Johnson v. State

FINAL COPY

              S21G0673. JOHNSON v. THE STATE.


     WARREN, Justice.

     We granted certiorari in this case to address whether Ricky

Johnson’s convictions for theft by taking merge under the correct

unit-of-prosecution analysis. Because the Court of Appeals applied

the wrong legal analysis in evaluating whether Johnson’s theft-by-

taking convictions should have merged, we vacate its holding on that

issue and remand with direction to apply the correct analysis.

     1.   In 2013, Johnson was convicted of one count of burglary

(Count 1), three counts of theft by taking based on the theft of three

different Ford trucks (Counts 2, 3, and 4), and one count of theft by

taking based on the taking of multiple pieces of property, including,

among other things, a riding lawnmower, a plasma cutter, and a

welder (Count 5). The crimes occurred on November 1, 2007, in a

large building containing a shop and office space on the property of

Reid & Reid Contractors (the “company”). Of the three stolen trucks,
two were Ford flatbeds and one was a Ford service truck. One

flatbed truck was parked outside the company’s building; the other

was parked inside a garage in front of the building; and the service

truck was parked inside the shop. The thefts occurred overnight

during a span of time that lasted between five and six hours.

      The company had five surveillance cameras recording activity

in its building. A video from one of those cameras, which recorded

activity in the southwest corner of the shop, was introduced into

evidence at trial. That video first showed Johnson in the shop area

at 10:54 p.m. on October 31, 2007. It also showed that Johnson

appeared to leave the shop and the property after completing the

crimes at about 4:30 a.m.1

      Between those two times, Johnson could be seen in the camera

frame of the surveillance video that covered the southwest corner of

the shop except for a number of short periods of time, none of which


      1  The surveillance video was included in the trial court record. For
reasons that are not clear based on the record before this Court, the video was
not part of the Court of Appeals’s record. But because it was part of the original
trial court record, the Clerk’s Office of this Court requested and obtained the
video from the Clerk’s Office of the Forsyth County Superior Court.
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lasted more than 15 minutes. The video shows that Johnson spent

the first few hours in the shop walking back and forth with a

flashlight, examining company property and loading it onto a service

truck by hand and by using the company’s forklift. At 2:26 a.m., he

used the forklift to load a welder onto the service truck. At 3:28 a.m.,

he drove the service truck out of the shop bay and out of the camera

frame.    Johnson reappeared in the camera frame at 3:34 a.m.,

driving a different piece of equipment — a John Deere Gator — into

the shop.    Johnson parked the Gator inside the shop and then

walked out of the shop bay door. He is next seen on the video driving

one of the company’s flatbed trucks into the shop about 15 minutes

later, at 3:49 a.m.2 At that point, he parked the flatbed truck inside

the shop and began loading it with company property, including a

large lawnmower. He also attempted, unsuccessfully, to load the

Gator onto the flatbed truck. Around 4:30 a.m., he drove the flatbed

truck out of the shop bay. After that, Johnson walked back into the


      2 That period of time — the 15 minutes from 3:34 a.m. until 3:49 a.m. —

is the longest period of time that Johnson was not visible on the surveillance
video.
                                      3
shop and drove the Gator out of the shop at 4:34 a.m. He then

walked back into the shop again and drove the forklift out of the

shop at 4:36 a.m. Johnson is not seen on the video after 4:36 a.m.

     Ultimately, both the service truck and the flatbed truck that

Johnson drove out of the shop bay were stolen, as was an additional

flatbed truck that does not appear in the surveillance video. In

addition, a riding lawnmower, a plasma cutter, a toolbox, and a

welder (among other property) were stolen that night. Neither the

Gator nor the forklift was stolen.

     As it turns out, the three stolen trucks were equipped with GPS

trackers, and the trucks — along with the stolen equipment — were

located later on the morning of November 1 in a wooded area behind

a residence about 10 miles from the shop.       At trial, the State

presented (among other evidence) the surveillance video described

above, as well as evidence that Johnson’s palm print was found on

the forklift that was still parked outside the company’s shop. Part

of the State’s theory of the case was that Johnson must have had an

accomplice; to that end, the prosecutor argued that, considering the

                                     4
amount of time Johnson was in the shop, along with the 10-mile

distance between the shop and the property where the stolen trucks

were transported and parked, it was “obvious[ ] somebody helped

[Johnson].” The prosecutor also argued that because Johnson was a

party to the crimes of theft by taking of the trucks, the State did not

“have to prove that [Johnson himself] drove a truck” away from the

company property for the jury to find Johnson guilty of theft by

taking of all three trucks. Johnson was found guilty on all counts

and sentenced to a total of 40 years in prison: 20 years on the

burglary count; 10 consecutive years each on Counts 2 and 3; and 10

concurrent years on Counts 4 and 5.

     2.    Johnson appealed pro se. The Court of Appeals affirmed

in an unpublished opinion, rejecting, among other things, Johnson’s

contention that two of his three theft-by-taking convictions for the

theft of the trucks should have merged.3 See Johnson v. State, 357




     3  On certiorari, Johnson expands the scope of his merger claim,
contending that three of the four theft-by-taking convictions should have
merged, including the conviction for Count 5, which involved the non-truck
property.
                                    5
Ga. App. XXV (Case No. A20A0996) (Nov. 2, 2020). In reaching that

conclusion, the Court of Appeals evaluated Johnson’s merger claim

using the “actual evidence” test from Braswell v. State, 

 (

) (2000). See Johnson, slip op. at 15. Under

that test, “‘[t]he key question in determining whether a merger has

occurred is whether the different offenses are proven with the same

facts.’” 

 (quoting Braswell, 

). According to the

Court of Appeals, “the evidence showed that one person — Johnson

— stole multiple trucks. Thus, Johnson necessarily had to complete

the theft of each truck prior to stealing the others.” 

 The court

then concluded that Johnson’s theft offenses did not merge,

necessarily concluding that the theft-by-taking offenses were not

proven with the same facts for purposes of the “actual evidence” test

it had applied. 

 Johnson petitioned for a writ of certiorari, which

we granted.4


      4 Johnson    proceeded pro se both in the Court of Appeals and in the
petition for certiorari that he filed in this Court. After we granted certiorari,
Johnson agreed to be represented by the Appellate Litigation Clinic of the
University of Georgia School of Law. However, shortly after the Clinic filed its

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     3. “‘Merger’ refers generally to situations in which a defendant

is prosecuted for and determined by trial or plea to be guilty of

multiple criminal charges but then, as a matter of substantive

double jeopardy law, can be punished — convicted and sentenced —

for only one of those crimes.” Scott v. State, 

 (

) (2019).       Substantive double jeopardy law protects a

defendant from multiple punishments when his crimes arise from

the same conduct. See generally OCGA § 16-1-7 (a) (1) (providing

that “[w]hen the same conduct of an accused may establish the

commission of more than one crime, the accused may be prosecuted

for each crime[,]” but “[h]e may not . . . be convicted of more than one

crime” if, among other things, “[o]ne crime is included in the other”);

Neuman v. State, 

 (

) (2021) (explaining

that substantive double jeopardy “protects against multiple



opening brief on his behalf, Johnson contacted the lead counsel and asked him
to withdraw. Counsel then filed a motion to withdraw, which we granted. At
the same time, we also granted permission for the Clinic to file an amicus
curiae reply brief in support of Johnson, which it did. We thank Thomas V.
Burch, Director of the Clinic, and his students, Courtney Hogan and Kirstiana
Perryman, for their service.

                                     7
convictions or punishments” for crimes “arising from the same

conduct”) (citation and punctuation omitted).5

      “Merger analysis often involves counts charging two different

crimes.” Scott, 

 (emphasis in original).                    When

convictions for two different crimes are the subject of a merger

analysis, courts evaluate the merger claim using the “required

evidence” test. See Drinkard v. Walker, 

 (

) (2006);6 Dukes v. State, 

 (

)

(2021) (“Merger analysis often involves counts charging two

different crimes. As this Court has made clear, that is the context

in which Drinkard’s ‘required evidence’ test is applied.”) (citation

and punctuation omitted; emphasis in original). But the “required

evidence” test does not govern a merger analysis where, as here, a


      5 “Because the Georgia Code expands the proscription of double jeopardy

beyond that provided for in the United States and Georgia Constitutions, all
questions of double jeopardy in Georgia must now be determined under OCGA
§§ 16-1-6 through 16-1-8.” Maxwell v. State, 

 (

)
(2021) (citation and punctuation omitted).
      6 We previously used the “actual evidence” test to evaluate merger claims

involving multiple counts for different crimes, but this Court overruled the case
that adopted that test, as well as its progeny, in 2006. See Drinkard, 

.
                                       8
defendant claims that he has been improperly convicted and

sentenced for multiple counts of the same crime. See Smith v. State,

, 772-773 n.4 (

) (2012) (explaining that “the

‘required evidence’ test only applies where the same act or

transaction constitutes a violation of two distinct statutory

provisions” and that “[b]ecause the instant case does not involve two

distinct statutory provisions, the ‘required evidence’ test does not

apply”) (citation and punctuation omitted; emphasis in original).

     The Court of Appeals’s merger analysis was therefore

erroneous in two respects. First, it erred by relying on Braswell and

using the long-overruled “actual evidence” test to evaluate Johnson’s

merger claims. See Braswell, 

 (applying the

“actual evidence” test). And second, it used the wrong type of merger

analysis when it applied a test that governs merger for multiple

counts of different crimes instead of multiple counts of the same

crime — the latter being the type of merger claim Johnson presented

below with respect to his convictions for theft by taking.

     4.   When a defendant enumerates a merger error after being

                                  9
convicted of multiple counts of the same crime, the correct merger

analysis requires courts to ask whether those crimes arose from “a

single course of conduct” and, if so, whether the defendant can face

multiple convictions and sentences under a unit-of-prosecution

analysis. Edvalson v. State, 

 (

) (2020)

(punctuation omitted) (quoting Coates v. State, 

 (

) (2018)). “‘Whether offenses merge is a legal question,

which [an appellate court] review[s] de novo.’” Womac v. State, 

 (

) (2017) (citation omitted).

     “As we have said numerous times, the text of the statute itself

best reflects th[e] legislative choice” of “[w]hether a particular course

of conduct involves one or more distinct ‘offenses’ under the statute.”

Coates, 

 (citation and punctuation omitted).            In

Edvalson, for example, we concluded that the unit of prosecution

under OCGA § 16-12-100 (b) (5) for the sexual exploitation of

children was “the possession of any prohibited ‘visual medium’ at

all, whether one or one hundred” of such medium. 

.

Likewise, in Coates, we concluded that the appropriate unit of

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prosecution for a charge of possession of a firearm by a convicted

felon under OCGA § 16-11-131 (b) was the “general receipt,

possession, or transportation of firearms by convicted felons, rather

than the specific quantity of firearms received, possessed, or

transported” and that the statute “is unambiguous and permits only

one prosecution and conviction for the simultaneous possession of

multiple firearms.” 

. By contrast, in Smith, 

, we held that “the act of fleeing from an

individual police vehicle or police officer after being given a proper

visual or audible signal to stop . . . , and not just the act of fleeing

itself, . . . forms the proper ‘unit of prosecution,’” and rejected the

defendant’s claim that five separate counts of attempting to elude a

police officer should have merged.

     Georgia’s appellate courts have also explained that part of a

course-of-conduct evaluation may involve examining whether the

defendant acted with the same or differing intents, whether the

crimes occurred at the same place, and whether the crimes occurred

at the same time or were separated by some meaningful interval of

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time. For example, in Spears v. State, 

 (

)

(2015), disapproved of on other grounds by Willis v. State, 

 (

) (2018), we held that the defendant had engaged

in two separate courses of conduct and could be convicted of two

burglaries where the evidence showed that

     he made one entry of [the victim’s] house with the dual
     intent to commit a theft and to murder her but that he
     then left the victim’s house, drove to a church, returned
     to the house after realizing that he had failed to steal the
     victim’s cigarette case containing money, and reentered
     the house with the intent to commit the theft of the
     cigarette case and money.

Id. at 601-602. The Court of Appeals examined similar factors but

reached the opposite conclusion in Lucas v. State, 

(

) (2014), holding that the defendant’s “acts of

entering, exiting, and reentering the same restaurant twice within

a five to twenty-minute period for the purpose of committing theft”

could not be punished as two separate burglaries because, among

other things, “the acts were committed at the same location, were

inspired by the same criminal intent (to commit theft in the . . .

restaurant building),” “were part of a continuous criminal act

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spanning a matter of minutes,” and were not “separated by a

meaningful interval of time or with distinct intentions.”7 

 at 743-

744 (citation and punctuation omitted). See also, e.g., Lowe v. State,

 (1876) (holding that “[a]n indictment for simple

larceny in stealing two hogs at the same time and place, though

alleging that one is the property of one person, and the other of

another, covers but one transaction, and charges but one offense”);

Ingram v. State, 

 (

) (2005) (holding that

an aggravated assault conviction and a conviction for murder were

“part of a continuous criminal act” where they were “committed at

the same time and place and inspired by the same criminal intent”).8



      7 In the same vein, we have said that to determine whether a defendant’s

crimes arise from the “same conduct” for purposes of statutory procedural
double jeopardy under OCGA § 16-1-7 (b), courts should consider whether the
crimes “arise from the same transaction or continuing course of conduct, occur
at the same scene, occur on the same date, and occur without a break in the
action.” Maxwell, 311 Ga. at 679 (citation and punctuation omitted).

      8 We note that in Edvalson, in concluding 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’” depicting a minor
engaged in sexually explicit conduct, we cautioned that because the case
concerned “only . . . simultaneous possession,” we expressed no opinion
“regarding cases involving the possession of different visual media in separate

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      Here, by invoking an overruled and inapplicable merger test,

the Court of Appeals failed to engage with the relevant case law that

governs merger claims pertaining to multiple convictions for the

same crime.      As a result, it did not evaluate whether Johnson

engaged in a single course of conduct on the night of the thefts, and,

if applicable, what the unit of prosecution would be for theft by

taking under OCGA § 16-8-2.            “[I]t is important to conduct the

applicable analysis, and it is appropriate for the Court of Appeals to

do it in the first instance.” Scott, 

 (describing acts of

child molestation “alleged in different counts [as] part of a single

course of conduct occurring in a relatively short time frame,” holding

that the Court of Appeals “failed to engage in the applicable unit-of-

prosecution analysis,” and remanding for that court to apply the

correct analysis). We therefore vacate the Court of Appeals’s holding



places or at separate times,” thus intimating that such factors might affect a
course-of-conduct analysis if presented in a different case. See 

 (emphasis supplied). We reserved this same question in Coates, explaining
that “[b]ecause 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.” 304 Ga. at 332,
n.3.
                                      14
regarding the merger of Johnson’s theft-by-taking convictions and

remand the case to the Court of Appeals for it to apply the

appropriate legal analysis, consistent with this opinion.

     Judgment vacated and case remanded with direction. All the
Justices concur, except Boggs, P. J., disqualified.




 Decided January 19, 2022 – Reconsideration dismissed February

                               15, 2022.

     Certiorari to the Court of Appeals of Georgia – 357 Ga. App.

XXV.

     Ricky J. Johnson, pro se.

     Penny A. Penn, District Attorney, James A. Dunn, Assistant

District Attorney, for appellee.

     Thomas V. Burch, Courtney Hogan, Kirstiana Perryman, amici

curiae.




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