277 Ga. 383 - State v. Marlowe

Fletcher, Chief Justice.

¶1We granted certiorari in these cases to consider conflicting opinions from the Georgia Court of Appeals regarding whether multiple convictions for the possession of a weapon during the commission of a felony merge when there is continuous possession of a single weapon during multiple predicate offenses.1 We conclude that the legislature has not authorized multiple convictions for possession of a weapon when multiple felonies are committed against one victim. Multiple convictions may be authorized in other circumstances such as when there are multiple victims. Therefore, we affirm in part and reverse in part in both cases.

¶2Isaac Pearson was convicted of ten separate felonies based on his gun-wielding attack on three people and ten counts of possession of a gun during the commission of a felony. For the predicate felonies, he received two life sentences, plus consecutive sentences totaling 160 years. For each of the ten possession charges he received five years to run consecutively. The Court of Appeals rejected Pearson’s argument that he could only be sentenced for one possession charge since he possessed only one gun during the crime spree.2

¶3Kevin Marlowe was convicted of three separate felonies based on his knife-wielding attack on an elderly woman and three counts of possession of a knife during the commission of a felony. For the predicate felonies, he received a 20 year sentence, 10 to serve, and two 10 year sentences, all sentences to run concurrently. For each of the possession charges he received five years to rim consecutively. The Court of Appeals held that because the possession of the knife was continuous and the felonies were committed upon one victim, the possession charges should have been merged into one for sentencing.3

¶41. The question of multiple punishments (as opposed to multiple prosecutions) for the same criminal conduct is addressed under the rubric of substantive double jeopardy.4 Whether multiple punishment is permissible requires examination of the legislative intent underlying the criminal statute.5 It is for the legislature to “determine to *384what extent certain criminal conduct has demonstrated more serious criminal interest and damaged society and to what extent it should be punished.”6 Typically, the question is whether the same conduct may be punished under different criminal statutes.7 In that situation, it is appropriate to apply the “actual evidence” test or “required evidence” test found in OCGA §§ 16-1-6 and 16-1-7, the double jeopardy statutes.8 However, a different question is presented here: whether a course of conduct can result in multiple violations of the same statute.9 The United States Supreme Court has held that this question requires a determination of the “unit of prosecution,” or the precise act or conduct that is being criminalized under the statute.10 Other states have also recognized that the required evidence test is not appropriate when the question is multiple punishments involving a single statutory provision.11 Accordingly, the starting point must be the statute itself.

2. OCGA § 16-11-106 (b) provides, in relevant part, that

Any person who shall have on . . . his . . . person a firearm or a knife . . . during the commission of... :

(1) Any crime against or involving the person of another;

(2) The unlawful entry into a building or vehicle;

(3) A theft from a building or theft of a vehicle;

(4) Any crime involving [illegal drugs as enumerated in the final two divisions in subsection (b) of the statute].

and which crime is a felony, commits a felony and,. . . shall be punished by confinement for a period of five years, such sentence to run consecutively to any other sentence.

¶5 *385(a) OCGA § 16-11-106 (e) provides that “[a]ny crime committed in violation ... of this Code section shall be considered a separate offense.” The predecessor to subsection (e) was added in 1976 in order to overturn several decisions of this Court.12 In those cases, this Court had held that the possession of a firearm offense was a lesser-included offense of armed robbery and of murder, and thus, the possession offense had to be vacated.13 In light of this legislative history, subsection (e) does not demonstrate a legislative intent to impose multiple convictions for possession of a weapon based on multiple predicate felonies - the issue considered here. Instead, it evidences only the legislative intent to provide punishment for both the possession offense and the predicate felony.14 Thus, subsection (e) would require that the possession offense stand even when the predicate felony merges as a matter of fact into another offense.15

¶6(b) Additionally, subsection (b) fails to clearly delineate the unit of prosecution. This Court has previously recognized that the language of the subsection (b) statute is ambiguous.16 A similar federal statute is also widely regarded as ambiguous as to the unit of prosecution.17 The federal cases that struggle with defining the unit of prosecution under the federal statute provide extensive analysis of the issue that is useful in interpreting the analogous Georgia statute.

¶718 U.S.C. § 924 (c) (1) (A) provides criminal penalties for “any person who, during and in relation to any crime of violence or drug trafficking crime . . . , uses or carries a firearm, or who in furtherance of any such crime, possesses a firearm.”18 Some federal courts have held that the predicate felony is the proper unit of prosecution, so that there may be as many possession offenses as there are predicate felonies.19 Other courts have held that the unit of prosecution *386focuses on the use of a firearm rather than on the predicate offense.20 Under this analysis, the statute permits “only as many counts as there are uses of the firearm.”21 Where there are distinct uses of a single gun in multiple predicate crimes, multiple convictions may be warranted under this statute.22 We are persuaded by the reasoning of the courts that reject the predicate felony as the unit of prosecution, because “[t]o base a statute’s unit of prosecution on an offense that the statute does not prohibit is illogical.”23 Accordingly, we reject the analysis that would permit as many possession counts as there are predicate felonies. Instead, the relevant unit of prosecution is the possession of a firearm during the commission of the specified categories of felonies.24

¶8(c) The first category of felony is “any crime against. . . the person of another.” By reference to any crime against a person, the legislature has indicated its intent to impose separate criminal liability upon a defendant for each person against whom a crime is committed. The remaining categories of felonies are those involving illegal entry into or theft from a building or vehicle and those involving illegal drugs. By specifying the separate categories, the legislature has indicated its intent to impose separate criminal liability upon a defendant for each separate category of crime committed. Under this interpretation, 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), and additionally once for firearm possession for every crime enumerated in subsections (b) (2) through (5).

¶93. In light of the above legal analysis, in Marlowe, the Court of Appeals properly merged the two possession offenses stemming from attempted robbery and aggravated assault against a single victim. However, the possession charge predicated on the burglary count, a *387crime involving illegal entry into a building, would stand. In Pearson, the Court of Appeals permitted ten possession offenses simply because there were ten predicate felonies. A proper analysis permits three possession charges based on the crimes committed against three separate victims, and two possession charges based on the crimes of burglary and motor vehicle hijacking. The remaining possession charges, predicated on multiple felonies committed against the victims, should have been merged.

¶10Judgment affirmed in part and reversed in part in Case No. S03G0351 and affirmed in part and reversed in part in Case No. S03G0564.

All the Justices concur, except Carley and Thompson, JJ, who concur in part and dissent in part, and Hines, J, who dissents.

¶11Marlowe v. State, 258 Ga. App. 152 (572 SE2d 685) (2002); Pearson v. State, 258 Ga. App. 651 (574 SE2d 820) (2002).

¶12Pearson, 258 Ga. App. at 657-658.

¶13Marlowe, 258 Ga. App. at 153.

¶14Keener v. State, 238 Ga. 7, 8 (230 SE2d 846) (1976).

¶15State v. Estevez, 232 Ga. 316, 318 (206 SE2d 475) (1974); Missouri v. Hunter, 459 U. S. 359, 366 (103 SC 673, 74 LE2d 535) (1983) (“[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing cotut from prescribing greater punishment than the legislature intended”). :

¶16Id.

¶17 See, e.g., Jordan v. State, 267 Ga. 442, 447 (480 SE2d 18) (1997).

¶18Id. For a cogent discussion of the varying interpretations given the double jeopardy statutes, see Paul M. Kurtz, Criminal Offenses and Defenses in Georgia (2002 ed.), at 713-717.

¶19 See United States v. Universal C.I.T. Credit Corp., 344 U. S. 218, 224 (73 SC 227, 97 LE 260) (1952).

¶20 Id.; Sanabria v. United States, 437 U. S. 54, 69-70 (98 SC 2170, 57 LE2d 43) (1978); Bell v. United States, 349 U. S. 81, 83-84 (75 SC 620, 99 LE 905) (1955). See also United States v. Reed, 647 F.2d 678, 681 (6th Cir. 1981).

¶21 See, e.g., Townsend v. State, 823 So.2d 717, 722 (Ala. Crim. App. 2002); Williams v. State, 796 A.2d 1281, 1285-1286 (Del. 2002); Brown v. State, 535 A.2d 485, 488 (Md. 1988); Commonwealth v. Rabb, 725 N.E.2d 1036,1041 (Mass. 2000); People v. Wakeford, 341 N.W.2d 68, 72-73 (Mich. 1983); State v. French, 79 S.W.3d 896, 898-899 (Mo. 2002); State v. Crowder, 810 P.2d 299, 305 (Mont. 1991); Swafford v. State, 810 P.2d 1223, 1228 (N.M. 1991); State v. Richardson, 875 S.W.2d 671, 676-677 (Tenn. Crim. App. 1993); Ex Parte Hawkins, 6 S.W.3d 554, 556-558 (Tex. Crim. App. 1999); State v. Adel, 965 P.2d 1072,1074 (Wash. 1998); State v. Green, 534 S.E.2d 395, 400-401 (W.Va. 2000). Compare Gilchrist v. State, 270 Ga. 287, 288 (508 SE2d 409) (1998) (addressing merger of possession offenses under double jeopardy statutes).

¶22 Ga. Laws 1976, pp. 1591, 1592 (“[notwithstanding any prior court decision to the contrary, any crime committed in violation of this section shall be considered a separate offense”).

¶23Roberts v. State, 228 Ga. 298 (185 SE2d 385) (1971); Spence v. State, 233 Ga. 527 (212 SE2d 357) (1975); Chumley v. State, 235 Ga. 540 (221 SE2d 13) (1975).

¶24 See Busch v. State, 271 Ga. 591, 594 (523 SE2d 21) (1999) (discussing statutory history); Miller v. State, 250 Ga. 436, 437 (298 SE2d 509) (1983) (1976 amendment superseded statutory double jeopardy provisions, and it was now permissible “to convict a person of both possession of a firearm during the commission of a felony and the accompanying felony in a single prosecution”) (quoting Wiley v. State, 250 Ga. 343, 351-352 (296 SE2d 714) (1982)).

¶25 Compare Garrett v. State, 263 Ga. 131 (429 SE2d 515) (1993) (possession charge that is underlying felony of felony murder charge merges as matter of law with felony murder).

¶26Busch, 271 Ga. at 593.

¶27 United States v. Finley, 245 F.3d 199, 207 (2nd Cir. 2001) (regarding the federal felony possession statute, 18 U.S.C. § 924 (c) (1) “there is a widely-shared view that the statute’s text is ambiguous”).

¶28 “possession of a firearm in furtherance of any such crime” was added to the statute in 1998. Pub. L. § 105-386 1 (a) (1).

¶29United States v. Anderson, 59 F.3d 1323, 1334 (D.C. Cir. 1995) (en banc); United States v. Taylor, 13 F.3d 986, 993-994 (6th Cir. 1994); United States v. Lindsay, 985 F.2d 666, *386674 (2nd Cir. 1993) (considering issue of multiple firearms connected to one crime).

¶30United States v. Phipps, 319 F.3d 177,185-186 (5th Cir. 2003). United States v. Camps, 32 F.3d 102, 109 (4th Cir. 1994); United States v. Lucas, 932 F.2d 1210, 1222-1223 (8th Cir. 1991).

¶31Phipps, 319 F.3d at 186.

¶32Id. at 188-189 (reversing multiple convictions, but noting unique facts of defendants using “single firearm a single time for a dual criminal purpose, then immediately discarding it”); United States v. Wilson, 160 F.3d 732, 749 (D.C. Cir. 1998) (multiple convictions might be sustained where “evidence shows distinct uses of the. firearm, first to intimidate and then to kill”).

¶33Camps, 32 F.3d at 109.

¶34 Although it is possible to conclude that the appropriate unit of prosecution is the predicate felony, the legislature’s choice is not clear and an ambiguous criminal statute must be strictly construed against the State. State v. Langlands, 276 Ga. 721 (583 SE2d 18) (2003); Busch, 271 Ga. at 595.

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