed a motion to modify his sentence and a motion to file an out of time appeal. The court granted the motion for out of time appeal, as well as a second such motion, following which Thomas moved for a new trial. Following a hearing on the motions to modify sentence and for new trial, the trial court denied both motions.

         With regard to the merger issue, the trial court held that "because each count referred to a different period of time, the date was made an essential averment of the count which rendered each count of the indictment distinguishable." The court added that each count alleged a specific date, that the dates did not overlap, and that "each count was supported by specific distinguishable and independent evidence at trial." Accordingly, the court held that merger of the two convictions was not required.

         1. In his first enumeration, Thomas contends the trial court erred by not merging the convictions on Counts 5 and 7. We agree.

         (a) It is a long-standing principle of Georgia law that a date or range of dates alleged in an indictment, without more, is not a material allegation of the indictment, and, consequently, unless the indictment specifically states that the alleged dates are material, the State may prove that the alleged crime was committed on any date within the statute of limitations. See Bradford v. State, 285 Ga. 1, 4 (3) (673 S.E.2d 201) (2009); Ledesma v. State, 251 Ga. 885, 885 (1) (a) (311 S.E.2d 427) (1984); Jackson v. State, 64 Ga. 344, 347 (1) (1879). Thus, "such an averment [of materiality] is necessary to overcome a plea of double jeopardy to a subsequent charge of committing the ...


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