concurring specially.
I join in full Divisions 1 through 4 of the majority opinion, but I concur in the result of Division 5 for reasons different than those set forth by the majority. The question is whether a defendant who uses one firearm to shoot a victim and is a party to the use of a second firearm to shoot the same victim is guilty of one or two violations of OCGA § 16-11-106 (b). The majority opinion finds the issue controlled by State v. Marlowe, 277 Ga. 383 (589 SE2d 69) (2003), which held that
where multiple crimes are committed together during the course of one continuous crime spree, a defendant may be convicted once for possession of a firearm during the commission of a crime as to every individual victim of the crime spree, as provided under OCGA § 16-11-106 (b) (1) [crimes against the person], and additionally once for firearm possession for every crime enumerated in subsections (b) (2) through (5) [unlawful entry, theft, controlled substances, and drug trafficking crimes].
Marlowe, 277 Ga. at 386.
I have doubts about the reasoning of the Marlowe majority, as did the three dissenting Justices in that case, who would have held that a separate conviction is authorized under OCGA § 16-11-106 (b) for each predicate felony the defendant commits while possessing a firearm, even though there was only one victim. See 277 Ga. at 387-389 (Carley, J., joined by Thompson, J., concurring in part and dissenting in part); id. at 389-391 (Hines, J., dissenting).
This is not the case, however, to consider whether Marlowe was correctly decided or whether it should nevertheless be followed as a matter of stare decisis. Whether the Marlowe majority or the Marlowe dissenters were right, it is clear to me that the number of firearms involved is not the appropriate unit of prosecution for violations of OCGA § 16-11-106 (b). In addressing the same issue under the similar federal statute, 18 USC § 924 (c) (1), at least nine federal circuits have held that “a defendant could not be convicted of multiple § 924 (c) counts for using multiple guns in a single [predicate] offense,” with only the Eighth Circuit, to some extent, going the other way. United States v. Cappas, 29 F3d 1187, 1189 (7th Cir. 1994) (citing cases). As the Sixth Circuit explained in rejecting the Eighth Circuit’s view, although the text of § 924 (c) (1), like the text of OCGA § 16-11-106 (b), refers to the singular “a firearm,” the firearm is not the focus or subject of the statute. See United States v. Taylor, 13 F3d 986, 993-994 (6th Cir. 1994). I agree, even if there remains debate about what else is the correct focus of the statute *423(the number of victims, the number of “crime spree[s],” the number of predicate offenses, or some other point). It may make sense to punish a defendant who brings two guns to a potentially dangerous crime more harshly than a defendant who possesses only one gun, but that policy is not unambiguously reflected in the text of OCGA § 16-11-106 (b) and interpreting a criminal statute in that way would conflict with the rule of lenity.
Decided June 28, 2010. Sharon L. Hopkins, for appellant. Daniel J. Porter, District Attorney, Trade H. Cason, Assistant District Attorney, Thurhert E. Baker, Attorney General, Jason C. Fisher, Assistant Attorney General, for appellee.In this case, after merger of the predicate felonies committed by Stovall, there remains only one predicate felony conviction (malice murder). Accordingly, even under the Marlowe dissenters’ view, I believe there could be only one conviction under OCGA § 16-11-106 (b), regardless of the number of firearms involved. For these reasons, I respectfully concur in the result of Division 5.
I am authorized to state that Presiding Justice Carley and Justice Hines join in this special concurrence.