Kyle Lee Gordon v. State , 334 Ga. App. 633 ( 2015 )

WHOLE COURT
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
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http://www.gaappeals.us/rules
November 18, 2015
In the Court of Appeals of Georgia
A15A1052. GORDON v. THE STATE.
DILLARD, Judge.
Kyle Lee Gordon appeals from the trial court’s decision to sentence him on a
conviction for the felony offense of making a false statement1 after rejecting his
argument that the rule of lenity applied such that he should be sentenced instead for
the misdemeanor offense of making a false report of a crime.2 Because we agree with
Gordon that the rule of lenity applies, we reverse.
The record reflects that, after waiving his right to a jury trial, Gordon pleaded
guilty to one count of hit and run,3 but entered into a stipulation of facts on a felony
1
See OCGA § 16-10-20.
2
See OCGA § 16-10-26.
3
See OCGA § 40-6-270.
charge of making a false statement, arguing that the rule of lenity applied to the
charged offense. The trial court found Gordon guilty of the charged offense of
making a false statement and, following argument by Gordon and the State, rejected
Gordon’s argument that he should be sentenced for the misdemeanor of making a
false report of a crime.
The facts, as stipulated to by the parties at the bench trial, establish that Gordon
was driving a truck on the day in question while transporting four passengers, some
of whom were riding in the bed of the truck. While driving, Gordon inhaled fumes
from an aerosol can and subsequently collided with and caused damage to another
motor vehicle. Gordon, however, left the scene of the accident.4
To explain the damage that his vehicle sustained, Gordon subsequently told law
enforcement that his vehicle had been struck by another vehicle that was then driven
away by the other driver.5 Gordon also provided a signed statement to law
enforcement, confirming this information; but he later admitted to the same officers
that this statement was untrue. At his arrest, Gordon was charged with leaving the
4
This served as the foundation for Gordon’s violation of OCGA § 40-6-270.
5
The record does not indicate how or why Gordon came to be in contact with
law enforcement after leaving the scene of the hit and run.
2
scene of an accident, following too closely, intentionally inhaling fumes from an air
duster, and making a false report of a crime. However, he was later indicted for hit
and run in violation of OCGA § 40-6-270 and making a false statement in violation
of OCGA § 16-10-20.
This appeal by Gordon follows, in which he takes issue with the trial court’s
determination that the rule of lenity does not apply such that he should be sentenced
for the misdemeanor of making a false report of a crime rather than the felony of
making a false statement. In so concluding, the trial court relied upon this Court’s
prior decision in Reese v. State.6 Specifically, the trial court concluded that Reese was
“on all fours” with the case sub judice and, although a more recent decision by this
Court in McNair v. State7 “casts a shadow” over Reese, that Reese had not been
overruled and was still binding authority.8 Because we agree with Gordon that the
rule of lenity applies, we reverse the trial court’s ruling, and in doing so overrule
Reese, which was wrongly decided on this issue.
6
296 Ga. App. 186 (674 SE2d 68) (2009).
7
326 Ga. App. 516 (757 SE2d 141) (2014).
8
See Court of Appeals Rule 33 (a).
3
We begin by recognizing, as our Supreme Court has explained, that the rule of
lenity finds its roots in the vagueness doctrine, “which requires fair warning as to
what conduct is proscribed.”9 The rule of lenity, more specifically, ensures that if and
when an ambiguity exists in one or more statutes, such that the law exacts varying
degrees of punishment for the same offense, “the ambiguity [will be] resolved in
favor of [a] defendant, who will then receive the lesser punishment.”10 But if after
applying the traditional canons of statutory construction the relevant text remains
9
McNair v. State, 293 Ga. 282, 283 (745 SE2d 646) (2013) (punctuation
omitted); see also United States v. Lanier, 520 U.S. 259, 266 (II) (117 SCt 1219, 137
LE2d 432) (1997) (“[A]s a sort of ‘junior version of the vagueness doctrine,’ . . . the
canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning
by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly
covered.” (citation omitted)); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW:
THE INTERPRETATION OF LEGAL TEXTS 299 (1st ed. 2012) (noting that the rule-of-
lenity canon is justified by the well-established precept that “when the government
means to punish, its commands must be reasonably clear”).
10
McNair, 293 Ga. at 283-84 (punctuation omitted); see also Dixon v. State,
278 Ga. 4, 7 (1) (d) (596 SE2d 147) (2004) (“The rule derives from the instinctive
distaste against men languishing in prison unless the lawmaker has clearly said that
they should.” (punctuation omitted)); Brown v. State, 276 Ga. 606, 608-09 (2) (581
SE2d 35) (2003) (“Where any uncertainty develops as to which penal clause is
applicable, the accused is entitled to have the lesser of the two penalties
administered.” (punctuation omitted)).
4
unambiguous, the rule of lenity will not apply.11 The fundamental inquiry when
making this assessment, then, is whether the identical conduct would support a
conviction under either of two crimes with differing penalties,12 i.e., whether the
11
See McNair, 293 Ga. at 284; Banta v. State, 281 Ga. 615, 617 (2) (642 SE2d
51) (2007); see also United States v. Shabani, 513 U.S. 10, 17 (II) (115 SCt 382, 130
LE2d 225) (1994) (“The rule of lenity, however, applies only when, after consulting
traditional canons of statutory construction, we are left with an ambiguous statute.”
(citation and punctuation omitted)); U.S. v. Johnson, 655 F.3d 594, 606 (II) (B) (2)
(7th Cir. 2011) (holding that the rule of lenity does not require a court to read a
criminal statute “more narrowly than its plain terms suggest”). But see SCALIA &
GARNER, supra note 9, at 298 (“The main difficulty with the rule of lenity is the
uncertainty of its application. Its operation would be relatively clear if the rule were
automatically applied at the outset of the textual inquiry, before any other rules of
interpretation were invoked to resolve ambiguity. Treating it as a clear-statement rule
would comport with the original basis for the canon and would provide considerable
certainty. But that is not the approach the cases have taken.”).
12
See Banta, 281 Ga. at 618 (2) (“Simply put, the two statutes do not define the
same offense[;] . . . [t]hus, the two defined crimes do not address the same criminal
conduct, there is no ambiguity created by different punishments being set forth for the
same crime, and the rule of lenity does not apply.” (citations omitted) (emphasis
supplied)); Dixon, 278 Ga. at 6 (1) (a) (applying rule of lenity when “the State
retained the discretion to prosecute the exact same conduct as either” a misdemeanor
or a felony (emphasis supplied)); see also Dawkins v. State, 278 Ga. App. 343, 345
(629 SE2d 45) (2006) (“[T]he essential requirement . . . is that both crimes could be
proved with the same evidence.” (punctuation omitted)).
5
statutes “define the same offense”13 such that an “ambiguity [is] created by different
punishments being set forth for the same crime.”14
In explaining the appropriate analysis to apply in making this assessment,
however, the Supreme Court of Georgia has cautioned that simply because “a single
act may, as a factual matter, violate more than one penal statute does not implicate the
rule of lenity.”15 By way of example, our Supreme Court has emphasized that,
depending upon attendant circumstances, it is possible for the act of
striking another person with an object to meet the definitions of each of
the crimes of: simple battery, OCGA § 16-5-23, a misdemeanor;
aggravated battery, OCGA § 16-5-24, a felony; simple assault, OCGA
§ 16-5-20, a misdemeanor; aggravated assault, OCGA § 16-5-21, a
felony; and malice murder, OCGA § 16-5-1, a felony.16
13
Banta, 281 Ga. at 618 (2).
14
Id.
15
Id.
16
Id. (citing Green v. State, 279 Ga. 455 (614 SE2d 751) (2005); Washington
v. State, 274 Ga. 428 (554 SE2d 173) (2001); Jackson v. State, 272 Ga. 429 (531
SE2d 700) (2000); Rittenhouse v. State, 272 Ga. 78 (526 SE2d 342) (2000); Spear v.
State, 270 Ga. 628 (513 SE2d 489) (1999)).
6
In the foregoing circumstance, a defendant could be prosecuted for multiple crimes.17
But when a defendant is prosecuted for and convicted of multiple crimes based upon
a single act, “the injustice that must be avoided is sentencing the defendant for more
than one crime following his conviction of multiple crimes based upon the same
act.”18
When a defendant is convicted of multiple crimes based upon the same act,
“the principle of factual merger operates to avoid the injustice.”19 In Drinkard v.
State,20 our Supreme Court of Georgia adopted the “required evidence” test set forth
by the Supreme Court of the United States to resolve these situations.21 Thus, to
determine whether convictions for multiple crimes merge for purposes of sentencing,
17
See OCGA § 16-1-7 (a) (“When 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[ ] [o]ne
crime is included in the other . . . .”); Banta, 281 Ga. at 618 (2).
18
Banta, 281 Ga. at 618 (2); see also State v. Tiraboschi, 269 Ga. 812, 813-14
(504 SE2d 689) (1998).
19
Banta, 281 Ga. at 618 (2); see also Young v. State, 280 Ga. 65, 66-67 (2)
(623 SE2d 491) (2005); Montes v. State, 262 Ga. 473, 474 (1) (421 SE2d 710) (1992).
20
281 Ga. 211 (636 SE2d 530) (2006).
21
Id. at 214; see also Blockburger v. United States, 284 U.S. 299 (52 SCt 180,
76 LEd 306) (1932).
7
“‘[t]he applicable rule is that where the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires proof of a fact which
the other does not.’”22
And while the foregoing analysis employed in the context of merger may be
helpful in assessing whether two statutes criminalize the same conduct by defining
the same offense,23 the “required evidence” test for merger, as established in
22
Drinkard, 281 Ga. at 215 (quoting Blockburger, 284 U.S. at 304).
23
See, e.g., Chynoweth v. State, 331 Ga. App. 123, 126 (2) (768 SE2d 536)
(2015) (holding that OCGA § 16-10-56 (a), riot in a penal institution, and OCGA §
16-10-24 (b), obstruction of a law-enforcement officer by offering violence, “do not
define the same offense and are unambiguous”); McNair, 326 Ga. App. at 521 (“The
[ ] same operative facts satisfy the essential elements of both OCGA § 16-9-31 (a) (1)
and OCGA § 16-9-121 (a) (1), neither of which requires proof of any fact that the
other does not. Thus, although there are other ways in which either crime could have
been committed, [the appellant’s] conduct, as charged, subjected him to prosecution
and sentencing under both OCGA § 16-9-31(a) (1) and OCGA § 16-9-121 (a) (1).
And because these statutes provide different grades of punishment for the same
criminal acts, [the appellant] is entitled to the rule of lenity.” (footnotes omitted));
Metts v. State, 297 Ga. App. 330, 336-37 (6) (677 SE2d 377) (2009) (looking to
elements of offenses of child molestation and furnishing or disseminating harmful
material to a minor to determine that the statutes at issue criminalized different
conduct), abrogated on other grounds by Stephens v. State, 289 Ga. 758 (716 SE2d
154) (2011); Velasquez v. State, 276 Ga. App. 527, 528-29 (1) (623 SE2d 721) (2005)
(looking to the elements of offenses of possessing a false ID and of forgery in the
second degree to determine that because the two offenses “plainly require different
conduct,” the rule of lenity did not apply (i.e., the forgery statute required “intent to
8
Drinkard, is not the test that determines whether the rule of lenity applies.24 But in
Selfe v. State,25 this Court cited to and relied upon Drinkard to conclude that the rule
of lenity did not apply (a conclusion which was, nevertheless, correct).26 We now
disapprove of Selfe to the extent that it can possibly be read to hold that the Drinkard
“required evidence” test is the test to be used for rule-of-lenity analysis.
defraud” while the false ID statute only required that the defendant “knowingly
possess, display, or use any false, fictitious, fraudulent, or altered identification
document”)); see also White v. State, 319 Ga. App. 530, 532-33 (2) (737 SE2d 324)
(2013).
24
Cf. Banta, 281 Ga. at 618 (2) (analyzing whether the rule of lenity applied
to two statutes and determining that it did not because “the two statutes do not define
the same offense,” then proceeding to explain that when a single act violates more
than one penal statute as a factual matter, this does not implicate the rule of lenity
because the injustice in that situation is avoided by application of the principle of
factual merger).
25
290 Ga. App. 857 (660 SE2d 727) (2008).
26
Id. at 863 (3) (relying upon Drinkard to support the holding that, “[h]ere, as
argued by the State, Count 2 required not only proof that [the defendant] furnished
the matter to someone he believed was 15 years old, but that he did it with the intent
to arouse and satisfy his own sexual desires, an element not included in the
misdemeanor offense”); see also Walker v. State, 289 Ga. App. 879, 881-82 (5) (658
SE2d 375) (2008) (limiting analysis of whether rule of lenity applied to a
determination that one statute required, among other things, an element that was not
a required element of the other statute).
9
Instead, Quaweay v. State,27 from which Selfe quotes,28 provides a more
complete explanation as to how examining a statute’s elements and, thus, the
evidence required to obtain a conviction under a statute, can inform the analysis of
whether two statutes criminalize the same conduct. In Quaweay, we explained that
the essential requirement of the rule of lenity is that “both crimes could be proved
with the same evidence.”29 In support of this proposition, we cited to the Supreme
Court of Georgia’s decision in Brown v. State,30 which, in relevant part, holds that
“[b]ecause the same conduct constituted both a felony and a misdemeanor, the rule
27
274 Ga. App. 657 (618 SE2d 707) (2005).
28
290 Ga. App. at 862 (3).
29
274 Ga. App. at 658; see Dawkins, 278 Ga. App. at 345 (quoting Quaweay
for the same proposition); Washington v. State, 283 Ga. App. 570, 572-73 (4) (642
SE2d 199) (2007) (same); Johnson v. State, 283 Ga. App. 99, 107 (5) (640 SE2d 644)
(2006) (same); see also McNair, 326 Ga. App. at 519 (relying upon Quaweay’s
progeny for the same proposition); White, 319 Ga. App. at 532 (2) (same); Rollf v.
State, 314 Ga. App. 596, 598 (2) (b) (724 SE2d 881) (2012) (same), disapproved of
on other grounds by McNair, 293 Ga. 282; Snow v. State, 318 Ga. App. 131, 134 (2)
(733 SE2d 428) (2012) (same); Staib v. State, 309 Ga. App. 785, 793 (3) (711 SE2d
362) (2011) (same); Rouen v. State, 312 Ga. App. 8, 11 (3) (717 SE2d 519) (2011)
(same), disapproved of on other grounds by McNair, 293 Ga. 282; Falagian v. State,
300 Ga. App. 187, 190-91 (2) (684 SE2d 340) (2009) (same), disapproved of on other
grounds by McNair, 293 Ga. 282; Diaz v. State, 296 Ga. App. 589, 591 (1) (676 SE2d
252) (2009) (same).
30
276 Ga. 606, 609 (2) (581 SE2d 35) (2003).
10
of lenity require[d] that [the appellant] be subjected to the penalties for the
misdemeanor, rather than the felony.”31 And earlier in Brown, our Supreme Court
determined that, “[u]sing the same evidence, a reasonable trier of fact could have
found beyond a reasonable doubt that [the defendant’s] conduct violated” either of
two statutes.32 Thus, having determined that the conduct for which the defendant was
indicted and convicted “would have supported either a felony or misdemeanor
conviction, [the Supreme Court] next examine[d] the consequences of this overlap,”33
and determined that the rule of lenity applied.34
Turning to Reese v. State,35 there, we erroneously relied solely upon Selfe’s use
of the Drinkard analysis to conclude that the rule of lenity does not apply to the same
statutes at issue in this case. In Reese, the totality of our analysis on this question was
as follows:
31
Id. (emphasis supplied).
32
Id. at 608 (1) (b).
33
Id.34
Id. at 609 (2).
35
296 Ga. App. 186 (674 SE2d 68) (2009).
11
Reese was convicted of making a false statement under OCGA §
16-10-20, which provides that a person who “knowingly and willfully”
makes a false statement [“]in any matter within the jurisdiction of any
department or agency of state government or of the government of any
county, city, or other political subdivision of this state shall, upon
conviction thereof, be punished by a fine of not more than $1,000.00 or
by imprisonment for not less than one nor more than five years, or
both.[”] Neither the false report of a crime statute nor the false report of
a theft statute (OCGA §§ 16-10-26 and 40-3-92) contains the false
statement statute’s element that the falsity concern a matter within the
jurisdiction of a governmental entity. For this reason, the rule of lenity
cannot apply.36
Because we erred in reaching that conclusion, as will be clear from our analysis infra,
we now overrule Reese.
In this matter, in order to assess whether the rule of lenity applies, we
necessarily begin our analysis with “familiar and binding canons of construction.”37
Indeed, in considering the meaning of a statute, our charge as an appellate court is to
36
Id. at 187-88 (3) (a) (punctuation omitted).
37
Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013); see also
OCGA § 1-3-1.
12
“‘presume that the General Assembly meant what it said and said what it meant.’”38
To that end, we must “afford the statutory text its plain and ordinary meaning,
consider the text contextually, and read the text in its most natural and reasonable
way, as an ordinary speaker of the English language would.”39 In other words, when
the language of a statute is plain and susceptible of only one natural and reasonable
construction, “courts must construe the statute accordingly.”40 Finally, we are also
mindful of our duty to “construe statutes to give sensible and intelligent effect to all
38
Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (quoting
Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55)
(2012)); accord Martinez, 325 Ga. App. at 273 (2); see also OCGA § 1-3-1 (b) (“In
all interpretations of statutes, the ordinary signification shall be applied to all words
. . . . “).
39
Martinez, 325 Ga. App. at 273 (2) (footnotes and punctuation omitted); see
Deal, 294 Ga. at 172 (1) (a) (“[W]e must afford the statutory text its plain and
ordinary meaning[.]” (punctuation omitted)); Luangkhot v. State, 292 Ga. 423, 424
(1) (736 SE2d 397) (2013) (“[T]he ordinary signification shall be applied to all
words.” (punctuation omitted)); Hendry v. Hendry, 292 Ga. 1, 3 (1) (734 SE2d 46
(2012) (“When we consider the meaning of a statutory provision, we do not read it
in isolation, but rather, we read it in the context of the other statutory provisions of
which it is a part.”).
40
Luangkhot, 292 Ga. at 424 (1) (punctuation omitted); accord Martinez, 325
Ga. App. at 273 (2); see also Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is
clear and unambiguous, we attribute to the statute its plain meaning, and our search
for statutory meaning is at an end.” (punctuation omitted)).
13
of their provisions and to refrain from any interpretation which renders any part of the
statutes meaningless.”41
Turning to the statutes at issue, the felony offense of making a false statement,
for which Gordon was indicted, convicted, and sentenced, is committed when a
person “knowingly and willfully . . . makes a false, fictitious, or fraudulent statement
or representation[ ] . . . in any matter within the jurisdiction of any department or
agency of state government or of the government of any county, city, or other
political subdivision of this state . . . .”42 But Gordon argued below, and argues yet
again on appeal, that the rule of lenity required that he be sentenced for committing
the misdemeanor offense of making a false report of a crime, which is committed
when a person “willfully and knowingly gives or causes a false report of a crime to
be given to any law enforcement officer or agency of this state . . . .”43
41
R.D. Brown Contractors, Inc. v. Bd. of Educ. of Columbia Cty., 280 Ga. 210,
212 (626 SE2d 471) (2006) (punctuation omitted); accord Motors Acceptance Corp.
v. Rozier, 278 Ga. 52, 53 (1) (597 SE2d 367) (2004); State v. English, 276 Ga. 343,
348 (578 SE2d 413) (2003).
42
OCGA § 16-10-20.
43
OCGA § 16-10-26.
14
In Banta v. State,44 our Supreme Court determined that the rule of lenity does
not apply as between the statutes criminalizing the making a false statement45 and
misdemeanor obstruction of an officer46 because the two statutes do not criminalize
the same conduct.47 The Court observed that the misdemeanor obstruction statute
“may be violated in a number of ways; it does not require deception or a false
representation.”48 But conversely, it is not possible for the State to “establish that
OCGA § 16-10-20 has been violated without establishing a deceitful act.”49 The
Court thus concluded that the two statutes do not criminalize the same conduct.
On the other hand, in Dawkins v. State,50 this Court concluded that the rule of
lenity applies as between the statutes that criminalize the making of a false
44
281 Ga. 615 (642 SE2d 51) (2007).
45
See OCGA § 16-10-20.
46
See OCGA § 16-10-24 (a).
47
Banta, 281 Ga. at 617-18 (2).
48
Id. at 618 (2).
49
Id.
50
278 Ga. App. 343 (629 SE2d 45) (2006).
15
statement51 and giving a false name to a police officer.52 There, we determined that,
viewing the transaction between the defendant and the police officer as a whole, it
was “apparent that the same evidence could be used to prove both the offense of
giving a false name and the offense of making a false statement” and that “[u]sing this
evidence, a reasonable trier of fact could have found beyond a reasonable doubt that
[the defendant’s] conduct violated either OCGA§ 16-10-20, a felony, or OCGA § 16-
10-25, a misdemeanor.”53 Thus, the same conduct constituted both a felony and a
misdemeanor, and the rule of lenity applied due to the uncertainty of which penal
statute applied.54
Here, the State accused Gordon, via indictment, of making a false statement in
violation of OCGA § 16-10-20, in that he “did knowingly and willfully make a false
statement, to wit: that his vehicle had been hit by another vehicle near Dalton High
51
See OCGA § 16-10-20.
52
See OCGA § 16-10-25 (“A person who gives a false name, address, or date
of birth to a law enforcement officer in the lawful discharge of his official duties with
the intent of misleading the officer as to his identity or birthdate is guilty of a
misdemeanor.”).
53
Dawkins, 278 Ga. App. at 345-46.
54
Id. at 346.
16
School, in a matter within the jurisdiction of the government of a city, to wit: the City
of Dalton Police Department . . . .” Upon review of the two statutes at issue, although
there are many ways that the crime of making a false statement may be committed,55
Gordon’s conduct, as charged, subjected him to prosecution and sentencing under
55
See Haley v. State, 289 Ga. 515, 527 (2) (b) (712 SE2d 838) (2011) (holding
that OCGA § 16-10-20 requires “proof that the defendant knowingly and willfully
made a false statement and that he knowingly and willfully did so in a matter within
the jurisdiction of a state or local department or agency,” but also noting that OCGA
§ 16-10-20 “does not require proof that the defendant made the false statement
directly to the government agency, although in such cases it would normally be
undisputed that the defendant knew and intended that the statement came within the
jurisdiction of the agency”); Watkins v. State, 191 Ga. App. 87, 89 (2) (381 SE2d 45)
(1989) (“By stating to the officer that [someone else] had been driving the truck,
when, in fact, appellant had been the driver, appellant made a false statement in a
matter within the jurisdiction of a department of state government. [OCGA § 16-10-
20] was intended to discourage the making of affirmatively false statements.”
(citation omitted)).
17
both OCGA § 16-10-20 and OCGA § 16-10-26.56 Indeed, Gordon willfully and
knowingly made a false statement to law-enforcement officers by falsely reporting to
those officers a crime that he alleged to have occurred in their jurisdiction.57 Thus,
because these two statutes provide different grades of punishment for the same
56
See McNair, 326 Ga. App. at 521 (“[A]lthough there are other ways in which
either crime could have been committed, [the defendant’s] conduct, as charged,
subjected him to prosecution and sentencing under both [statutes at issue].”); see also
ROBERT E. CLEARY, JR., KURTZ CRIMINAL OFFENSES & DEFENSES IN GEORGIA,
Impending Arrest or Prosecution (III) (F) (False Report of a Crime) (2014 ed.) (“The
final provision which punishes interference with arrest or prosecution of a criminal
offense is § 16-10-26 which makes it a misdemeanor to give a false report or cause
a false report of crime to be given to a law enforcement officer or agency of the state.
The behavior it punishes seems likely to be identical to that under the crime of false
statements, § 16-10-20, which is a felony.” (footnote omitted)).
57
See OCGA § 16-10-20 (providing that a person makes a false statement when
he or she “knowingly and willfully . . . makes a false, fictitious, or fraudulent
statement or representation[ ] . . . in any matter within the jurisdiction of any
department or agency of state government or of the government of any county, city,
or other political subdivision of this state . . . .”); OCGA § 16-10-26 (providing that
a person makes a false report of a crime when he or she “willfully and knowingly
gives or causes a false report of a crime to be given to any law enforcement officer
or agency of this state . . . .”). The State’s argument that the indictment could not
support a conviction for false report of a crime is unavailing. Specifically, the State
contends that the rule-of-lenity argument is not ripe for discussion because the
indictment does not charge Gordon “with the statement that the other person, whom
stuck [sic] his vehicle, left the scene and failed to exchange the information required
under OCGA § 40-6-270.” Pretermitting the fact that the State fails to support this
argument with citation to authority, even if Gordon had made only a bare (false)
assertion that another vehicle struck his, this would suggest a violation of any number
of the uniform rules of the road by one or both drivers. See OCGA § 40-6-1 et seq.
18
criminal conduct, Gordon is entitled to the rule of lenity.58 We therefore reverse
Gordon’s conviction for felony false statement and remand for resentencing under the
misdemeanor false-report-of-a-crime statute.59
Judgment reversed and case remanded for resentencing. Doyle, C. J., Andrews,
P. J., Barnes, P. J., Ellington, P. J., Phipps, P. J., Miller, McFadden, Boggs, Ray,
Branch and McMillian, JJ., concur.
58
See Dixon, 278 Ga. at 7 (1) (d); McNair, 326 Ga. App. at 521; Dawkins, 278
Ga. App. at 346.
59
See McNair, 326 Ga. App. at 521; Dawkins, 278 Ga. App. at 346.
19