Johnson v. State ( 2022 )

In the Supreme Court of Georgia
Decided: January 19, 2022
S21G0673. JOHNSON v. THE STATE.
WARREN, Justice.
We granted certiorari in this case to address whether Johnson’s
convictions for theft by taking merge under the correct unit-of-
prosecution analysis. Because the Court of Appeals applied the
wrong legal analysis in evaluating whether Johnson’s theft-by-
taking convictions should have merged, we vacate its holding on that
issue and remand with direction to apply the correct analysis.
1. In 2013, Johnson was convicted of one count of burglary
(Count 1), three counts of theft by taking based on the theft of three
different Ford trucks (Counts 2, 3, and 4), and one count of theft by
taking based on the taking of multiple pieces of property, including,
among other things, a riding lawnmower, a plasma cutter, and a
welder (Count 5). The crimes occurred on November 1, 2007, in a
large building containing a shop and office space on the property of
Reid & Reid Contractors (the “company”). Of the three stolen trucks,
two were Ford flatbeds and one was a Ford service truck. One
flatbed truck was parked outside the company’s building; the other
was parked inside a garage in front of the building; and the service
truck was parked inside the shop. The thefts occurred overnight
during a span of time that lasted between five and six hours.
The company had five surveillance cameras recording activity
in its building. A video from one of those cameras, which recorded
activity in the southwest corner of the shop, was introduced into
evidence at trial. That video first showed Johnson in the shop area
at 10:54 p.m. on October 31, 2007. It also showed that Johnson
appeared to leave the shop and the property after completing the
crimes at about 4:30 a.m.1
Between those two times, Johnson could be seen in the camera
1 The surveillance video was included in the trial court record. For
reasons that are not clear based on the record before this Court, the video was
not part of the Court of Appeals’s record. But because it was part of the original
trial court record, the Clerk’s Office of this Court requested and obtained the
video from the Clerk’s Office of the Forsyth County Superior Court.
2
frame of the surveillance video that covered the southwest corner of
the shop except for a number of short periods of time, none of which
lasted more than 15 minutes. The video shows that Johnson spent
the first few hours in the shop walking back and forth with a
flashlight, examining company property and loading it onto a service
truck by hand and by using the company’s forklift. At 2:26 a.m., he
used the forklift to load a welder onto the service truck. At 3:28 a.m.,
he drove the service truck out of the shop bay and out of the camera
frame. Johnson reappeared in the camera frame at 3:34 a.m.,
driving a different piece of equipment—a John Deere Gator—into
the shop. Johnson parked the Gator inside the shop and then
walked out of the shop bay door. He is next seen on the video driving
one of the company’s flatbed trucks into the shop about 15 minutes
later, at 3:49 a.m.2 At that point, he parked the flatbed truck inside
the shop and began loading it with company property, including a
large lawnmower. He also attempted, unsuccessfully, to load the
2 That period of time—the 15 minutes from 3:34 a.m. until 3:49 a.m.—is
the longest period of time that Johnson was not visible on the surveillance
video.
3
Gator onto the flatbed truck. Around 4:30 a.m., he drove the flatbed
truck out of the shop bay. After that, Johnson walked back into the
shop and drove the Gator out of the shop at 4:34 a.m. He then
walked back into the shop again and drove the forklift out of the
shop at 4:36 a.m. Johnson is not seen on the video after 4:36 a.m.
Ultimately, both the service truck and flatbed truck that
Johnson drove out of the shop bay were stolen, as was an additional
flatbed truck that does not appear in the surveillance video. In
addition, a riding lawnmower, a plasma cutter, a toolbox, and a
welder (among other property) were stolen that night. Neither the
Gator nor the forklift were stolen.
As it turns out, the three stolen trucks were equipped with GPS
trackers, and the trucks—along with the stolen equipment—were
located later on the morning of November 1 in a wooded area behind
a residence about 10 miles from the shop. At trial, the State
presented (among other evidence) the surveillance video described
above, as well as evidence that Johnson’s palm print was found on
the forklift that was still parked outside the company’s shop. Part
4
of the State’s theory of the case was that Johnson must have had an
accomplice; to that end, the prosecutor argued that, considering the
amount of time Johnson was in the shop, along with the 10-mile
distance between the shop and the property where the stolen trucks
were transported and parked, it was “obvious[] somebody helped
[Johnson].” The prosecutor also argued that because Johnson was a
party to the crimes of theft by taking of the trucks, the State did not
“have to prove that [Johnson himself] drove a truck” away from the
company property for the jury to find Johnson guilty of theft by
taking of all three trucks. Johnson was found guilty on all counts
and sentenced to a total of 40 years in prison: 20 years on the
burglary count; 10 consecutive years each on Counts 2 and 3; and 10
concurrent years on Counts 4 and 5.
2. Johnson appealed pro se. The Court of Appeals affirmed
in an unpublished opinion, rejecting, among other things, Johnson’s
contention that two of his three theft-by-taking convictions for the
5
theft of the trucks should have merged. 3 See Johnson v. State, Case
No. A20A0996 (Nov. 2, 2020). In reaching that conclusion, the Court
of Appeals evaluated Johnson’s merger claim using the “actual
evidence” test from Braswell v. State, 245 Ga. App. 602, 604 (538
SE2d 492) (2000). See Johnson, slip op. at 15. Under that test,
“‘[t]he key question in determining whether a merger has occurred
is whether the different offenses are proven with the same facts.’”
Id. at 15 (quoting Braswell, 245 Ga. App. at 604). According to the
Court of Appeals, “the evidence showed that one person—Johnson—
stole multiple trucks. Thus, Johnson necessarily had to complete
the theft of each truck prior to stealing the others.” Id. The court
then concluded that Johnson’s theft offenses did not merge,
necessarily concluding that the theft-by-taking offenses were not
proven with the same facts for purposes of the “actual evidence” test
it had applied. Id. Johnson petitioned for a writ of certiorari, which
3 On certiorari, Johnson expands the scope of his merger claim,
contending that three of the four theft-by-taking convictions should have
merged, including the conviction for Count 5, which involved the non-truck
property.
6
we granted.4
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.” Scott v. State, 306 Ga. 507, 509 (832
SE2d 426) 428 (2019). Substantive double jeopardy law protects a
defendant from multiple punishments when his crimes arise from
the same conduct. See generally OCGA § 16-1-7 (a) (1) (providing
that “[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,” but “[h]e may not . . . be convicted of more than one
4 Johnson proceeded pro se both in the Court of Appeals and in the
petition for certiorari that he filed in this Court. After we granted certiorari,
Johnson agreed to be represented by the Appellate Litigation Clinic of the
University of Georgia School of Law. However, shortly after the Clinic filed its
opening brief on his behalf, Johnson contacted the lead counsel and asked him
to withdraw. Counsel then filed a motion to withdraw, which we granted. At
the same time, we also granted permission for the Clinic to file an amicus
curiae reply brief in support of Johnson, which it did. We thank Thomas V.
Burch, Director of the Clinic, and his students, Courtney Hogan and Kirstiana
Perryman, for their service.
7
crime” if, among other things, “[o]ne crime is included in the other”);
Neuman v. State, 311 Ga. 83, 86 (856 SE2d 289) (2021) (explaining
that substantive double jeopardy “protects against multiple
convictions or punishments” for crimes “arising from the same
conduct”) (citation and punctuation omitted).5
“Merger analysis often involves counts charging two different
crimes.” Scott, 306 Ga. at 509 (emphasis in original). When
convictions for two different crimes are the subject of a merger
analysis, courts evaluate the merger claim using the “required
evidence test.” See Drinkard v. Walker, 281 Ga. 211, 214-215 (636
SE2d 530) (2006) 6; Dukes v. State, 311 Ga. 561, 571 (858 SE2d 510)
(2021) (“Merger analysis often involves counts charging two
different crimes. As this Court has made clear, that is the context
5 “Because the Georgia Code expands the proscription of double jeopardy
beyond that provided for in the United States and Georgia Constitutions, all
questions of double jeopardy in Georgia must now be determined under OCGA
§§ 16-1-6 [through] 16-1-8.” Maxwell v. State, 311 Ga. 673, 677 (859 SE2d 58)
(2021) (citation and punctuation omitted).
6We previously used the “actual evidence” test to evaluate merger claims
involving multiple counts for different crimes, but this Court overruled the case
that adopted that test, as well as its progeny, in 2006. See Drinkard, 281 Ga.
at 212-217.
8
in which Drinkard’s ‘required evidence’ test is applied.”) (emphasis
in original). But the “required evidence” test does not govern a
merger analysis where, as here, a defendant claims that he has been
improperly convicted and sentenced for multiple counts of the same
crime. See Smith v. State, 290 Ga. 768, 773 n.4 (723 SE2d 915)
(2012) (explaining that “the ‘required evidence’ test only applies
where the same act or transaction constitutes a violation of two
distinct statutory provisions” and that “[b]ecause the instant case
does not involve two distinct statutory provisions, the ‘required
evidence’ test does not apply”) (citation and punctuation omitted;
emphasis in original).
The Court of Appeals’s merger analysis was therefore
erroneous in two respects. First, it erred by relying on Braswell and
using the long-overruled “actual evidence” test to evaluate Johnson’s
merger claims. See Braswell, 245 Ga. App. at 604 (applying the
“actual evidence” test). And second, it used the wrong type of merger
analysis when it applied a test that governs merger for multiple
counts of different crimes instead of multiple counts of the same
9
crime—the latter being the type of merger claim Johnson presented
below with respect to his convictions for theft by taking.
3. When a defendant enumerates a merger error after being
convicted of multiple counts of the same crime, the correct merger
analysis requires courts to ask whether those crimes arose from “a
single course of conduct” and, if so, whether the defendant can face
multiple convictions and sentences under a unit-of-prosecution
analysis. Edvalson v. State, 310 Ga. 7, 8 (849 SE2d 204) (2020)
(quoting Coates v. State, 304 Ga. 329, 330 (818 SE2d 622) (2018)
(punctuation omitted)). “‘Whether offenses merge is a legal
question, which [an appellate court] review[s] de novo.’” Womac v.
State, 302 Ga. 681, 684 (808 SE2d 709) (2017) (citation omitted).
“As we have said numerous times, the text of the statute itself
best reflects th[e] legislative choice” of “[w]hether a particular course
of conduct involves one or more distinct ‘offenses’ under the statute.”
Coates, 304 Ga. at 330 (citation omitted). In Edvalson, for example,
we concluded that the unit of prosecution under OCGA § 16-12-100
(b) (5) for the sexual exploitation of children was “the possession of
10
any prohibited ‘visual medium’ at all, whether one or one hundred”
of such medium. 310 Ga. at 10. Likewise, in Coates, we concluded
that the appropriate unit of prosecution for a charge of possession of
a firearm by a convicted felon under OCGA § 16-11-131 (b) was the
“general receipt, possession, or transportation of firearms by
convicted felons, rather than the specific quantity of firearms
received, possessed, or transported” and that the statute “is
unambiguous and permits only one prosecution and conviction for
the simultaneous possession of multiple firearms.” 304 Ga. at 331-
332. By contrast, in Smith, 290 Ga. at 769, 772-774, we held that
“the act of fleeing from an individual police vehicle or police officer
after being given a proper visual or audible signal to stop . . ., and
not just the act of fleeing itself, . . . forms the proper ‘unit of
prosecution,’” and rejected the defendant’s claim that five separate
counts of attempting to elude a police officer should have merged.
Georgia’s appellate courts have also explained that part of a
course-of-conduct evaluation may involve examining whether the
defendant acted with the same or differing intents, whether the
11
crimes occurred at the same place, and whether the crimes occurred
at the same time or were separated by some meaningful interval of
time. For example, in Spears v. State, 296 Ga. 598 (769 SE2d 337)
(2015), disapproved of on other grounds by Willis v. State, 304 Ga.
686 (820 SE2d 640) (2018), we held that the defendant had engaged
in two separate courses of conduct and could be convicted of two
burglaries where the evidence showed that
he made one entry of [the victim’s] house with the dual
intent to commit a theft and to murder her but that he
then left the victim’s house, drove to a church, returned
to the house after realizing that he had failed to steal the
victim’s cigarette case containing money, and reentered
the house with the intent to commit the theft of the
cigarette case and money.
Id. at 601-602. The Court of Appeals examined similar factors but
reached the opposite conclusion in Lucas v. State, 328 Ga. App. 741(760 SE2d 257) (2014), holding that the defendant’s “acts of
entering, exiting, and reentering the same restaurant twice within
a five to twenty-minute period for the purpose of committing theft”
could not be punished as two separate burglaries because, among
other things, “the acts were committed at the same location, were
12
inspired by the same criminal intent (to commit theft in the . . .
restaurant building),” “were part of a continuous criminal act
spanning a matter of minutes,” and were not “separated by a
meaningful interval of time or with distinct intentions.”7 Id. at 743-
744. See also, e.g., Lowe v. State, 57 Ga. 171, 171 (1876) (holding
that “[a]n indictment for simple larceny in stealing two hogs at the
same time and place, though alleging that one is the property of one
person, and the other of another, covers but one transaction, and
charges but one offense”); Ingram v. State, 279 Ga. 132, 133 (610
SE2d 21) (2005) (holding that an aggravated assault conviction and
a conviction for murder were “part of a continuous criminal act”
where they were “committed at the same time and place and
inspired by the same criminal intent”).8
7 In the same vein, we have said that to determine whether a defendant’s
crimes arise from the “same conduct” for purposes of statutory procedural
double jeopardy under OCGA § 16-1-7 (b), courts should consider whether the
crimes “arise from the same transaction or continuing course of conduct, occur
at the same scene, occur on the same date, and occur without a break in the
action.” Maxwell v. State, 311 Ga. 673, 679 (859 SE2d 58) (2021) (citation and
punctuation omitted).
8 We note that in Edvalson, in concluding that “OCGA § 16-12-100 (b) (5)
13
Here, by invoking an overruled and inapplicable merger test,
the Court of Appeals failed to engage with the relevant case law that
governs merger claims pertaining to multiple convictions for the
same crime. As a result, it did not evaluate whether Johnson
engaged in a single course of conduct on the night of the thefts, and,
if applicable, what the unit of prosecution would be for theft by
taking under OCGA § 16-8-2. “[I]t is important to conduct the
applicable analysis, and it is appropriate for the Court of Appeals to
do it in the first instance.” Scott, 306 Ga. at 510 (describing acts of
child molestation “alleged in different counts [as] part of a single
course of conduct occurring in a relatively short time frame,” holding
that the Court of Appeals “failed to engage in the applicable unit-of-
is unambiguous and permits only one prosecution and conviction for the
simultaneous possession of multiple items of ‘visual media’” depicting a minor
engaged in sexually explicit conduct, we cautioned that because the case
concerned “only . . . simultaneous possession,” we expressed no opinion
“regarding cases involving the possession of different visual media in separate
places or at separate times,” thus intimating that such factors might affect a
course-of-conduct analysis if presented in a different case. See Edvalson, 310
Ga. at 10, n.8 (emphasis supplied). We reserved this same question in Coates,
explaining that “[b]ecause this case concerns only the simultaneous possession
of multiple firearms, we do not address the statute’s applicability in cases
involving the possession of multiple firearms in different spaces or times.” 304
Ga. at 332, n.2.
14
prosecution analysis,” and remanding for that court to apply the
correct analysis). We therefore vacate the Court of Appeals’s holding
regarding the merger of Johnson’s theft-by-taking convictions and
remand the case to the Court of Appeals for it to apply the
appropriate legal analysis, consistent with this opinion.
Judgment vacated and case remanded with direction. All the
Justices concur, except Boggs, P.J., who is disqualified.
15