Shropshire v. State

902 S.E.2d 677

SHROPSHIRE

v.The STATE.

A22A0838

Court of Appeals of Georgia.

May 29, 2024

Debra Kay Jefferson, Lawrenceville, for Appellant.

Fani T. Willis, Kevin Christopher Armstrong, Atlanta, Ruth M. Pawlak, for Appellee.

Brown, Judge.

In Shropshire v. State, 365 Ga. App. 653, 878 S.E.2d 562 (2022) ("Shropshire I"), this Court vacated Tony Shropshire’s convictions and sentences for aggravated child molestation and two counts of child molestation after concluding that the convictions merged based on a unit-of-prosecution analysis. Id. at 660-663 (5), 878 S.E.2d 562. Thereafter, our Supreme Court granted certiorari in this case, vacated that portion of our opinion, and remanded the case with instruction for this Court to reconsider the question of merger in light of the Supreme Court’s opinion. State v. Shropshire, 318 Ga. 14, 896 S.E.2d 541 (2023) ("Shropshire II"). Accordingly, we now vacate Division 5 of our opinion in Shropshire I, affirm Shropshire’s aggravated child molestation conviction, vacate his two child molestation convictions and sentences thereon, and remand the case to the trial court with direction. The rest of our opinion remains unchanged.¹

[1–3] Shropshire contends that the trial court erred by not merging his aggravated child molestation and two child molestation convictions into a single conviction. The State concedes that Shropshire’s two child molestation convictions should have merged into a single count for sentencing but asserts that Shropshire’s convictions for aggravated child molestation and child molestation should not merge.

"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. Merger analysis often involves counts charging two different crimes and that is the context in which Drinkard’s "required evidence" test is applied. [Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).] But merger questions may also arise when a defendant is charged with multiple counts of the same crime.

(Citation and punctuation omitted.) Hogg v. State, 356 Ga. App. 11, 16 (2) (b), 846 S.E.2d 183 (2020). In such a case, "the doctrine of substantive double jeopardy is implicated, and the ‘unit of prosecution,’ or the precise act criminalized by the statute, must be identified." (Citation and punctuation omitted.) Scott v. State, 356 Ga. App. 152, 155, 846 S.E.2d 241 (2020) ("Scott II"). Accordingly, a unit-of-prosecution analysis should be applied to determine if Shropshire’s two counts of child molestation merge. See Scott v. State, 306 Ga. 507, 509 (2), 832 S.E.2d 426 (2019) ("Scott I"); Cobb v. State, 356 Ga. App. 187, 191 (3) (b), 843 S.E.2d 912 (2020). Because child molestation and aggravated child molestation are different crimes, a required evidence analysis applies when considering whether those crimes merge. See Shropshire II, 318 Ga. at 16-17 (2), 896 S.E.2d 541.

[4–6] (a) Two statutory provisions govern the merger of different crimes in Georgia: OCGA §§ 16-1-6 and 16-1-7 (a). See Metcalf v. State, 349 Ga. App. 408, 413-414 (2) (a), 825 S.E.2d 909 (2019). Pursuant to OCGA § 16-1- 7 (a):

[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.

Under OCGA § 16-1-6, a crime is "included in" another crime where (1) "[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of [the other crime]" or (2) it differs from the other crime "only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission." OCGA § 16-1-6 (1), (2). We apply the required evidence test to determine if crimes arising from the same conduct merge. See Johnson v. Williams, 304 Ga. 771, 772, 822 S.E.2d 264 (2018). See also Drinkard., 281 Ga. at 215, 636 S.E.2d 530 ("The ‘required evidence’ test reflects the statutory language of OCGA § 16-1-6 (1) …. "). Under this test, "where the same act or transaction constitutes the violation of two distinct statutory provisions," we must determine "whether each [crime] requires proof of a fact which the other does not. If so, then two offenses exist, and one is not ‘included in’ the other." (Citation and punctuation omitted.) Metcalf, 349 Ga. App. at 419 (2) (d), 825 S.E.2d 909. Further, "[w]here facts show one crime was completed before the commission of a subsequent crime, the crimes are separate as a matter of law, and there is no merger." Womac v. State, 302 Ga. 681, 684- 685 (3), 808 S.E.2d 709 (2017).

In a number of cases decided post-Drinkard, this Court has considered whether aggravated child molestation and child molestation merge, and where counts in the indictment are predicated on "separate and distinct acts of molestation occur[ring] at different locations or on different dates, no merger occurs." Metts v. State, 297 Ga. App. 330, 336 (5), 677 S.E.2d 377 (2009) (where indictment alleged that the defendant committed child molestation by causing the victim to view pornographic movies, and committed aggravated child molestation by forcing the victim to perform oral sex on him during the movies, and acts occurred on "at least six separate occasions over a three-year period," no merger). See also Spires v. State, 357 Ga. App. 440, 850 S.E.2d 854 (2020) (rejecting defendant’s ar- gument that his two child molestation convictions arising out of touching the victim’s buttocks and vagina should merge into his aggravated child molestation convictions arising out of oral sodomy and sexual intercourse, respectively, because the indictment alleged that the various sexual contact occurred over an extended period of time rather than "a single course of conduct occurring over a relatively short time frame"); Watkins v. State, 336 Ga. App. 145, 151 (4), 784 S.E.2d 11 (2016) (no merger where indictment charged the defendant with aggravated child molestation " ‘by placing his mouth on the vagina of the victim’ " and child molestation " ‘by touching the vagina of the victim,’ " victim’s testimony established that the defendant kissed her vagina on one occasion, and that, on separate occasions, the defendant touched the victim’s vagina); Carver v. State, 331 Ga. App. 120, 122 (4), 769 S.E.2d 722 (2015) (where indictment charged defendant with aggravated child molestation and two counts of child molestation based on acts occurring on multiple occasions over the course of a summer, "each of the counts was for a separate and distinct crime" and did not merge). Compare Barclay v. State, 306 Ga. App. 766, 768 (2), 702 S.E.2d 907 (2010) (defendant’s conviction for child molestation for exposing his penis in the victim’s presence merged into defendant’s remaining aggravated child molestation conviction based on anal intercourse with the victim because indictment alleged offenses occurred in the same time frame, and it was "undisputed that the offenses arose out of the same conduct of [the defendant]").

[7] In this case, Count 1 of the indictment charged Shropshire with aggravated child molestation by "licking [the victim’s] female sex organ with his tongue … said act involving an act of sodomy, and Counts 3 and 4 of the indictment charged Shropshire with child molestation by "touching [the victim’s] female sex organ with his finger," and "placing his male sex organ on the victim’s female sex organ," respectively. Unlike Metts, Watkins, Carver, and Spires, the instant case involves a single incident rather than multiple, separate occasions over a period of time. But unlike Barclay, in which the defendant was convicted of multiple offenses based on a single act, Shropshire was charged with and convicted of multiple counts based on multiple acts during a single incident. The evidence showed that the crime of aggravated child molestation was complete before Shropshire committed the crimes of child molestation. See Womac, 302 Ga. at 684-685 (3), 808 S.E.2d 709. Given the manner in which the crimes were indicted and the evidence presented at trial, the three offenses do not merge under the provisions of OCGA § 16-1- 7 (a), which apply when "the same conduct of the accused establish[es] the commission of multiple crimes." (Emphasis supplied.) Cf. Quiz v. State, 344 Ga. App. 616, 617-618 (2), 810 S.E.2d 678 (2018) (where indictment charged defendant with aggravated battery by stinking the victim with his fist and aggravated assault by striking the victim with a wire hanger and pouring lighter fluid on her person and setting her, on fire, and evidence showed that defendant completed one crime before committing the other and that the crimes were based on different conduct during a single incident, crimes did not merge); Garrett v. State, 306 Ga. App. 420, 422 (b), 703 S.E.2d 666 (2010). Having concluded that Shropshire’s aggravated child molestation and child molestation convictions do not merge under the required evidence test,² we turn to whether Shropshire’s two child molestation convictions should merge.

[8] (b) Counts 3 and 4 of the indictment charged Shropshire with child molestation by "touching [the victim’s] female sex organ with his finger, with the intent to arouse and satisfy the accused’s sexual desires" and "placing his male sex organ on the victim’s female sex organ, with the intent to arouse and satisfy accused’s sexual desires," respec- tively. It is undisputed that these counts were based on multiple touches to the victim...