THIRD DIVISION
MERCIER, J.,
GOBEIL and HODGES, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 30, 2020
In the Court of Appeals of Georgia
A18A0751. SCOTT v. THE STATE.
GOBEIL, Judge.
On remand from the Supreme Court of Georgia, we are asked to determine and
apply the unit-of-prosecution analysis to assess whether multiple counts of child
molestation, occurring within a relatively short time frame and in a single
uninterrupted course of conduct, can support multiple convictions and sentences
under OCGA § 16-6-4 (a) (1). As explained more fully in this opinion, we conclude
that they cannot given the specific facts of this case and the lack of statutory authority
specifying otherwise.
The evidence at trial showed that on the night of February 6, 2011, the
victim, who was then 11 years old, awoke to see [Akeem] 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.
Scott v. State, 306 Ga. 507, 508 (1) (822 SE2d 426) (2019). A Fulton County jury
found Scott guilty of four counts of child molestation (Counts 2-5).1 The trial court
sentenced him to a total term of 80 years with the first 40 years to serve in
confinement and the remainder on probation. Following the denial of his motion for
new trial, Scott appealed, arguing, as relevant here, that the trial court erred in failing
to merge his convictions for child molestation on Counts 2, 3, and 4 of the indictment.
Relying on several of this Court’s previous opinions, as well as authority from our
Supreme Court, we concluded that the trial court did not err by failing to merge these
three convictions for child molestation.2 See Scott v. State, Case No. A18A0751, slip
1
The jury acquitted Scott of one count of aggravated sexual battery (Count 1).
2
Scott does not contend that his fourth child molestation conviction, Count 5,
should have merged with the other three child molestation convictions.
2
op. at 16-18 (5) (June 29, 2018). However, because the trial court failed to sentence
Scott in compliance with the split sentence requirements of OCGA § 17-10-6.2,3 we
vacated Scott’s sentence and remanded the case to the trial court for Scott to be re-
sentenced in accordance with OCGA § 17-10-6.2 (b). Scott, Case No. A18A0751, slip
op. at 18 (6).
The Supreme Court of Georgia granted Scott’s petition for certiorari and
subsequently held that we “applied the wrong legal analysis in deciding that [three
of the] four counts of child molestation of which [] Scott was found guilty do not
merge.”4 Scott, 306 Ga. at 507. In our previous opinion, we evaluated Scott’s merger
claim using the “required evidence” test that the Supreme Court set forth in Drinkard
v. Walker, 281 Ga. 211, 217 (636 SE2d 530) (2006), to determine if one crime is
included in another and therefore merges with the other crime. See Scott, Case No.
A18A0751, slip op. at 17 (5). Using that test, we examined “whether each offense
3
OCGA § 17-10-6.2 (b) provides that “any person convicted of a sexual
offense shall be sentenced to a split sentence which shall include” both “the minimum
term of imprisonment specified in the code section applicable to such sexual offense”
and “an additional probated sentence of at least one year[.]”
4
The Supreme Court further listed and disapproved of several of this Court’s
previous opinions in which it appeared that we failed to engage in the applicable unit-
of-prosecution analysis with respect to determining whether multiple counts of child
molestation should merge. Scott, 306 Ga. at 510 (2).
3
requires proof of a fact which the other does not.” Lucky v. State, 286 Ga. 478, 481
(2) (689 SE2d 825) (2010) (citation omitted). Pursuant to this reasoning, we
concluded in our previous opinion that the trial court did not err in refusing to merge
three of Scott’s child molestation convictions because each of the charged acts of
child molestation required “proof of a fact which the other did not[.]” Scott, Case No.
A18A0751, slip op. at 17 (5) (citing Drinkard, 281 Ga. at 215; punctuation omitted).
Specifically, we explained that “to secure a conviction on all three counts, the State
had to prove that Scott touched three different and distinct parts of [the victim’s]
body.” Scott, Case No. A18A0751, slip op. at 17 (5).
Our Supreme Court, however, vacated this holding, explaining that Drinkard’s
“required evidence” test only applies in analyzing “counts charging two different
crimes.” Scott, 306 Ga. at 509 (2) (emphasis in original). See Smith v. State, 290 Ga.
768, 772 n. 4 (723 SE2d 915) (2012) (“[T]he ‘required evidence’ test [only applies]
‘where the same act or transaction constitutes a violation of two distinct statutory
provisions[.]’”) (quoting Drinkard, 281 Ga. at 215) (emphasis in original). Here,
Scott was charged with and found guilty of four counts of the same crime, namely,
child molestation in violation of OCGA § 16-6-4 (a) (1). In this context, the Supreme
Court held that the merger analysis requires that we carefully examine the criminal
4
statute at issue “to identify the ‘unit of prosecution’ — ‘the precise act or conduct’
that the legislature criminalized.” Scott, 306 Ga. at 509-510 (2) (citation and
punctuation omitted).
As a result, the Supreme Court vacated Division 55 of our opinion and
remanded the case for us “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.” Scott, 306 Ga. at 507-508. Accordingly, for the reasons
more fully explained below, we now vacate Division 5 of our June 29, 2018 opinion
and substitute the following. The rest of our opinion remains unchanged.6
5. Scott contends that the trial court erred in failing to merge his child
molestation convictions on Counts 2, 3, and 4, arguing that all of those counts arose
5
The Supreme Court opinion references Division 2 of our opinion with respect
to the merger analysis. Scott, 306 Ga. at 507. However, this appears to be a
scrivener’s error, because Division 2 of our opinion addresses the sufficiency of the
evidence to support Scott’s conviction on Count 5 of the indictment, which charged
Scott with child molestation based on his entering the bathroom to observe the victim
urinate. See Scott, Case No. A18A0751, slip op. at 8-11 (2). The merger issue is
addressed in Division 5 of our original opinion. See id. at 16-18 (5).
6
The Supreme Court clarified that “the other issues Scott raises in his petition
do not warrant further review, so our grant of certiorari and our remand to the Court
of Appeals are limited to the merger issue.” Scott, 306 Ga. at 508 n. 1.
5
out of the same conduct, and therefore, the trial court should have imposed only one
conviction and sentence.
“‘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,[7] can be punished — convicted and
sentenced — for only one of those crimes.” Scott, 306 Ga. at 509 (2). When a
defendant is charged, as Scott is here, with multiple counts of the same crime
originating from a single course of conduct, “the doctrine of substantive double
jeopardy is implicated, and the ‘unit of prosecution,’ or the precise act criminalized
by the statute, must be identified.” Coates v. State, 304 Ga. 329, 330 (818 SE2d 622)
(2018). “The Double Jeopardy Clause imposes few limits upon the legislature’s
power to define offenses. Whether a particular course of conduct involves one or
more distinct ‘offenses’ under the statute depends on this legislative choice.” Id.
(citation and punctuation omitted); Sanabria v. United States, 437 U. S. 54, 69 (II)
(B) (98 SCt 2170, 57 LE2d 43) (1978) (noting that “[f]ew, if any, limitations are
7
“The doctrine of double jeopardy has two components: the ‘procedural’ bar
on double jeopardy, which places limitations on ‘multiple prosecutions for crimes
arising from the same conduct,’ and the ‘substantive’ bar, which protects against
‘multiple convictions or punishments’ for such crimes.” Williams v. State, __ Ga. __,
__ (1) (838 SE2d 235) (2020) (citation and punctuation omitted).
6
imposed by the Double Jeopardy Clause on the legislative power to define offenses”).
See also OCGA § 16-1-4 (“No conduct constitutes a crime unless it is described as
a crime in this title or in another statute of this state.”). As our Supreme Court has
explained, “the text of the statute itself best reflects that legislative choice.” Coates,
304 Ga. at 330. It is the General Assembly’s exclusive role to “determine to what
extent certain criminal conduct has demonstrated more serious criminal interest and
damaged society and to what extent it should be punished.” State v. Marlowe, 277 Ga.
383, 383-384 (1) (589 SE2d 69) (2003) (citation and punctuation omitted).
At trial, the victim, E. W. testified that in 2011, she was spending a Saturday
night at the home of her cousin. Also present in the home was Scott, who was the
cousin’s boyfriend. The cousin left for work early Sunday morning and sometime
thereafter, E. W. woke up because she “felt something . . . crawling” on her. E. W.
looked up, and after seeing Scott standing next to her bed, she put her head back
down to go back to sleep. Scott then reached under her clothes and fondled her
breasts, her buttocks and anal area, and her vagina. E. W. described the incident at
trial as follows:
Victim: He took his hand and went to my butt first and like kind of
7
pushed his hand all the way in and went around.
State: Okay.
Victim: And when he hit my chest. It was under my shirt[.]
...
State: You said when he touched your – you said he went all the
way around?
Victim: (Nods head.)
State: All the way around where?
Victim: Like all the way in my pants.
State: Okay. And when he touched your butt, did it touch – go in
the inside or the outside of your butt?
Victim: The inside.
State: And you said – Did he touch your private area?
Victim: Yes.
State: Was it the inside or the outside of your private area?
8
Victim: Inside.
State: Okay. And your chest, where on your chest did he touch
you?
Victim: Like right here (indicating).
Based on the foregoing, as relevant here, the indictment charged Scott with
committing child molestation: “by touching [the victim’s] breasts with the accused’s
hand[;]” (Count 2) “by touching [the victim’s] buttocks with the accused’s hand[;]”
(Count 3) and “by touching [the victim’s] female sex organ with the accused’s
hand[.]” (Count 4).
Scott argues that the foregoing three child molestation counts arose out of the
same conduct, were based on his uninterrupted touching of three parts of the victim’s
body during a single incident, and therefore should merge. He asserts the crime of
child molestation should be treated the same way as the crime of assault, namely,
“injuries that occur without an ensuing interval or renewed assault should merge.” Or,
put another way, “multiple touches close in time” should be considered a single unit
of prosecution. See, e.g., Thompson v. State, 291 Ga. App. 355, 360-361 (5) (662
9
SE2d 135) (2008) (holding that two counts of battery, one for hitting the victim in the
mouth and one for hitting her in the eye, merged into one where there was no
evidence of “two completed exchanges separated by a meaningful interval of time or
with distinct intentions”); Davis v. State, 186 Ga. App. 491, 492 (2) (367 SE2d 884)
(1988) (evidence did not authorize conclusion that assault with pistol was
“completed” between time appellant fired shots while on the run and time when he
caught up with victim and attempted to fire additional shots, and therefore those
counts merged). Compare Hug v. State, 205 Ga. App. 746, 747 (1) (423 SE2d 700)
(1992) (act of assaulting victim with hammer was completed before shooting
occurred and therefore the two aggravated assault counts did not merge).
Neither our Court nor the Supreme Court of Georgia has yet to apply the unit-
of-prosecution analysis to determine whether multiple counts of child molestation,
occurring within a relatively short time frame in a single course of conduct, can result
in multiple convictions and sentences under OCGA § 16-6-4 (a) (1). However, we
find guidance in Coates,8 where our Supreme Court recently applied the unit-of-
8
The Supreme Court issued the Coates decision in August 2018, after we
issued our previous decision in this case on June 29, 2018.
10
prosecution analysis to determine that OCGA § 16-11-131 (b)9 — the statute
prohibiting possession of firearms by convicted felons — permits only one
prosecution and conviction for the simultaneous possession of multiple firearms. 304
Ga. at 329. The Supreme Court explained “the gravamen of the offense is the general
receipt, possession, or transportation of firearms by convicted felons, rather than the
specific quantity of firearms received, possessed, or transported.”10 Id. at 331. As
such, the Court concluded that the text of OCGA § 16-11-131 (b) “is unambiguous
and permits only one prosecution and conviction for the simultaneous possession of
multiple firearms.” Id. at 331-332 (footnote omitted).
To determine and apply the unit of prosecution with respect to the child
molestation statute, OCGA § 16-6-4, we necessarily “begin our analysis with familiar
and binding canons of construction. Indeed, in considering the meaning of a statute,
9
OCGA § 16-11-131 (b) provides: “Any person . . . who has been convicted
of a felony by a court of this state . . . and who receives, possesses, or transports any
firearm commits a felony and, upon conviction thereof, shall be imprisoned for not
less than one nor more than ten years[.]”
10
The Supreme Court also noted: “If the possession of a firearm by a felon is,
of itself, the dangerous act, the number of weapons with which a felon is armed
becomes irrelevant. Whether the felon bears one or one hundred firearms, the felon
is ‘dangerously armed.’” Coates, 304 Ga. at 332 (quoting Acey v. Commonwealth, 29
Va. App. 240, 250 (511 SE2d 429) (1991)).
11
our charge as an appellate court is to presume that the General Assembly meant what
it said and said what it meant.” Martinez v. State, 325 Ga. App. 267, 273 (2) (750
SE2d 504) (2013) (citation and punctuation omitted). Statutory interpretation is a
question of law, which we review de novo, giving no deference to the trial court’s
ruling. State v. Hammonds, 325 Ga. App. 815, 815 (755 SE2d 214) (2014).
In so doing, the ordinary signification shall be applied to all words.
Where the language of a statute is plain and susceptible to only one
natural and reasonable construction, courts must construe the statute
accordingly. Criminal statutes are construed strictly against the State,
they must be read according to the natural and obvious import of their
language, and their operation should not be limited or extended by
application of subtle and forced interpretations. Also, if a criminal
statute is susceptible to more than one reasonable interpretation, the
interpretation most favorable to the party facing criminal liability must
be adopted.
State v. Rich, 348 Ga. App. 467, 471 (823 SE2d 563) (2019) (citations and
punctuation omitted).
As relevant here, OCGA § 16-6-4 (a) (1) provides that a person commits the
offense of child molestation when he or she “[d]oes any immoral or indecent act to
or in the presence of or with any child under the age of 16 years with the intent to
12
arouse or satisfy the sexual desires of either the child or the person[.]”11 OCGA § 16-
6-4 (a) (1) (emphasis supplied).
Our analysis hinges on the construction of the term “any immoral or indecent
act”12 in OCGA § 16-6-4 (a) (1) and what that term signifies as to the unit of
prosecution. “The word ‘any’ has troubled many courts.” United States v. Reedy, 304
F3d 358, 365 n. 7 (5th Cir. 2002). It denotes a full spectrum of quantities, including:
(1) one; (2) one, some, or all regardless of quantity; (3) one or more; (4) great,
unmeasured, or unlimited in amount; and (5) all.13 Based on a plain reading of the
11
With an exception not applicable here, “a person convicted of a first offense
of child molestation shall be punished by imprisonment for not less than five nor
more than 20 years and shall be subject to the sentencing and punishment provisions
of Code Sections 17-10-6.2 and 17-10-7.” OCGA § 16-6-4 (b) (1).
12
This Court has broadly construed the types of conduct that constitute an
“immoral or indecent act,” including instances in which no physical contact occurred
between the defendant and victim. See, e. g., Craft v. State, 252 Ga. App. 834, 844
(3) (558 SE2d 18) (2001) (evidence that defendant showed minor a movie of adults
engaging in sexual activity was sufficient to support conviction for child molestation,
where minor testified to watching movie with defendant, and trier of fact could infer
that showing the movie to the minor was for the purpose of arousing sexual desires
of defendant or minor).
13
Merriam-Webster Dictionary (https://www.merriam-webster.com/dictionary
/any) (last visited March 30, 2020); Oxford Advanced American Dictionary
(https://www.oxfordlearnersdictionaries.com/us/definition/american_english/any)
(last visited March 30, 2020).
13
statute, the placement of the word “any” in OCGA § 16-6-4 (a) (1) provides no
guidance as to its intended use in this context. On the one hand, the use of the word
“any” suggests a lack of restriction or limitation with respect to the statute’s intended
scope. Indeed, each act of sexual contact to a part of the victim’s body could
demonstrate an intent to commit an independent and distinct abuse of the child victim
that warrants a separate conviction and sentence, and signifies precisely the type of
harm OCGA § 16-6-4 (a) (1) seeks to prevent. On the other hand, an uninterrupted
course of conduct involving multiple unauthorized acts of molestation could
constitute a single offense. See Coates, 304 Ga. at 331 (“the phrase ‘any firearm,’ as
used in [OCGA § 16-11-131], indicates that the quantity of firearms, whether one or
many, is inconsequential”). The statute is therefore equally sensible using the
acceptable dictionary definitions of (1) one, (2) one, some or all, or (3) one or more.
As such, a plain reading of the statute fails to yield an answer to the question of how
many is “any” and, thus, does not set a unit of prosecution for OCGA § 16-6-4 (a) (1).
By contrast, the General Assembly has employed clear, unambiguous language
with respect to the applicable unit of prosecution in numerous other contexts
throughout the Georgia Code. See, e.g., OCGA § 16-11-106 (e) (“Any crime
committed in violation of subsections (b) and (c) of this Code section shall be
14
considered a separate offense.”); OCGA § 12-9-55 (d) (“Each day of continued
unlawful registration shall be a separate offense.”); OCGA § 34-8-256 (b) (“Each
such act [of making a false statement or representation] shall constitute a separate
offense.”); OCGA § 43-50-45 (c) (“[E]ach act of an unlawful practice shall constitute
a distinct and separate offense.”).
In Cordle v. State, we applied the unit of prosecution analysis to determine
whether two counts of burglary involving separate entries into two distinct businesses
housed within the same overall structure should merge. 345 Ga. App. 584, 584-586
(814 SE2d 569) (2018). Pursuant to the burglary statute in effect at the time of the
defendant’s crimes, “[a] person commits the offense of burglary when, without
authority and with the intent to commit a felony or theft therein, he enters or remains
within . . . any building . . . or any room or any part thereof.” OCGA § 16-7-1 (a)
(2011). According to the defendant in Cordle, the statute did not clearly establish
“whether the legislature intended for a person to be convicted of burglary twice for
entering one building that contained two businesses,” and thus he argued in favor of
merger. Cordle, 345 Ga. App. at 585 (punctuation omitted). We disagreed, explaining
as follows:
15
Pursuant to its plain language, the statute prohibits an individual
harboring the requisite intent from entering or remaining within any
building or portion of a building without proper authority. Our courts
have interpreted the word “building” broadly, refusing to limit the term
to “buildings of any particular type or in any particular condition.” And
by extending the statute to “any room or any part” of a building, the
legislature demonstrated that external physical structures do not
necessarily govern the burglary analysis.
Id. (citations and punctuation omitted). As such, we concluded that two separate
burglaries occurred when the defendant entered two distinct businesses located in the
same building, as the businesses were separated by a wall and each had its own
outside entrance.14 Id. at 585-586. By contrast, in the instant case, the child
molestation statute, OCGA § 16-6-4 (a) (1), does not contain any qualifying language
with respect to acts of molestation involving different enumerated parts of a victim’s
body during a single uninterrupted course of conduct.
14
Compare Lucas v. State, 328 Ga. App. 741, 743-744 (1) (760 SE2d 257)
(2014) (merger required where burglary convictions were based on two entries into
the same restaurant, both involved an intent to steal from the restaurant, and the
entries were part of a single course of conduct, and “were not separated by a
meaningful interval of time or with distinct intentions”) (citation and punctuation
omitted).
16
If the legislature fails to denote the unit of prosecution in the statute, as is the
case here, courts must resolve the ambiguity and are constrained to do so in favor of
the defendant charged with having violated the statute. Bell v. United States, 349 U.
S. 81, 84 (75 SCt 620, 99 LEd 905) (1955). In Bell, the United States Supreme Court
held that when “argumentative skill . . . could persuasively and not unreasonably
reach either of the conflicting constructions,” it is improper to resolve the question
by turning a single transaction into multiple offenses. Bell, 349 U. S. at 83-84. Here,
based on a plain reading of the statute, we cannot say for certain that, as written,
OCGA § 16-6-4 (a) (1) provides for a separate conviction and punishment for each
separate invasion to a victim’s body during a single uninterrupted course of conduct.15
Further, the State presented no evidence to establish that Scott molested the victim
in three completed acts separated by a meaningful interval of time or with distinct
intentions.16 Although the victim testified that Scott touched her breasts, vagina, and
15
In State v. Perrillo, the Supreme Court of Vermont held that a defendant
could only be convicted of one count of lewd and lascivious conduct with a child
after he touched both the victim’s vulva and her chest “[b]ecause a single episode of
sexual misconduct ordinarily involves the wrongdoer touching the victim more than
once[.]” 162 Vt 566, 567-568 (I) (649 A2d 1031) (1994) (citation and punctuation
omitted).
16
By contrast, in State v. Soonalole, a Washington State appellate court
explained that the defendant’s conduct constituted two separate and distinct acts of
17
buttocks while she was in bed, she did not testify as to how much time, if any, elapsed
between the touches. As noted by the Court of Appeals of Wisconsin:
The greater the interval of time between acts constituting an episode of
sexually assaultive behavior, the greater the likelihood of separate
offenses. That the interval is merely minutes or even seconds, as with
the other elements and factors discussed, cannot be a solely
determinative factor. The resolution of this factor is not solved by a
stopwatch approach. An episode of sexually assaultive behavior can and
usually does involve multiple invasions of the intimate parts of the
victim’s body. Whether such invasions are a single offense or separate
offenses can sometimes be placed in perspective by the time interval
between specific acts. Of all the identifiable elements and factors, the
question of time more than any other circumstance seems to permeate all
of the factors. It has its greatest value when it is a frame of reference for
consideration of each of the other factors and elements.
Harrell v. State, 88 Wis2d 546, 572-573 (2) (277 NW2d 462) (1979). See also Cullen
v. United States, 886 A2d 870, 873 (D.C. Ct. App. 2005) (concluding that the statute
did not “provide for a separate offense for the touching of multiple enumerated body
sexual conduct, such that convictions on two child molestation counts did not give
rise to double jeopardy violation, where he fondled victim’s breasts and rubbed her
thighs over her clothes while driving her in car, retreated from victim for remainder
of drive, then began fondling victim again after parking car and escalated the sexual
contact by attempting to reach under victim’s clothing and to reach her vaginal area.
99 Wash. App. 207, 209-214 (992 P2d 541) (2000).
18
parts during a single event when there is no evidence that a defendant has reached a
new fork in the road or acted in response to a fresh impulse.”).
Despite our conclusion in this case, we are mindful that there are reasons
legislators may want to treat child molestation differently from other crimes. Our
Supreme Court has made clear that “[t]he State has a compelling governmental
interest in the welfare of the children.” Phagan v. State, 268 Ga. 272, 274 (1) (486
SE2d 876) (1997) (citation and punctuation omitted). “Its interest in safeguarding the
physical and psychological well-being of a minor is compelling and beyond the need
for elaboration.” Id. (citation and punctuation omitted). This interest is especially true
with respect to the child molestation statute where “the gravamen of the offense” is
to address the unique harms caused by sexual crimes against a child.17 Coates, 304
17
We highlighted the importance of this principle in State v. Williams, where
we employed the unit-of-prosecution analysis to determine “whether Georgia’s statute
governing the possession and control of child pornography, OCGA § 16-12-100 (b)
(8), allows the State to charge a criminal defendant for each separate and distinct
image he or she is alleged to have possessed, or whether the statute instead
criminalizes a course of conduct[.]” 347 Ga. App. 183, 183 (818 SE2d 256) (2018).
We concluded that OCGA § 16-12-100 (b) (8) “allows for a charge and conviction
on each and every image possessed[.]” Id. at 183, 186-187. Specifically, we explained
“each illicit image represents an independent abuse of the child victim depicted, and
signifies precisely the type of harm OCGA § 16-12-100 seeks to prevent.” Id. at 186.
We thus reversed the trial court’s ruling dismissing Counts 2 through 48 of the
indictment, which all charged possession and control of child pornography, as
19
Ga. at 331-332; see Dixon v. State, 278 Ga. 4, 4 (1) (596 SE2d 147) (2004) (“The
statutory rape and child molestation statutes are part of a legislative framework aimed
at protecting children from sexual exploitation and abuse.”).
Moreover, we recognize that the conduct underlying Scott’s three child
molestation convictions, which included his touching the victim’s breasts and
inserting his finger into her vagina and buttocks, involved trauma to and violated
three distinct parts of the victim’s body.18 This scenario contrasts with assault cases,
multiplicitous. Id. at 186-187. The Supreme Court affirmed, but declined to reach the
merits of Williams’s multiplicity claims, explaining we should have “reversed the
trial court’s order on the ground that the trial court lacked authority to dismiss or
consolidate Counts 2 through 48 of Williams’s indictment before trial.” Williams, __
Ga. at __ (2). Notably, our decision in Williams predated the Supreme Court’s ruling
in Coates.
18
We find guidance in other state and federal cases specifically addressing
whether sequential sexual assaults constitute single or separate units of prosecution.
In Harrell v. Israel, the federal district court rejected the defendant’s double jeopardy
argument and affirmed rape convictions for two acts of sexual intercourse with the
same victim, at the same location, within 25 minutes. 478 FSupp. 752 (E.D. Wis.
1979). The court looked to Wisconsin’s rape statute and the legislative intent and
determined that rape’s “unit of prosecution” was not continuous. Id. at 754-756. As
the court stated: “While the means and manner are the same, the intent of [the
defendant] was to commit two acts and, therefore, the acts are punishable as separate
offenses. In no way can the situation be construed as similar to possessory offenses
and bigamy which are by their continuing nature continuous offenses.” Id. at 755-756
(citing In re Snow, 120 U. S. 274 (7 SCt 556, 30 LEd 658) (1887)). Similarly, in
Vaughan v. State, the Missouri Court of Appeals rejected the defendant’s double
jeopardy claim based on two rape convictions for raping the same woman in her bed
20
where courts have found that a series of shots fired or blows administered in quick
succession, often in the heat of the moment, do not constitute a renewed assault and
thus are subject to merger. See, e.g., Montes v. State, 262 Ga. 473, 474 (1) (421 SE2d
710) (1992) (disapproving language in Pryor v. State, 238 Ga. 698 (1) (234 SE2d
918) (1977), that each of a series of shots fired in quick succession constitutes a
“renewed assault”); Bonner v. State, 308 Ga. App. 827, 831 (2) (709 SE2d 358)
(2011) (three charges of simple battery “were part of a continuous criminal act and
thus merged into one”); Thompson, 291 Ga. App. at 360-361 (5). See also Coleman
v. State, 286 Ga. 291, 295 (687 SE2d 427) (2009) (“When a victim suffers multiple
wounds inflicted in quick succession, each infliction of injury does not constitute a
separate assault.”). Similarly, in possession of firearm cases, “the gravamen of the
offense is the general receipt, possession, or transportation of firearms by convicted
felons, rather than the specific quantity of firearms received, possessed, or
transported.” Coates, 304 Ga. at 331.
within 25 to 55 minutes. 614 SW2d 718, 720-723 (Mo. App. 1981). In determining
whether the multiple rapes constituted multiple crimes or a single crime, the court
looked to a variety of factors: time, place of commission, and, of most importance,
the defendant’s intent. Id. at 722. The court found that the defendant formed a
separate intent for each rape and that each rape violated the victim’s integrity and
safety. Id. at 722-723.
21
Nevertheless, in the instant case, based on the text of OCGA § 16-6-4 (a) (1),
the General Assembly has not, by clear and unambiguous language, provided that
multiple touches to a victim, during a single uninterrupted course of conduct,
authorize multiple prosecutions and convictions for separate acts of child molestation.
Our Supreme Court has instructed “that if reasonable minds disagreed as to whether
the statute is, in fact, ambiguous, the rule of lenity would require us to interpret it in
favor of the defendant.” Coates, 304 Ga. at 332 n. 4 (citation and punctuation
omitted); see also Bell, 349 U. S. at 83 (“When Congress leaves to the Judiciary the
task of imputing to Congress an undeclared will, the ambiguity should be resolved
in favor of lenity.”).
Applying the rule of lenity here, as required absent a clear mandate, we are
compelled to hold that Scott’s conduct, as outlined in Counts 2, 3, and 4 of the
indictment, in violation of OCGA § 16-6-4 (a) (1), constitutes a single unit of
prosecution for which he is subject to only one conviction and sentence. We are
therefore constrained to vacate Scott’s child molestation convictions and sentences
on Counts 2, 3, and 4 and remand to the trial court for resentencing on a single
22
count19 in compliance with OCGA § 17-10-6.2 (b).20 If the General Assembly intends
for OCGA § 16-6-4 (a) (1) to punish each separate invasion of a protected area of a
victim’s body in a single uninterrupted course of conduct, we urge the General
Assembly to “employ[] such clear, unambiguous language” to specify the unit of
prosecution accordingly. Coates, 304 Ga. at 332.
Judgment vacated and case remanded with direction. Mercier and Hodges, JJ.,
concur.
19
Scott’s remaining child molestation conviction and sentence on Count 5 was
not subject to merger and remains in effect as a separate conviction.
20
As we noted in Division 6 of our original opinion, the trial court failed to
impose such a sentence in this case. See Scott, Case No. A18A0751, slip op. at 18 (6).
23