Edvalson v. State

FINAL COPY

               S19G1516. EDVALSON v. THE STATE.


      BOGGS, Justice.

      A jury found Thomas Edvalson guilty of 22 counts of sexual

exploitation of children, OCGA § 16-12-100 (2003),1 for possession of

11 digital images depicting a minor engaged in sexually explicit

conduct.2 With respect to each digital image, he was found guilty of

both possession under OCGA § 16-12-100 (b) (8)3 and possession

with intent to distribute under OCGA § 16-12-100 (b) (5).4 At

sentencing, the trial court merged the “simple” possession counts




      1 Because the crimes occurred in 2012, the 2003 version of this statute

applies, but later amendments did not change the language at issue here.
      2 “Edvalson owned and maintained a child pornography website called

Cruels.net, and the images of child sexual abuse were found on electronic
drives and computers located at his Gwinnett County residence.” Edvalson v.
State (Case No. A19A0442), 351 Ga. App. XXIV (June 28, 2019) (unpublished).
      3 “It is unlawful for any person knowingly to possess or control any

material which depicts a minor or a portion of a minor’s body engaged in any
sexually explicit conduct.”
      4 “It is unlawful for any person knowingly to create, reproduce, publish,

promote, sell, distribute, give, exhibit, or possess with intent to sell or
distribute any visual medium which depicts a minor or a portion of a minor’s
body engaged in any sexually explicit conduct.”
under paragraph (b) (8) into the counts of possession with intent to

distribute under paragraph (b) (5), and sentenced Edvalson on the

remaining 11 counts to a total of 60 years, with 19 to be served in

prison. Edvalson appealed, asserting, among other enumerations of

error, that the trial court erred in failing to merge his convictions

into a single count. The Court of Appeals affirmed in an unpublished

opinion, concluding that OCGA § 16-12-100 (b) (5) permits a

defendant to be separately convicted and sentenced for each of the

images in his possession. See Edvalson v. State (Case No.

A19A0442), 351 Ga. App. XXIV (June 28, 2019) (unpublished).

     We granted certiorari to consider whether the Court of Appeals

erred in failing to merge the remaining 11 convictions under OCGA

§ 16-12-100 (b) (5) into a single conviction. In accordance with our

reasoning in Coates v. State, 

 (

) (2018),

we conclude that the plain language of OCGA § 16-12-100 (b) (5),

interpreted in the context of the entire statute, is unambiguous and

permits only one prosecution and conviction for a single act of

possession of child pornography, regardless of the number of images
depicted therein.5 We therefore reverse the judgment of the Court of

Appeals 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. 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. As we have said
     numerous times, the text of the statute itself best reflects
     that legislative choice.

(Citations and punctuation omitted.) Coates, 

.

     In Coates, we granted certiorari in order to consider the

appropriate unit of prosecution for a charge of possession of a

firearm by a convicted felon under OCGA § 16-11-131 (b) (2014):

“Any person . . . who has been convicted of a felony by a court of this

state . . . and who receives, possesses, or transports any firearm

commits a felony and, upon conviction thereof, shall be imprisoned

for not less than one nor more than five years[.]” While executing a



     5 The State concedes that the Court of Appeals erred in this regard.
search warrant, the police found four firearms in Coates’ residence.

Coates was convicted and sentenced on four separate counts of

possession of a firearm by a convicted felon, and the Court of Appeals

affirmed, concluding that the term “any firearm” found in OCGA §

16-11-131 (b) “was intended by the legislature to refer to a single

firearm rather than multiple firearms.” Coates v. State, 

 (

) (2017).

     On certiorari, this Court reversed on the basis of well-

established rules of statutory construction: “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,” to “effectuate the intent of the Georgia

legislature,” and to “consider the entire scheme of the statute and

attempt to gather the legislative intent from the statute as a whole.”

(Citations and punctuation omitted.) Coates, 

. Finally,

a criminal statute must be construed strictly against the State, see

, and “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.” (Citations and punctuation

omitted.) 

 at 332 n.4.

     In applying these rules of construction, this Court focused its

analysis of the statute in Coates on the interplay between the term

“any firearm” in OCGA § 16-11-131 (b) and the definition of

“firearm” in OCGA § 16-11-131 (a) (2):

     Looking 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.

(Emphasis in original.) Coates, 

. As a result, we
concluded that in OCGA § 16-11-131 (b), “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,” and therefore the

statute unambiguously permits only one conviction for simultaneous

possession of any number of firearms. Id. at 331-332. Coates’

multiple convictions were vacated and the case remanded for

resentencing. Id. at 332.

     Here, the analysis of OCGA § 16-12-100 (b) (5), in its statutory

context, yields a similar result. That subsection provides:

          It is unlawful for any person knowingly to create,
     reproduce, publish, promote, sell, distribute, give, exhibit,
     or possess with intent to sell or distribute any visual
     medium which depicts a minor or a portion of a minor’s
     body engaged in any sexually explicit conduct.

(Emphasis supplied.) In interpreting this Code section, the Court of

Appeals did not read paragraph (b) (5) “concomitantly with the

remainder of the statute so as to avoid rendering any portion of the

statute meaningless,” Coates, 

, but observed only that

“[t]he legislature’s frequent use of the word ‘any’ throughout the
statute suggests a lack of restriction or limitation with respect to the

statute’s intended scope.” (Citations and punctuation omitted.)

Edvalson, slip op. at 10-11.6

      This reading was incorrect, as it did not take into account the

multiple meanings of the word “any” in the statute construed as a

whole. A proper analysis produces a result similar to that reached

in Coates. Here, the term “any visual medium” in OCGA § 16-12-100

(b) (5) must be read in light of the definition provided by the General

Assembly in OCGA § 16-12-100 (a) (5): “‘Visual medium’ means any

film, photograph, negative, slide, magazine, or other visual



      6   In its unpublished opinion, the Court of Appeals rejected the
application of this Court’s decision in Coates and instead relied heavily on its
own decision in State v. Williams, 

 (

) (2018).
That reliance was not well-founded. While the Court of Appeals in Williams
addressed a unit-of-prosecution issue, it was with reference to another
paragraph of the statute, OCGA § 16-12-100 (b) (8), containing different
language from that found in paragraph (b) (5). Moreover, this Court granted
certiorari and, in Williams v. State, 

 (

) (2020), held
that Williams’ claim was premature at the pretrial stage of the proceedings.
While this Court affirmed the judgment of the Court of Appeals, it did so on
that alternative ground, specifically noting, “Because we conclude that this
difficult question is not yet ripe for resolution in this case, we have no occasion
to answer it today. The Court of Appeals also should not have attempted to
resolve the question, and its opinion in this case should not be relied on as
precedent.” 

 (2) n.10.
medium.” (Emphasis supplied.) Accordingly, “any visual medium” in

paragraph (b) (5) cannot refer to the qualitative sense of “any,” as

that meaning is provided by the definition in paragraph (a) (1).

Instead, “any” in the phrase “any visual medium” must be

interpreted as a quantitative term, implying no specific quantity

and having no limit. As in Coates, the offense is the possession of

any prohibited “visual medium” at all, whether one or one hundred.7

Accordingly, we conclude that OCGA § 16-12-100 (b) (5) is

unambiguous and permits only one prosecution and conviction for

the simultaneous possession of multiple items of “visual media.”8

      For these reasons, the Court of Appeals erred. Accordingly, we




      7 This conclusion is bolstered by the fact that a single film, magazine, or

“other visual medium” such as a book or website could contain hundreds or
even thousands of “photographs” or images, also included within the definition
of “visual medium” in OCGA § 16-12-100 (a) (5). Indeed, the police testified
that over 900 digital images were recovered in a forensic examination of
Edvalson’s computers and other devices.
       8 As we similarly observed in Coates, because this case concerns only the

simultaneous possession of multiple “visual media,” we state no opinion
regarding cases involving the possession of different visual media in separate
places or at separate times. See Coates, 

 n.3. Nor, despite the
State’s urging, do we state an opinion regarding whether this decision should
be applied retroactively to other cases. We need not address that question to
decide this case.
reverse the Court of Appeals’ decision and remand this case for the

Court of Appeals to vacate Edvalson’s convictions and sentences for

the 11 counts under OCGA § 16-12-100 (b) (5) and to return the case

to the trial court for resentencing consistent with our opinion.

     Judgment reversed and case remanded with direction. All the
Justices concur, except Peterson, Ellington, and McMillian, JJ.,
disqualified, and Warren, J., not participating.




                   Decided September 29, 2020.

     Certiorari to the Court of Appeals of Georgia – 351 Ga. App.
XXIV.
     Pate & Johnson, Page A. Pate, Jess B. Johnson, for appellant.
     Daniel J. Porter, District Attorney, Samuel R. d’Entremont,
Christopher A. George, Assistant District Attorneys, for appellee.