Coates v. State

FINAL COPY




                    S17G1949. COATES v. THE STATE.

      HUNSTEIN, Justice.

      Appellant Hubert Coates was convicted of, inter alia, four counts of

possession of a firearm by a convicted felon and was sentenced on each count.1

Coates appealed; the Court of Appeals affirmed his convictions and sentences,

concluding that OCGA § 16-11-131 (b) (2014)2 permits a defendant to be

separately convicted and sentenced for each of the multiple firearms in his

possession. See Coates v. State, 

 (

) (2017). We

granted certiorari in this case to consider the Court of Appeals’ holding, and, for



      1
        The facts as recounted by the Court of Appeals are as follows:
      [I]n May 2014, the police executed a search warrant on two neighboring
      addresses in Coffee County. Coates operated a make-shift store selling
      snack items and beverages at one of the addresses, and he lived at the
      other address next door with his wife. The police recovered less than an
      ounce of marijuana during the search inside and outside the make-shift
      store. They recovered four firearms during the search of Coates’
      residence.
Coates v. State, 

 (

) (2017).
      2
        Because Coates’ crimes occurred in 2014, the 2014 version of this statute
applies, but the pertinent language has not been changed by later amendments.
the reasons discussed below, we reverse that judgment, vacate Coates’

convictions and sentences, and remand the case with direction.

      Where, as here, we are presented with the question of whether a single

course of conduct can result in multiple convictions and sentences under the

same statute, the doctrine of substantive double jeopardy is implicated, and the

“unit of prosecution,” or the precise act criminalized by the statute, must be

identified. See State v. Marlowe, 

 (1) (

) (2003). 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.”

Sanabria v. United States, 

 (

, 57 LE2d 43) (1978);

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 we have said

numerous times, the text of the statute itself best reflects that legislative choice.

      Our analysis turns on the proper interpretation of OCGA § 16-11-131 (b)

(2014) which states, in relevant part, as follows: “Any person . . . who has been

convicted of a felony by a court of this state . . . and who receives, possesses, or



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transports any firearm commits a felony and, upon conviction thereof, shall be

imprisoned for not less than one nor more than five years[.]” Id. When we

construe such statutory authority on appeal, our review is de novo. Hankla v.

Postell, 

 (

) (2013).             In determining the

appropriate unit of prosecution under this statute,

      we apply the fundamental rules of statutory construction that
      require us to construe the statute according to its terms, to give
      words their plain and ordinary meaning, and to avoid a construction
      that makes some language mere surplusage. We must also seek to
      effectuate the intent of the Georgia legislature. OCGA § 1-3-1 (a).
      In this regard, in construing language in any one part of a statute, a
      court should consider the entire scheme of the statute and attempt
      to gather the legislative intent from the statute as a whole.

(Citation and punctuation omitted.) In re Estate of Gladstone, 

(

) (2018). As a criminal statute, OCGA § 16-11-131 (b) (2014) must

be strictly construed against the State. Pope v. State, 

 (

) (2017). So we turn first to the text itself.

      The parties’ arguments, as well as the opinion of the Court of Appeals,

focus in large part on the phrase “any firearm.” While we agree that this term

is important, this phrase must be read concomitantly with the remainder of the

statute so as to avoid rendering any portion of the statute meaningless. Looking


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at the phrase “any firearm” (for now), “any” can refer to both the quantity and

the quality of the noun it precedes. See Webster’s New World Dictionary of the

American Language (2nd college ed. 1980) (defining “any” as “some, no matter

how much or how little, how many, or what kind”) (emphasis supplied).

However, subsection (a) of the statute defines “firearm” as “any handgun, rifle,

shotgun, or other weapon which will or can be converted to expel a projectile

by the action of an explosive or electrical charge.” (Emphasis supplied.) OCGA

§ 16-11-131 (a) (2) (2014). As such, “any,” as used in subsection (b), does not

refer to the kind of firearm. Rather, “any,” as used in that subsection, must be

understood in the quantitative sense; in this context, the word “does not imply

a specific quantity; the quantity is without limit.” Gerald Nelson & Sidney

Greenbaum, An Introduction to English Grammar 58 (4th ed. 2016) (emphasis

supplied). In short, the phrase “any firearm,” as used in the statute under

consideration, indicates that the quantity of firearms, whether one or many, is

inconsequential.

      Transposing, then, our interpretation of the phrase “any firearm” into the

statutory language leaves us with a statute that reads, in essence, as follows:



                                        4
             Any person . . . who has been convicted of a felony by a court
      of this state . . . and who receives, possesses, or transports [one or
      more firearms] commits a felony, and upon conviction thereof, shall
      be imprisoned for not less than one nor more than five years[.]

(Emphasis supplied.) OCGA § 16-11-131 (b) (2014). Reading the statute in a

natural and ordinary way, it is clear that 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.

Accordingly, we conclude that OCGA § 16-11-131 (b) is unambiguous and

permits only one prosecution and conviction for the simultaneous possession of

multiple firearms.3

      Bolstering this conclusion is the fact that this Court has previously

recognized that “[i]n enacting OCGA § 16-11-131 . . . , the General Assembly

sought to keep guns out of the hands of those individuals who by their prior

conduct had demonstrated that they may not possess a firearm without being a

threat to society.” Landers v. State, 

 (

) (1983).

And while “[i]t may make sense to punish a defendant who [possesses] two

      3
        Because 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.

                                        5
guns . . . more harshly than a defendant who possesses only one gun,” Stovall

v. State, 

 (

) (2010) (Nahmias, J., concurring), the

General Assembly has not, by clear and unambiguous language, provided that

the possession of multiple firearms authorizes multiple prosecutions.4 See also

Acey v. Commonwealth, 

 (Va. Ct. App. 1999) (“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.’”). In fact,

the General Assembly has employed such clear, unambiguous language 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 considered a separate offense.”); OCGA § 12-9-55 (d)

(“Each day of continued unlawful registration shall be a separate offense.”);


      4
         We recognize 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.” Haley v. State, 

 (

) (2011). See, e.g.,
United States v. Verrecchia, 

 (II) (A) (1st Cir. 1999); United States v.
Valentine, 706 F2d 282 (V) (10th Cir. 1983); United States v. Rosenbarger, 536 F2d
715 (III) (6th Cir. 1976). Plainly put, all roads lead to the same conclusion: Coates
may be convicted and sentenced for only one count of possession of a firearm by a
convicted felon.

                                           6
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.”).

      Based on the foregoing, the Court of Appeals erred. Accordingly, we

reverse the Court of Appeals’ decision, vacate Coates’ convictions and

sentences for the four counts of possession of a firearm by a convicted felon,

and remand this case for the trial court to convict and resentence Coates on only

one of those counts.

      Judgment reversed in part and vacated in part, and case remanded with

direction. Hines, C. J., Melton, P. J., Benham, Nahmias, Blackwell, Boggs, and

Peterson, JJ., concur.




                                        7
                          Decided August 27, 2018.

      Certiorari to the Court of Appeals of Georgia — 

.

      Joshua A. Larkey, for appellant.

      George E. Barnhill, District Attorney, Ian L. Sansot, Assistant District

Attorney, for appellee.




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