Smallwood v. State

FINAL COPY


            S20A1274. SMALLWOOD v. THE STATE.

     MCMILLIAN, Justice.

     Derek Smallwood challenges his conviction for entering an

automobile under OCGA § 16-8-18, asserting that the statute is void

for vagueness, or alternatively, under the rule of lenity, that he

should have been sentenced for misdemeanor criminal trespass of a

vehicle. We conclude that OCGA § 16-8-18 is not unconstitutionally

vague as applied to the facts of Smallwood’s case, and because that

statute prevails as the more specific statute over criminal trespass

of a vehicle, the rule of lenity does not apply. Therefore, we affirm.

     1. The stipulated facts from Smallwood’s bench trial are as

follows:

          On January 18, 2019, several units of the Paulding
     County Sheriff’s Office were dispatched to Briar Patch
     BBQ’s employee parking lot in reference to a possible
     Entering an Automobile. The victim was informed by a coworker that a person was in his car.
          Deputy Investigator Nathan Geyer approached the
     person in the vehicle, a tan Toyota Camry, and told the
     person to exit the vehicle. The person was identified as
     the Defendant, Derek Paul Smallwood, by his date of
     birth, and he was detained at that time.
          The vehicle’s owner, who was on scene, informed the
     deputies that he did not know Mr. Smallwood, nor gave
     him permission to be in his car. The owner told the
     deputies that he was missing his cell phone from inside
     the car, as well as a bottle of laundry soap. Both items
     were found in a black grocery sack Mr. Smallwood had
     with him in his backpack. Also inside the backpack was a
     glass smoking pipe with burnt residue of marijuana, a
     grinder, and a digital scale.
          When the deputies asked him about the car, Mr.
     Smallwood told them that he was cold and he thought the
     car looked abandoned, so he opened the passenger side
     door and climbed in. The deputies then arrested Mr.
     Smallwood for Entering an Automobile, Theft by Taking,
     and Possession of Drug Related Objects.

     On March 6, 2019, Smallwood was accused of entering an

automobile that was the property of another person with the intent

to commit theft under OCGA § 16-8-181 (Count 1), theft by taking

(Count 2), and two counts of possession of drug-related objects

(Counts 3 and 4). Smallwood thereafter filed a general demurrer to



     1 OCGA § 16-8-18 provides:

           If any person shall enter any automobile or other motor
     vehicle with the intent to commit a theft or a felony, he shall be
     guilty of a felony and, upon conviction thereof, shall be punished
     by imprisonment for not less than one nor more than five years, or,
     in the discretion of the trial judge, as for a misdemeanor.
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Count 1 of the accusation on the grounds that OCGA § 16-8-18 was

void for vagueness. At a February 18, 2020 hearing, the trial court

heard and rejected Smallwood’s arguments that OCGA § 16-8-18 is

void on its face and as applied. Smallwood then waived his right to

a jury trial and proceeded with a bench trial on the stipulated facts.

The trial court found him guilty of all counts and sentenced him in

total to 12 months to be served on probation with a $405 fine.

Smallwood also filed a motion in arrest of judgment as to Count 1 of

the accusation, which the trial court denied. Smallwood timely filed

a notice of appeal and asked for a supersedeas bond pending appeal,

which the trial court granted.

     2. Smallwood claims that his entering an automobile conviction

must be overturned because OCGA § 16-8-18 is unconstitutionally

vague on its face and as applied to his case. We reject these

challenges on the grounds that he can prevail on his facial challenge

only if he prevails on his as-applied challenge, and OCGA § 16-8-18

is not vague as applied to Smallwood.

     The Fourteenth Amendment to the United States Constitution

                                  3
provides that no State shall “deprive any person of life, liberty, or

property, without due process of law.”2

     It is well established that the void for vagueness doctrine
     of the due process clause requires that a challenged
     statute or ordinance give a person of ordinary intelligence
     fair warning that specific conduct is forbidden or
     mandated and provide sufficient specificity so as not to
     encourage arbitrary and discriminatory enforcement.

Derrico v. State, 

 (2) (

) (2019) (citation

and punctuation omitted). “Vagueness invalidates criminal statutes

that fail to provide clear warning to the average citizen of what

conduct is criminally forbidden or fail to provide explicit standards

for its enforcement to law enforcement officers. . . . [V]ague laws

without    clear    enforcement      criteria   can    result    in   unfair,

discriminatory enforcement.” In the Interest of K. R. S., 

 (2) (

) (2009).

     “[V]agueness challenges to statutes which do not involve First




     2 Although Smallwood cites in passing the due process clause of the
Georgia Constitution, along with the Fifth Amendment and Fourteenth
Amendment of the United States Constitution, he makes no separate
argument and cites no cases regarding the Georgia Constitution, so we restrict
our analysis to his claims under the federal constitution.
                                      4
Amendment freedoms must be examined in the light of the facts of

the case at hand.” Daddario v. State, 

 (2) (b) (

) (2019) (citation and punctuation omitted). In other words,

outside of the First Amendment context, if a challenger’s as-applied

vagueness challenge fails, then his facial challenge also fails. See

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 

 (II) (

, 71 LE2d 362) (1982) (“A plaintiff

who engages in some conduct that is clearly proscribed cannot

complain of the vagueness of the law as applied to the conduct of

others.”).

      Smallwood asserts that under recent United States Supreme

Court precedent, his facial challenge prevails as long as he can show

that in some hypothetical circumstance, OCGA § 16-8-18 could be

applied in such a way that the offender would not have fair warning

that his conduct violated the statute.3 Compare United States v.


      3 As an example, Smallwood claims that a person entering their own

automobile with the intent of driving somewhere to commit a theft or felony
would violate OCGA § 16-8-18 even if the person does not actually commit the
theft or felony. We need not address this hypothetical factual scenario for the
reasons set forth below.
                                      5
Salerno, 

 (II) (

, 95 LE2d 697) (1987)

(to succeed on a facial challenge, petitioner “must establish that no

set of circumstances exists under which the [statute] would be

valid”), with Sessions v. Dimaya, __ U.S. __, __ (III) n.3 (

, 200 LE2d 549) (2018) (rejecting assertion that a court may not

invalidate a statute for vagueness simply because the statute is

clear in at least some applications), and Johnson v. United States,

 (II) (B) (

, 192 LE2d 569) (2015)

(“[A]lthough statements in some of our opinions could be read to

suggest otherwise, our holdings squarely contradict the theory that

a vague provision is constitutional merely because there is some

conduct that clearly falls within the provision’s grasp.” (emphasis in

original)).

     We need not answer whether Johnson and Dimaya rejected the

proposition that a facial challenge requires a statute to be vague in

all applications and therefore whether, as Smallwood contends, a

statute is unconstitutionally vague on its face if the challenger can

point to some hypothetical circumstance where the statute does not

                                  6
give fair warning that the conduct is covered. That is because

neither of these cases overrules the principle that for a court to reach

a facial challenge, a challenger must be able to successfully bring an

as-applied challenge.4

      Johnson and Dimaya do not expressly disavow the principle

that outside the First Amendment context, a defendant whose

conduct falls squarely within the confines of the statute cannot

prevail on a facial challenge, and their reasoning and analysis

support that the Supreme Court contemplated applying the


      4   Federal courts have reached differing conclusions about the
implications of rejecting the “no set of circumstances” test as articulated in
Salerno and similar cases and what analysis to apply post-Johnson in
evaluating facial challenges. See, e.g., U.S. Telecom Assn. v. Fed.
Communications Comm., 

 (VI) (B) (D.C. Cir. 2016) (after
noting that Johnson “suggested some skepticism” about the principle that an
enactment is impermissibly vague if it is vague in all its applications, court
declined to “decide the full implications of Johnson”); United States v. Lynch,

 (II) (10th Cir. 2018) (construing Johnson to require “full
vagueness analysis” and concluding that persons of ordinary intelligence could
understand what was prohibited by criminal statute); Guerrero v. Whitaker,

 (9th Cir. 2018) (criminal statute not unconstitutionally vague
on its face when its terms are applied to “real-world facts” rather than an
idealized crime as in Johnson and Dimaya); Henry v. Spearman, 

 (III) (A) (9th Cir. 2018) (to extent that Hoffman Estates is inconsistent with
Johnson and Dimaya, it does not reflect the current state of the law). Although
the decisions of the federal courts of appeal are not binding on this court, we
may find their reasoning instructive. See Macon-Bibb County Hosp. Auth. v.
Nat. Treasury Employees Union, 

 (1) (

) (1995).
                                        7
statutory elements to the defendant’s case in order to resolve

vagueness challenges. See Dimaya, 138 SCt at 1213-14 (III)

(explaining that the criminal statute at issue in Johnson was

unconstitutionally vague because the sentencing court was required

to focus “on neither the ‘real-world facts’ nor the bare ‘statutory

elements’ of an offense” but rather on the “kind of conduct the

‘ordinary case’ of a crime involves” (citation and punctuation

omitted)); Johnson, 

 (II) (B) (Court clarified that

it did not doubt the constitutionality of laws that require application

to “real-world conduct” of a particular defendant “on a particular

occasion” (emphasis omitted)).

     Other federal appellate courts have also read Johnson and

Dimaya as not overruling the principle that a defendant must be

able to prevail in his as-applied challenge in order to proceed with a

facial challenge, and we find their reasoning persuasive. See United

States v. Cook, 

 (II) (A) (7th Cir. 2020) (“Johnson

did not alter the general rule that a defendant whose conduct is

clearly prohibited by a statute cannot be the one to make a facial

                                  8
vagueness challenge.”); United States v. Bramer, 

, 909-

10 (8th Cir. 2016) (per curiam) (“Though [the defendant] need not

prove that [the statute] is vague in all its applications, our case law

still requires him to show that the statute is vague as applied to his

particular conduct.”); see also Daddario, 

 (2) (b)

(concluding that vagueness challenges outside First Amendment

context still must be applied first to defendant’s case after decision

in Johnson).

     Here, a person of ordinary intelligence would have fair warning

that Smallwood’s conduct, namely, entering a vehicle that is not

one’s own and taking another’s possessions from within the vehicle,

would be covered by OCGA § 16-8-18. See, e.g., Derrico, 

 (2) (b) (reckless conduct statute not vague as applied to

defendant who was the aggressor in road rage incident and struck

victim’s car twice while in traffic); Sabel v. State, 

 (2)

(

) (1981) (statute that prohibits defacing government

property was not vague as applied to defendant who spray-painted

state-owned buildings and statues), overruled on other grounds,

                                   9
Rower v. State, 

 (5) (

) (1994).

     Further, OCGA § 16-8-18 does not authorize or encourage

arbitrary and discriminatory enforcement. Smallwood argues that

the statute can be arbitrarily enforced because law enforcement

officers may arbitrarily choose to charge similar conduct under

OCGA § 16-8-18 or for criminal trespass or both. But vague statutes

invite arbitrary and selective enforcement by allowing law

enforcement officers to charge a crime where there was no crime, not

to charge a crime that has a higher penalty rather than a crime with

a lesser penalty. Cf. Hall v. State, 

 (2) (

) (1997) (reckless conduct statute unconstitutionally vague

where it enabled law enforcement “to ‘cast a wide net’ and ensnare

an individual whose actions were deemed to be unjust and

unreasonable only when viewed in retrospect” and not based on “any

clear and definite guidelines set forth in the [s]tatute” (citation

omitted)).

     OCGA § 16-8-18 does not fail to provide sufficient standards for

law enforcement officers such that they are enabled “to throw as

                                 10
large a net as possible to rid the public of undesirables,” and it does

not support charging as criminal any conduct “absent probable

cause of actual criminality.” Johnson v. Athens-Clarke County, 

 (3) (

) (2000) (citation and punctuation

omitted). OCGA § 16-8-18 defines specific standards sufficient for

enforcement without bias, discrimination, or arbitrariness: whether

the defendant entered an automobile or other motor vehicle with the

intent to commit a theft or felony. And in this case, it was stipulated

that Smallwood both entered an automobile and committed a theft

therein. Cf. Satterfield v. State, 

 (

)

(1990) (statute criminalizing indecent and disorderly conduct was

unconstitutionally vague because it impermissibly delegated basic

policy matters to law enforcement, judges, and juries on an ad hoc,

subjective basis); Bullock v. Dallas, 

 (2) (

) (1981) (anti-loitering ordinance was unconstitutionally vague

where “the tests for ascertaining the line separating guilty from

innocent acts” were “speculative,” and allowed for arresting

defendant who parked her car in a parking lot and conversed with

                                  11
others in a parked car for no more than five minutes (citation and

punctuation omitted)). In sum,

          [E]ven if the outermost boundaries of the applicable
     [statute] may be imprecise in certain situations . . . , we
     need not make that determination as [Smallwood’s]
     conduct clearly falls within the “hardcore” of the
     [statute’s] prescriptions, and one to whose conduct a
     statute clearly applies may not challenge it on the basis
     that it may be unconstitutionally vague when applied to
     others.

Gouge v. City of Snellville, 

 (3) (

)

(1982). Thus, we conclude that OCGA § 16-8-18 is not void for

vagueness.

     3. Alternatively, Smallwood contends that even if OCGA § 16-

8-18 is not void for vagueness, the trial court erred because

Smallwood should have been sentenced for misdemeanor criminal

trespass under OCGA § 16-7-21 (b), rather than for a felony under

OCGA § 16-8-18, after applying the rule of lenity.5 We disagree.


     5 At oral argument, the Court questioned whether Smallwood properly

preserved the rule of lenity argument. Since that time, the transcript of the
February 18, 2020 hearing and stipulated bench trial has been filed as a
supplemental record, and the transcript shows that Smallwood made this
argument at the hearing on the general demurrer prior to conviction and entry

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      “The rule of lenity applies when a statute, or statutes,

establishes, or establish, different punishments for the same

offense, and provides that the ambiguity is resolved in favor of the

defendant, who will then receive the lesser punishment.” Banta v.

State, 

 (2) (

) (2007). Often described as

a “junior version of the vagueness doctrine,”6 the rule of lenity

derives from the long-standing canon under the common law that

penal statutes are to be strictly construed against the State and in

favor of the accused. See United States v. Lanier, 

(II) (

, 137 LE2d 432) (1997); Gee v. State, 

 (7) (

) (1969). See generally Johnson, 

 (II) (A) (1) (Thomas, J., concurring) (describing emergence of

the rule of lenity in 16th-century England). Thus, ambiguity in




of judgment, thereby preserving it for appeal. See State v. Hanna, 

 (2) (

) (2019) (explaining that rule of lenity argument may be
raised by filing a general demurrer or in a challenge after conviction).
      6 See, e.g., Hanna, 

 (2); McNair v. State, 

(

) (2013); Banta v. State, 

 (2) (

)
(2007); Woods v. State, 

 (3) (

) (2005); Brown v. State,

 (2) (

) (2003) (quoting United States v. Lanier, 

 (II) (

, 137 LE2d 432) (1997)).
                                       13
whether to sentence a defendant to the greater or lesser offense

“should be resolved in the defendant’s favor.” State v. Hanna, 

 (2) (

) (2019) (citations and punctuation

omitted). However, it is important to recognize that “[t]he rule of

lenity is a rule of construction that is applied only when an

ambiguity still exists after having applied the traditional canons of

statutory construction.” 

 (2) (citation and punctuation

omitted).

     Smallwood’s rule of lenity argument is relatively simple –

because his conduct in entering the automobile and committing a

theft therein violates both OCGA § 16-8-18 and OCGA § 16-7-21 (b)

(1), he must be sentenced to misdemeanor criminal trespass under

the rule of lenity. OCGA § 16-7-21 (b) (1) provides:

          A person commits the offense of criminal trespass
     when he or she knowingly and without authority . . .
                (1) Enters upon the land or premises of another
     person or into any part of any vehicle, railroad car,
     aircraft, or watercraft of another person for an unlawful
     purpose[.]

In contrast, OCGA § 16-8-18 states that “[i]f any person shall enter


                                 14
any automobile or other motor vehicle with the intent to commit a

theft or a felony, he shall be guilty of a felony . . . .”

     Smallwood misapprehends the rule of lenity. As we have

explained, “that a single act may, as a factual matter, violate more

than one penal statute does not implicate the rule of lenity.” Banta,

 (2). After applying the traditional canons of statutory

construction to the statutes in this case, we conclude that Smallwood

was properly sentenced for the felony of entering an automobile.

When we construe the text of a statutory provision, we start with

the premise that “we must afford the statutory text its ‘plain and

ordinary meaning.’” Deal v. Coleman, 

 (1) (a) (

) (2013) (citation and punctuation omitted). Smallwood’s

conduct, as stipulated, falls under the plain and ordinary meaning

of both the entering-an-automobile and criminal-trespass statutes.

Cf. Banta, 

 (2) (concluding that the two statutes at

issue did not define the same offense); Gordon v. State, 

 (

) (2015) (holding that crimes of making a

false statement to law enforcement officers and falsely reporting a

                                     15
crime “provide different grades of punishment for the same criminal

conduct”).

     However, the canon of construction that a more specific statute

prevails over a general statute resolves any ambiguity between the

two statutes. “[W]here there is a specific and a general criminal

statute, the rule of lenity is not implicated, and a specific statute

will prevail over a general statute, absent any indication of a

contrary legislative intent.” State v. Nankervis, 

 (2)

(

) (2014) (citation and punctuation omitted). See also

Woods v. State, 

 (3) (

) (2005); Dixon

v. State, 

 (1) (

) (2004); Mann v. State, 

 (1) (

) (2001).

     The criminal trespass statute prohibits the knowing and

unauthorized entry into any one of six places, including a “vehicle,”

for any “unlawful purpose.” This Court has construed an unlawful

purpose as set out in the criminal trespass statute as “a purpose to

violate a criminal law.” Daniel v. State, 

 (III) (

) (2017) (citation and punctuation omitted). OCGA § 16-8-

                                 16
18, on the other hand, criminalizes entry into a vehicle “with the

intent to commit a theft or felony[.]” Because OCGA § 16-8-18

criminalizes the entry into an automobile or other motor vehicle and

only for the purpose of committing certain designated crimes, rather

than the more general “unlawful purpose,” Smallwood was properly

sentenced under the more specific OCGA § 16-8-18, and the rule of

lenity was not implicated.7 See Nankervis, 

 (2) (rule of

lenity did not require sentencing under general statute prohibiting

the manufacturing of any “controlled substance” rather than the

specific law criminalizing “trafficking methamphetamine”); Woods,

 (3) (statute criminalizing attempt to possess

marijuana with intent to distribute was more specific than the


      7 Smallwood argues that the criminal trespass statute is more specific

because it prohibits entry into a vehicle “without authority,” whereas OCGA §
16-8-18 is silent on this issue. However, we conclude that the “without
authority” language makes no difference to the analysis in this case because
Smallwood was charged with “unlawfully enter[ing] a Toyota Camry, a motor
vehicle, the property of [the victim], with the intent to commit a theft therein .
. . .” He then stipulated at trial that the owner had not given him permission
to enter the vehicle. Thus, the State treated the crime of entering an
automobile as if it included a “without authority” element such that the
primary substantive difference between the two statutes, as applied here, was
whether the entry was made with an unlawful purpose or with the intent to
commit a theft or felony.
                                       17
sentencing statute governing convictions for the offense of criminal

attempt to commit a felony); Dixon, 

 (1) (b) (specific

misdemeanor statutory rape provision applied over general child

molestation statute where the “legislature spoke very directly

towards specific conduct”); Mann, 

 (1) (specific

sentencing scheme for defendants convicted of possessing more than

one ounce of cocaine with intent to distribute applied over general

recidivist scheme). Accordingly, we affirm the judgment of the trial

court.

     Judgment affirmed. All the Justices concur, except Warren, J.,
not participating.



                   Decided November 16, 2020.

     OCGA § 16-8-18; constitutional questions. Paulding Superior
Court. Before Judge Beavers.
     Hunter J. Rodgers, Keegan C. Gary, for appellant.
     Dick R. Donovan, District Attorney, Elisabeth M. Giuliani,
Anthony B. Williams, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney
General, for appellee.



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