Daniel Ray Metcalf v. State ( 2019 )

SECOND DIVISION
MILLER, P. J.,
BROWN and GOSS, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 13, 2019
In the Court of Appeals of Georgia
A18A1647. METCALF v. THE STATE.
BROWN, Judge.
Daniel Metcalf appeals from his convictions of two counts of criminal attempt
to commit aggravated sodomy, three counts of criminal attempt to commit aggravated
child molestation, and two counts of computer pornography. He contends that the trial
court erred by (1) concluding that he made a knowing and voluntary waiver of his
Miranda rights and (2) merging his criminal attempt to commit aggravated sodomy
into his criminal attempt to commit aggravated child molestation instead of the other
way around. For the reasons explained below, we affirm.
The record shows that Metcalf was arrested following a police operation
commonly referred to as “to catch a predator.” A police detective assigned to a
special task force investigating crimes against children on the Internet created a
fictional profile on an online gay male dating site with a screen name of
“twistedperv_ATLr/tperv.” Metcalf responded to the detective’s profile, and the two
began corresponding by email. During these conversations, Metcalf and the detective
engaged in graphic discussions about meeting in person to have anal and oral sex
with 12-year-old and 5-year-old brothers. The detective stated in an email that the
brothers were his girlfriend’s children whom he already had sexually molested. The
girlfriend and children referenced in the detective’s emails were fictional. When
Metcalf arrived at the prearranged meeting place, he was arrested.
1. Metcalf asserts that the trial court erred in ruling that he made a knowing and
voluntary waiver of his Miranda rights. We disagree.
Whether a defendant waives his rights under Miranda and makes a
voluntary and knowing statement depends on the totality of the
circumstances. In ruling on the admissibility of an in-custody statement,
a trial court must determine whether a preponderance of the evidence
demonstrates that the statement was made freely and voluntarily. Unless
clearly erroneous, we accept the trial court’s factual findings and
credibility determinations relating to the admissibility of the defendant’s
statement. When controlling facts discernible from a videotape are not
disputed, our standard of review is de novo.
2
(Citation, punctuation and footnote omitted.) Francis v. State, 296 Ga. 190, 194 (3)
(766 SE2d 52) (2014). Additionally, we “may consider all the evidence of record, in
addition to the evidence adduced at the Jackson-Denno hearing, in determining the
admissibility of a defendant’s statement.” (Citations and footnote omitted.) Id. at 194-
195 (3).
In this case, the record shows that following his arrest, Metcalf was taken to
an interrogation room where his interview with police was video-recorded.1 The video
begins with Metcalf sitting alone for approximately three minutes. When the detective
enters the room, he grants Metcalf’s request to use the bathroom, and they both exit
the room. Metcalf returns less than two minutes later, and an off-screen officer asks
general questions relating to his education and military background. When the
detective comes into the room approximately 30 seconds later, he says nothing to
Metcalf, sits down, and begins completing a form attached to a clipboard. After filling
out a portion of the form, he asks for Metcalf’s social security number and
information about his education and ability to read and write. After establishing that
Metcalf had just begun graduate school to study business, the detective began
1
This video was admitted into evidence at trial.
3
explaining Metcalf’s Miranda rights as follows, while holding and reading a form on
a clipboard:
Because you have been placed into custody, anytime we talk to
somebody, we have to go over their rights. I’m sure you’ve seen it on
TV. Just to let you know what your rights are, okay? That’s what this is.
Before we ask you any questions, you must understand your rights. You
have the right to remain silent. Anything you say can be used against
you in a court of law. You have the right to talk to a lawyer for advice
before we ask you any questions, and to have him or her with you during
questioning. If you cannot afford a lawyer, one will be appointed for you
before any questioning if you wish. If you decide to answer questions
now without the lawyer present, you’ll still have the right to stop
answering at any time. You also have the right to stop answering at any
time until you talk to a lawyer. That’s probably the most important part.
If you start talking and you decide you don’t want to talk anymore, you
can quit at any time. Now the next is my waiver of rights. I’ve read this
waiver of my rights and I understand what my rights are. I’m willing to
make a statement and answer questions. I do not want a lawyer at this
time. I understand and know what I’m doing. No promises or threats
have been made to me and no pressure or coercion of any kind has been
used against me.
The detective held the form halfway between himself and Metcalf so that Metcalf had
the opportunity to follow along as the detective read from it.
4
When the detective finished reading the form, he started to hand the clipboard
and a pen to Metcalf, who asked, “Can I ask what happens after you guys interview
me?” The detective and the off-screen officer in the room explained that the amount
of the bond and the length of time he might be incarcerated would be up to a judge.
After this explanation, Metcalf states, “I just want to know before I sign anything,
because I don’t know how everything works.” The off-screen officer then states,
“That’s fine. We’ll be happy to answer your questions here.” Metcalf then expresses
concern that he would need numbers in his phone to call someone to make bond. The
detective states they would let Metcalf look at numbers on his phone.
After a momentary pause, the detective then holds out the form and a pen and
states, “If you want to talk with us about this, I just need you to sign right there.”
Metcalf then reaches out with both hands, takes the form and the pen, states, “I mean
I [unintelligible]” and begins signing the form. After Metcalf has started signing the
form, the off-screen officer states: “By signing that, you’re not saying you’re guilty
or anything else. It’s just merely saying that you’re willing to talk to us in here
today.” It is clear from the video that Metcalf did not stop signing the waiver while
these words were spoken, and he did not even look up while the officer was speaking.
His only response, while still signing the form, was that he wanted to try to go to
5
school the following week. He then handed the form back to the detective, and his
interview began.
Relying upon State v. Darby, 284 Ga. 271 (663 SE2d 10) (2008), Metcalf filed
a motion to suppress his statements in the police station because the detective told
him that he needed to sign the form if he wanted to talk with the police. After the jury
was selected and sworn, the trial court conducted a Jackson-Denno hearing outside
of their presence. The detective testified that he informed Metcalf of his rights before
questioning him, that Metcalf had no questions specific to these rights, and never
invoked any of these rights during the interview. He also denied making any threats
or promises of benefit to Metcalf. At the conclusion of the hearing, Metcalf’s counsel
asserted that his statements in the interview should be suppressed based upon the
statement that Metcalf had to sign the waiver in order to speak with the officer, as
well as the statement that the form merely said he was willing to speak with them.
After hearing argument from the State, the trial court ruled from the bench stating:
I’ll find on the date of the interview . . . the defendant was fully advised
of his rights under the Miranda decision, voluntarily waived those rights
and spoke to the officers. He was not threatened in any way or coerced.
He was not promised anything to entice him to waive his rights. He was
not under the influence of any drugs or alcohol to the extent he could not
6
understand and knowingly waive those rights. He didn’t ask for a lawyer
and I will allow the jury to hear the statement.
Following the jury’s guilty verdict, Metcalf filed a motion for new trial. After
a hearing on that motion, a new trial judge, who did not preside over the trial, issued
an order denying the motion for new trial based upon its finding “that there is
insufficient evidence to set aside the factual findings of the trial court that the
Defendant understood his Miranda rights and knowingly, voluntarily and intelligently
waived them.”
In this case, we conclude that the controlling facts are discernible from the
video and support the trial court’s finding that Metcalf made a knowing and voluntary
waiver of his Miranda rights. The officer read all of the appropriate rights to Metcalf,
and Metcalf, a college graduate, signed the form without expressing any lack of
understanding of his rights.
The Supreme Court of Georgia’s opinions in Darby, supra, 284 Ga. at 271, and
Benton v. State, 302 Ga. 570 (807 SE2d 450) (2017), upon which Metcalf relies, do
not require a different result. In Darby, the trial court granted the defendant’s motion
to suppress because the police officers told the defendant, who made a spontaneous
statement after invoking his right to counsel following a reading of his Miranda
7
rights, that he had to sign a waiver in order to tell them his side of the story. 284 Ga.
at 271-272 (1). The Supreme Court of Georgia held that the officer’s statement “was
erroneous because a suspect can always make a spontaneous, voluntary statement
which would be admissible at trial.” 284 Ga. at 272 (1). Accordingly, “[t]he trial court
was authorized to find that [the defendant] did not knowingly and intelligently waive
his Sixth Amendment right by executing the Miranda waiver, because he signed that
document only after receiving the erroneous information that it was a precondition
to telling his side of the story.” (Punctuation omitted.) Id.
In Francis, supra, the Supreme Court of Georgia affirmed a trial court’s denial
of a motion to suppress where a defendant was told to sign a waiver form “if you’d
like to speak with me.” 296 Ga. at 195-196 (3) (A). It distinguished its opinion in
Darby, by pointing out that in Francis, the defendant “did not make a spontaneous
statement or indicate that he wanted to do so.” Id. at 195 (3). As that is also the case
here, we find that Darby does not control.2
2
We are not persuaded by Metcalf’s attempt to distinguish Francis on the
ground that the officer in Francis confirmed that the defendant understood his rights
before questioning him. The absence of that fact in this case does not mandate the
conclusion that Metcalf could not have made a knowing waiver of his Miranda rights.
In our view, the lack of any attempt to make a spontaneous statement in both Francis
and the case now before us is more important.
8
In Benton, supra, the Supreme Court of Georgia conducted a de novo review
of a videotaped police interview and reversed the trial court’s denial of a motion to
suppress. In that case, the defendant “was kicked out of school in the ninth grade and
. . . could read, but not that much.” (Punctuation omitted.) 302 Ga. at 573 (2). When
the officer asked the defendant to explain what the officer had just read to him
regarding Miranda, it was very clear that he lacked an understanding of his rights. Id.
When the officer attempted to explain the rights in simpler terms, he omitted three of
the four Miranda warnings. Id. at 475 (2). The Supreme Court held that
a person must understand his rights in order to knowingly and
intelligently waive them. . . . Here, the record clearly demonstrates that
[the defendant] did not understand the Miranda warnings as initially
read to him. . . . Because the interrogating officer’s subsequent
explanation of those warnings was incomplete, we cannot say that [the
defendant] knowingly and intelligently waived his rights under
Miranda.
Id. at 575 (2).
In this case, unlike Benton, there is no evidence that Metcalf, a college
graduate, did not understand his Miranda rights. Moreover, it is clear from the video
that he already had made his decision to sign the waiver form before the off-screen
officer made a misstatement about the effect of the form. Indeed, he continued
9
signing it as the officer spoke. Based upon the facts and circumstances of this case,
and in particular our de novo review of the video, we cannot say that the trial court
erred by finding that Metcalf made a knowing and voluntary waiver of his Miranda
rights.
2. Metcalf asserts that the trial court should have merged his attempted
aggravated child molestation convictions relating to the five-year-old fictional child
into his attempted aggravated sodomy convictions relating to the same child rather
than vice versa. We disagree.
10
(a) Statutory Provisions. Two statutory provisions govern merger in Georgia.3
Pursuant to OCGA § 16-1-7 (a), an accused may not be convicted of more than one
crime arising out of the same criminal conduct where
(1) One crime is included in the other; or
3
“Prior to the adoption of [these statutory provisions in] the 1968 Georgia
Criminal Code, [merger] questions were determined under the double jeopardy
proscriptions of the United States Constitution and the Georgia Constitution.” State
v. Estevez, 232 Ga. 316 (1) (206 SE2d 475) (1974), overruled on other grounds,
Drinkard v. Walker, 281 Ga. 211, 217 (636 SE2d 530) (2006). In Estevez, the Georgia
Supreme Court concluded that Georgia’s statutory bar to successive prosecutions and
multiple convictions for the same conduct is more expansive than the constitutional
proscription of double jeopardy. 232 Ga. at 317 (1).
The Georgia Supreme Court examined the new statutory provisions and
explained that they “establish alternative rules for determining when one crime is
included in another as a matter of fact or as a matter of law so as to bar conviction
and punishment for more than one crime.” (Emphasis in original.) Estevez, 232 Ga.
at 319 (1). Its reference to inclusion as a matter of fact or a matter of law had meaning
at the time because Georgia common law applied the “same-transaction test” to
determine that an accused could not be punished for multiple crimes “if they were the
same as a matter of fact and a matter of law.” (Emphasis in original.) Id. See
generally Harris v. State, 193 Ga. 109, 117 (175 SE2d 573) (1941). Since Estevez,
Georgia courts have continued to make short-hand references to crimes being
included in one another as a “matter of fact” or a “matter of law,” despite the lack of
any statutory text describing merger in these terms. See, e. g., Smith v. State, 298 Ga.
406, 416 (4) (782 SE2d 269) (2016); Cordero v. State, 296 Ga. 703, 710 (3) (770
SE2d 577) (2015) (stating “we adopted the ‘required evidence’ test for determining
whether one crime is ‘included in’ another under OCGA § 16-1-6 (1) and therefore
merges as a matter of fact”).
11
(2) The crimes differ only in that one is defined to prohibit a designated
kind of conduct generally and the other to prohibit a specific instance of
such conduct.
(Emphasis supplied.) A crime is included in the other when:
(1) It is established by proof of the same or less than all the facts or a
less culpable mental state than is required to establish the commission
of the crime charged; or
(2) It differs from the crime charged only in the respect that a less
serious injury or risk of injury to the same person, property, or public
interest or a lesser kind of culpability suffices to establish its
commission.
(Emphasis supplied.) OCGA § 16-1-6. As the Supreme Court recognized in State v.
Estevez, 232 Ga. 316 (206 SE2d 475) (1974), overruled on other grounds, Drinkard
v. Walker, 281 Ga. 211, 217 (636 SE2d 530) (2006), issues of merger are decided
under these statutes. Id. at 317 (1). “Whether offenses merge is a legal question,
which we review de novo.” (Citation and punctuation omitted.) Regent v. State, 299
Ga. 172, 174 (787 SE2d 217) (2016).
12
With regard to OCGA § 16-1-6 (1), “the ‘required evidence test’4 is utilized to
determine whether multiple convictions are precluded because one of the crimes was
established by proof of the same or less than all the facts that were required to
establish the other crime.” (Citation and punctuation omitted.) Regent, supra, 299 Ga.
at 175. The other statutory provisions regarding merger “resolve potential gaps in the
. . . ‘required evidence’ analysis which otherwise might support multiple convictions
for closely related offenses where multiple convictions are unwarranted.” (Citation
omitted.) Id. The Supreme Court of Georgia recently explained the interrelationship
between the required evidence test and other statutory provisions regarding lesser
included offenses as follows: “Where . . . each offense requires an element of proof
4
In Drinkard, supra, 281 Ga. at 211, the Georgia Supreme Court “rejected the
‘actual evidence’ test for determining whether a lesser crime was included in a greater
crime and instead adopted the ‘required evidence’ test articulated in Blockburger v.
United States, 284 U.S. 299, 304 (52 SCt 180, 76 LE 306) (1932).” Smith v. State,
290 Ga. 768, 772 (3), n.4 (723 SE2d 915) (2012). Under the former “actual evidence”
test, “a lesser crime [was] included in a greater crime if the evidence actually
presented at trial to establish the elements of the crime charged also establishe[d] all
the elements of the lesser crime.” (Citation and punctuation omitted.) Drinkard, 281
Ga. at 214. When applying the former “actual evidence” test, our courts sometimes
stated the test in terms of whether evidence was “used up” to prove one charge. See,
e. g., Garrett v. State, 263 Ga. 131, 132-133 (3) (429 SE2d 515) (1993). Whether a
single act was necessary to prove a crime also was examined when applying the
“actual evidence” test. See, e. g., Johnson v. State, 276 Ga. 57, 58-59 (1) (573 SE2d
362) (2002); Heidler v. State, 273 Ga. 54, 64 (15) (537 SE2d 44) (2000); Hawkins v.
State, 262 Ga. 193, 194 (3) (b) (415 SE2d 636) (1992).
13
beyond the degree of injury or culpability that the other does not, neither of the
offenses is included in the other, and the crimes do not merge under OCGA §§ 16-1-7
(a) (1) [and] 16-1-6.” Norris v. State, 302 Ga. 802, 805 (III) (809 SE2d 752) (2018).5
(b) Charges at Issue. With regard to the crimes at issue here, “[a] person
commits the offense of aggravated sodomy when he or she commits sodomy with
force and against the will of the other person or when he or she commits sodomy with
a person who is less than ten years of age.” (Emphasis supplied.) OCGA § 16-6-2 (a)
(2) (2010). “A person commits the offense of sodomy when he or she performs or
submits to any sexual act involving the sex organs of one person and the mouth or
anus of another.” OCGA § 16-6-2 (a) (1) (2010).
“A person commits the offense of aggravated child molestation when such
person commits an offense of child molestation which act physically injures the child
or involves an act of sodomy.” (Emphasis supplied.) OCGA § 16-6-4 (c) (2010).
Child molestation is defined, in relevant part, as “any immoral or indecent act to or
in the presence of or with any child under the age of 16 years with the intent to arouse
5
The Supreme Court of Georgia did not address OCGA § 16-1-7 (a) (2)
(general/specific conduct) as a potential ground for merger in its opinion.
14
or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1)
(2010).
In Count One of the indictment, the State charged Metcalf with
attempt to commit the crime of aggravated sodomy . . . in that the said
accused did knowingly and intentionally perform acts which constituted
a substantial step toward the commission of said crime in that the
accused did engage in sexually explicit communications . . . describing
the accused’s desire to engage in oral-genital contact with someone the
accused believed to be a five (5) year old male child, . . . arrange a
meeting with [said child], and arrive at said meeting location. . . .
Count Three of the indictment contained identical allegations other than charging
Metcalf with criminal attempt to commit aggravated child molestation. It contains no
allegations regarding physical injury of a child.
Count Two of the indictment alleged that Metcalf
attempt[ed] to commit the crime of Aggravated Sodomy, in violation of
O.C.G.A. § 16-6-2, in that the said accused did knowingly and
intentionally perform acts which constituted a substantial step toward
the commission of said crime in that the accused did engage in sexually
explicit communications . . . describing the accused[‘s] desire to engage
in anal-genital contact with someone the accused believed to be a five
(5) year old male child, . . . arrange a meeting with [said child], and
arrive at said meeting location. . . .
15
Count Four of the indictment contained identical allegations other than charging
Metcalf with criminal attempt to commit aggravated child molestation. It contains no
allegations regarding physical injury of a child.
Finally, it is important to keep in mind that we are dealing with the merger of
attempted crimes. OCGA § 16-4-1 provides that “[a] person commits the offense of
criminal attempt when, with intent to commit a specific crime, he performs any act
which constitutes a substantial step toward the commission of that crime.” Before
considering whether the attempt crimes at issue here merge, we will examine the
history of Georgia case law regarding the merger of the underlying offenses of
aggravated sodomy and aggravated child molestation. As pointed out by Metcalf in
his brief, Georgia courts have issued inconsistent decisions on this issue.
(c) Merger of Aggravated Sodomy and Aggravated Child Molestation. In 1992,
the Supreme Court of Georgia held:
OCGA § 16-1-7 (a) provides: “When the same conduct of an accused
may establish the commission of more than one crime, the accused may
be prosecuted for each crime. He may not, however, be convicted of
more than one crime if: (1) One crime is included in the other; or (2) The
crimes differ only in that one is defined to prohibit a designated kind of
conduct generally and the other to prohibit a specific instance of such
conduct.” OCGA § 16-6-2 prohibits sodomy generally while OCGA §
16
16-6-4[, the aggravated child molestation statute,] prohibits sodomy
involving a child. Accordingly while it was proper to prosecute
appellant . . . for both aggravated sodomy and aggravated child
molestation, he should have been convicted and sentenced . . . for only
one of the two rather than for both.
(Citation, punctuation and footnote omitted; emphasis omitted.) Dobbins v. State, 262
Ga. 161, 165 (4) (415 SE2d 168) (1992). The Supreme Court of Georgia’s opinion
fails to specify which crime should have been merged into the other. In Lewis v. State,
205 Ga. App. 29 (421 SE2d 339) (1992), this Court quoted the general/specific
conduct reasoning of Dobbins and concluded that the defendant could only be
sentenced for aggravated sodomy or aggravated child molestation. Id. at 330 (2). Like
the Supreme Court of Georgia, we failed to specify which crime merged. Id. It is
important to note that at the time Dobbins was decided, however, the General
Assembly had not yet amended the aggravated sodomy statute to include an act of
“sodomy with a person who is less than ten years of age.” See Ga. L. 2000, p. 1346
§1.6 Accordingly, Dobbins does not govern the merger of aggravated child
6
At the time of the 2000 amendment, aggravated sodomy could be punished
by life imprisonment, while the maximum penalty for child molestation was 30 years
of imprisonment. Compare former OCGA § 16-6-2 with former OCGA § 16-6-4.
17
molestation based upon sodomy and aggravated sodomy of a child under the age of
ten.
In Wyatt v. State, 222 Ga. App. 604 (475 SE2d 651) (1996), we took a different
approach and applied the “actual evidence” test to conclude that where a single act
of sodomy “went to prove the aggravated sodomy charge, that proof ‘used up’ the
evidentiary basis for the charge of aggravated child molestation.” Id. at 606 (2).
Accordingly, we held that aggravated child molestation merges into aggravated
sodomy. Similarly, in Heidler v. State, 273 Ga. 54 (537 SE2d 44) (2000),7 the
Supreme Court of Georgia also applied the former “actual evidence” test to conclude
that the single act of sodomy
was necessary to prove the aggravated sodomy count of the indictment,
so that there was no remaining evidence upon which to base [the
defendant]’s conviction for an additional count of aggravated child
molestation. Under the facts of this case, the aggravated sodomy
conviction includes the aggravated child molestation charge plus the
additional element of force. Accordingly, the aggravated child
molestation conviction merged into the aggravated sodomy conviction
as a matter of fact.
7
The crimes at issue in Heidler took place in 1997, before the 2000 amendment
to the aggravated sodomy statute. 273 Ga. at 54, n.1.
18
(Citation omitted.) Id. at 64 (15). In Johnson v. State, 276 Ga. 57 (573 SE2d 362)
(2002), the Supreme Court of Georgia followed Heidler to conclude that the crimes
merged, but once again failed to specify which way. 276 Ga. at 59 (1).8 In a dissent
in which two justices joined, Justice Carley took the position that the 2000
amendment to the sodomy statute mandated that aggravated child molestation be
merged into aggravated sodomy. In his view,
[t]he General Assembly was authorized to make a policy determination
that, because committing sodomy against a victim under ten years old is
a more egregious act than the generally defined offense of aggravated
child molestation, that act should be redefined as aggravated sodomy,
with its potentially more severe punishment, whereas other acts,
including sodomy against a child who is between 10 and 16 years of age,
should remain within the definition of aggravated child molestation,
with its less severe maximum punishment. . . . There is no indication that
the General Assembly intended that such an act shall also remain
punishable as aggravated child molestation.
Id. at 65. Citing a rule of construction stating that “a specific statute will prevail over
a general statute,” Justice Carley asserted that because the recently amended
aggravated sodomy statute was a “more specific code section” also carrying a greater
8
The victim in Johnson was under ten years old. 276 Ga. at 58 (1).
19
punishment,9 the defendant should be sentenced under that specific code section.
(Citation omitted.) Id. at 65. The dissent did not cite the general/specific conduct
language governing merger found in OCGA § 16-1-7 (a) (2).
In Wilkerson v. State, 267 Ga. App. 585 (600 SE2d 677) (2004), this Court
returned to the general/specific language that originated in Dobbins to hold that
aggravated child molestation merged into aggravated sodomy.10 Id. at 587-588 (2).
In Howard v. State, 281 Ga. App. 797 (637 SE2d 448) (2006), we held for the first
time that aggravated sodomy merged into aggravated child molestation rather than the
other way around. Id. at 803 (4). In so holding, we relied upon Johnson, supra, an
actual evidence case that failed to specify which way the two crimes should merge.
Howard, 281 Ga. App. at 803 (1).
Shortly after our decision in Howard, the Supreme Court of Georgia decided
Drinkard, supra, and changed the test for determining merger under OCGA § 16-1-6
(a) (1) to the “required evidence” test. 281 at 216. In the only case addressing merger
9
In 2006, the General Assembly amended the aggravated child molestation
statute to provide for a life sentence. Ga. L., pp. 379, 387-388, § 11. See also
Hancock v. State, 210 Ga. App. 528, 532 (3) (b) (437 SE2d 610) (1993) (mere fact
of longer sentence is not controlling in determining whether an offense is a greater
or lesser included offense).
10
The victim in Wilkerson was under ten years of age. 267 Ga. App. at 585.
20
of aggravated sodomy and aggravated child molestation post-Drinkard, we cited
Howard, an “actual evidence” case, to conclude that aggravated sodomy merged into
aggravated child molestation. Barclay v. State, 306 Ga. App. 766, 768 (2) (702 SE2d
907) (2010). While we cited the required evidence test of Drinkard, we merged the
two crimes for sentencing because proof of sodomy alleged by Count 4 (aggravated
sodomy) was “necessary” to prove aggravated child molestation as alleged by Count
3 and cited a pre-Drinkard case as authority for doing so. Thus, while we cited the
proper test, we nonetheless applied the former actual evidence standard. See Lucky
v. State, 286 Ga. 478, 481, n.5 (689 SE2d 825) (2010). Barclay is the last reported
decision addressing the merger of aggravated child molestation and aggravated
sodomy. Having examined this body of law, we must now apply the “required
evidence” test to the case before us.
(d) Application of Required Evidence Test. Our research has revealed no case
addressing the merger of attempted aggravated child molestation and attempted
aggravated sodomy. We therefore begin our analysis with the required evidence test.
This test “is utilized to determine whether multiple convictions are precluded because
one of the crimes was established by proof of the same or less than all of the facts that
21
were required to establish the other crime.” (Citation and punctuation omitted.)
Regent, 299 Ga. at 175. Accordingly,
where the same act or transaction constitutes the violation of two
distinct statutory provisions, the test to be applied to determine whether
there are two offenses or only one is whether each [statutory] provision
requires proof of a fact which the other does not. If so, then two offenses
exist, and one is not “included in” the other.
(Citation and punctuation omitted.) Womac v. State, 302 Ga. 681, 684 (3) (808 SE2d
709) (2017). In applying the required evidence test
the important question is not the number of acts involved, or whether the
crimes have overlapping elements, but whether, looking at the evidence
required to prove each crime, one of the crimes was established by proof
of the same or less than all the facts required to establish the commission
of the other crime charged.
Drinkard, 281 Ga. at 216.
While the age element for aggravated child molestation overlaps the age
requirement for aggravated sodomy in this case, we cannot say that one crime is
proved by the same or less than all of the facts required to establish the commission
of the other crime. “[E]ach crime requires proof of at least one additional element
which the other does not.” (Citations and punctuation omitted.) Linson v. State, 287
22
Ga. 881, 886 (4) (700 SE2d 394) (2010). See also Brown v. State, 321 Ga. App. 798,
803 (3) (743 SE2d 474) (2013) (“Drinkard-required evidence test for merger applies
to cases involving attempt crimes”). Attempt to commit aggravated child molestation
requires proof that Metcalf “took a substantial step . . . with the intent to arouse or
satisfy the sexual desires of either the child or himself,” Lopez v. State, 326 Ga. App.
770, 773-774 (1) (b) (757 SE2d 436) (2014), while attempted aggravated sodomy
does not. Attempted aggravated sodomy requires proof that Metcalf took a substantial
step to commit an act of sodomy with a victim under the age of ten, while attempted
aggravated child molestation does not. Collum v. State, 281 Ga. 719, 724 (6) (642
SE2d 640) (2007) (holding victim’s age is element of crime when determining that
cruelty to children crime did not merge into malice murder).11 Cf. Castaneira v. State,
321 Ga. App. 418, 429 (6) (740 SE2d 400) (2013) (attempt to commit child
11
Our opinion in Culbreath v. State, 328 Ga. App. 153 (761 SE2d 557) (2014),
does not require a different result. In that case, we concluded that an age-related
amendment to the definition of aggravated assault was a penalty enhancement rather
than a separate element of the crime based upon the General Assembly’s statement
that it enacted the age-related provisions “so as to change the penalty provisions
relating to persons convicted of the crime of aggravated assault.” (Citation and
punctuation omitted.) Id. at 158 (2) (b) (iii). The age-related amendment to
aggravated sodomy, on the other hand, was enacted “so as to provide that sodomy
with a person who is less than ten years of age shall constitute the offense of
aggravated sodomy.” Ga. L. 2000, p. 1346.
23
molestation did not merge into attempt to entice a child for indecent purposes even
though premised upon the same conduct because each required proof of fact which
the other did not); Smith v. State, 320 Ga. App. 408, 413 (2) (b) (740 SE2d 174)
(2013) (no merger of cruelty to children requiring age under 18 and cruel mental pain
into aggravated child molestation requiring age under 16 and intent to arouse/satisfy
sexual desires).12
(e) General and Specific Conduct under OCGA § 16-1-7 (a) (2). Having
concluded that the crimes do not merge under the required evidence test, we now
consider whether they merge pursuant to another statutory method. As one
commentator has noted, the prong of the Georgia code regarding general and specific
conduct “has rarely been addressed specifically in the opinions of the courts.”
Daniel’s Criminal Trial Practice (2017-2018 ed.), § 26:32. This Code provision
requires merger where “[t]he crimes differ only in that one is defined to prohibit a
designated kind of conduct generally and the other to prohibit a specific instance of
12
Previous cases reaching a contrary conclusion with regard to merger that
applied the former “actual evidence” test rather than the current “required evidence”
test do not mandate a different outcome here. See Johnson, 276 Ga. at 59; Heidler,
supra, 273 Ga. at 64 (16); Barclay, 306 Ga. App. at 768 (2); Howard, 281 Ga. App.
at 803 (4); Wyatt, 222 Ga. App. at 606 (2).
24
such conduct.” (Emphasis supplied.) OCGA § 16-1-7 (a) (2). In Lavigne v. State, 299
Ga. App. 712 (2) (683 SE2d 656) (2009), we explained that overlapping phrases in
an indictment for a securities violation and theft by conversion did not require a
merger because the “phrases [were] merely descriptive of the subject matter of the
two offenses and fail[ed] to allege any type of general or specific conduct.” Id. at 714-
715 (2).
In one of the earliest decisions interpreting OCGA § 16-1-7 (a) (2), we
concluded that the crime of terroristic threats did not merge into aggravated assault
with intent to murder because “[t]he crimes are mutually independent and each is
aimed at prohibiting specific conduct.” Echols v. State, 134 Ga. App. 216, 218 (4)
(213 SE2d 907) (1975). We also have concluded that two general crimes do not
merge with one another. See Sims v. State, 197 Ga. App. 214, 217 (5) (398 SE2d 244)
(1990) (theft by deception and armed robbery “prohibit two designated kinds of
general conduct”); Moore v. State, 140 Ga. App. 824, 827 (2) (232 SE2d 264) (1976)
(burglary is general crime recognized as offense against habitation and attempted
armed robbery is general offense against safety and security of a person). Georgia
courts have concluded summarily that the following offenses do not merge under
25
OCGA § 16-1-7 (a) (2): aggravated battery and cruelty to children;13 armed robbery
and aggravated assault;14 rape and incest predicated on same act of penetration;15
reckless conduct and aggressive driving;16 kidnapping with bodily injury and
aggravated sodomy;17 aggravated assault and aggravated battery;18 and enticing a
child for indecent purposes and child molestation.19
Our research revealed a small number of cases in which we expressly merged
two crimes based upon the general/specific conduct provisions of OCGA § 16-1-7 (a)
(2). These crimes include: possession of marijuana (general) into possession with the
intent to distribute (specific);20 theft by taking (general) into either theft by
13
Waits v. State, 282 Ga. 1, 4-5 (2) (644 SE2d 127) (2007).
14
Harvey v. State, 233 Ga. 41, 43 (1) (209 SE2d 587) (1974).
15
Tinson v. State, 337 Ga. App. 83, 86 (2), n.1 (785 SE2d 914) (2016).
16
Winn v. State, 291 Ga. App. 16, 19-20 (660 SE2d 883) (2008).
17
Olsen v. State, 191 Ga. App. 763, 764 (1) (382 SE2d 715) (1989).
18
Moore v. State, 190 Ga. App. 278, 281 (2) (378 SE2d 880) (1989).
19
Will. v. State, 156 Ga. App. 481 (1) (274 SE2d 826) (1980).
20
Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463) (1991).
26
conversion (specific) or theft by deception (specific);21 and theft of a motor vehicle
(specific) into theft by taking (general).22
In this case, we cannot say that attempted aggravated sodomy differs from
aggravated child molestation “only in that one is defined to prohibit a designated kind
of conduct generally and the other to prohibit a specific instance of such conduct.”
(Emphasis supplied.) OCGA § 16-1-7 (a) (2). From the plain language of the statute,
it is clear that merger under this subsection is determined solely by examining the
statutory definitions of each crime. In this case, we are dealing with the same crime,
attempt, which criminalizes performance of a substantial step taken “with intent to
commit a specific crime.” (Emphasis supplied.) OCGA § 16-4-1. Therefore, we
cannot say that one attempt crime prohibits general conduct while the other prohibits
specific conduct; they both require intent to commit a specific crime.
To the extent the Georgia Supreme Court’s opinion in Dobbins, supra, and its
progeny, addressed this ground for merger, a different result is not required in this
case, because those cases were not addressing attempt crimes. Additionally, after
21
Mathis v. State, 343 Ga. App. 206, 211 (2) (807 SE2d 4) (2017).
22
Johnson v. State, 130 Ga. App. 134, 137 (2) (b) (202 SE2d 525) (1973). We
note the anomaly of this case merging a specific crime into a general one, but as this
issue is not squarely before us, we decline to address it.
27
Dobbins was decided in 1992, the General Assembly amended the sodomy statute so
that now both crimes prohibit sodomy involving a child. Because our opinions in
Lewis, supra, 205 Ga. App. at 30, and Wilkerson, supra, 267 Ga. App. at 587 (2),
merely quote and follow the Georgia Supreme Court’s language in Dobbins, they are
also not controlling.
(f) Less Culpable Mental State under OCGA § 16-6-1 (1). With regard to the
third ground for merger, grounded upon a “less culpable mental state,” OCGA § 16-1-
6 (1), our courts examine the mens rea element of the crimes at issue. For example,
in Corson v. State, 144 Ga. App. 559 (241 SE2d 454) (1978), we concluded that
second degree criminal damage to property, requiring reckless or intentional damage
to property, merged into first degree arson, requiring knowing damage by means of
fire. Id. at 560-561 (1) (c). Accordingly, Georgia courts have concluded that the
following crimes can be merged under this provision: possession of marijuana into
28
possession of marijuana with intent to distribute;23 harrassing telephone calls into
terroristic threats;24 and reckless conduct into aggravated assault.25
In this case, we cannot say that either attempt crime “is established by . . . a less
culpable mental state than is required to establish the commission” of the other.
OCGA § 16-1-6 (1). Both crimes required that a substantial step be taken “with intent
to commit a specific crime.” OCGA § 16-4-1.
(g) Less Serious Injury or Lesser Kind of Culpability under OCGA § 16-1-6
(2). Under this provision, a crime is included “when [i]t differs from the crime
charged only in the respect that a less serious injury or risk of injury to the same
person, property, or public interest or a lesser kind of culpability suffices to establish
its commission.” (Emphasis supplied.) OCGA § 16-1-6 (2). Accordingly, when the
crimes involve injury to a different property or public interest, the crimes do not
merge under this Code section. See Epperson v. State, 340 Ga. App. 25, 35 (3) (a)
(796 SE2d 1) (2016) (“[a]ggravated battery and armed robbery do not simply prohibit
23
Talley, supra, 200 Ga. App. at 446 (4).
24
Todd v. State, 230 Ga. App. 849, 850-851 (1) (498 SE2d 142) (1998),
overruled on other grounds, Johnson v. State, 272 Ga. 468, 469 (1) (a), n.2 (532 SE2d
377) (2000).
25
State v. Springer, 297 Ga. 376, 380 (1) (774 SE2d 106) (2015).
29
different degrees of injury or risk of injury; rather, the two crimes prohibit entirely
different categories of injury – depriving a victim of a member of his body versus
depriving a victim of property”) (emphasis in original). See also Shuler v. State, 195
Ga. App. 849, 850 (1) (395 SE2d 26) (1990) (lesser included jury charge case;
fighting words and cruelty to children “differ more than with respect to a less serious
injury or risk of injury, or a lesser kind of culpability” because they “prohibit
generally different types of conduct and seek to protect different classifications of
victims”); Givens v. State, 184 Ga. App. 498, 500 (3) (361 SE2d 830) (1987) (lesser
included jury charge case; “[s]imple battery focuses on injury to the person while
robbery by force involves the taking of property from the person of another by doing
physical violence to the victim”).
We also have declined to find that one crime is a lesser included offense under
this provision when “[t]he offenses are equally serious.” Shockley v. State, 256 Ga.
App. 892, 895 (3) (570 SE2d 67) (2002) (reckless driving and driving under the
influence less safe do not merge). Additionally, crimes defined by first and second
degrees do not necessarily merge. In Sullivan v. State, 331 Ga. App. 592 (771 SE2d
237) (2015), we held that “although the criminal damage to property charges are
defined by degrees, they prohibit different risks of injury — knowing interference
30
with property in a manner that endangers human life and damage that results in a
certain level of property damage to the property.” Id. at 595-596 (1). Accordingly,
first and second degree criminal damage to property did not merge under OCGA §
16-1-6 (2). Other crimes not merging under this Code section include: aggravated
assault with a knife and armed robbery;26 aggravated assault and attempted rape;27
public indecency and public drunkenness;28 and rape and incest.29
On the other hand, we have concluded that the following crimes are lesser
included offenses under this provision: possession of a controlled substance included
in trafficking in the same substance;30 robbery by sudden snatching posing a “less
serious risk of injury” than armed robbery;31 “aggravated assault as charged required
26
Harvey, supra, 233 Ga. at 43 (1).
27
Smith v. State, 313 Ga. App. 170, 175 (2) (721 SE2d 165) (2011) (court held
that separate crime of aggravated assault with intent to rape merged with attempted
rape under the required evidence test).
28
Loya v. State, 321 Ga. App. 430, 432 (1) (740 SE2d 382) (2013).
29
Tinson, supra, 337 Ga. App. at 86 (2), n.1.
30
Dalton v. State, 249 Ga. 720, 721 (1) (292 SE2d 834) (1982).
31
Millender v. State, 286 Ga. App. 331, 333 (2) (648 SE2d 777) (2007).
31
proof of a less serious injury than the aggravated battery as charged”;32 aggravated
battery into malice murder arising from same injury;33 and simple battery into
aggravated assault.34 Based upon our review of OCGA § 16-1-6 (2) and the body of
case law governing it, we conclude that attempted aggravated child molestation and
attempted aggravated sodomy are equally serious, and one cannot be considered a less
culpable offense or one that poses less serious risk of injury.
(h) Conclusion. For the reasons outlined above, we find no merit in Metcalf’s
enumeration of error that the trial court erred by merging attempted aggravated
sodomy into attempted aggravated child molestation rather than the other way around.
However, as is clear from our analysis, the trial court erred by merging these two
crimes in any direction. While this conclusion is different from our previous cases
regarding the merger of aggravated sodomy and aggravated child molestation, many
of those cases applied the former actual evidence test. This is not the first case in
which application of the required evidence test has resulted in an outcome different
from that obtained under the former actual evidence test. See, e. g., Petro v. State, 327
32
Thomas v. State, 310 Ga. App. 404, 412 (5) (714 SE2d 37) (2011).
33
Soilberry v. State, 289 Ga. 770, 772-773 (3) (716 SE2d 162) (2011).
34
Hicks v. State, 337 Ga. App. 567, 570 (3) (788 SE2d 502) (2016).
32
Ga. App. 254, 261 (2) (758 SE2d 152) (2014) (distinguishing cases merging
terroristic threats into aggravated assault pursuant to former “actual evidence” test
when determining that “required evidence” test did not require merger of terroristic
threats into aggravated assault).
We now consider whether we should vacate Metcalf’s sentence for Counts
Three and Four (attempted aggravated child molestation) because the trial court
should not have merged attempted aggravated sodomy (Counts One and Two). In
considering this question, it is important to keep in mind that neither party on appeal
has asserted this particular error. Appellate courts “have the discretion to correct
merger errors sua sponte — regardless of who is harmed by the error and who
benefits from its correction[,]” Hulett v. State, 296 Ga. 49, 54 (2) (766 SE2d 1)
(2014), “because a merger error results in an illegal and void judgment of conviction
and sentence.” Dixon v. State, 302 Ga. 691 (808 SE2d 696) (2017).
In Dixon, the Supreme Court of Georgia recently limited its own discretion in
this regard, holding “that, when a merger error benefits a defendant and the State fails
to raise it by cross-appeal,35 we henceforth will exercise our discretion to correct the
35
See OCGA § 5-7-1 (a) (6) (State has right to appeal void order, decision, or
judgment).
33
error upon our own initiative only in exceptional circumstances.” (Emphasis
supplied.) 302 Ga. at 698 (4). It reasoned that exercising “discretion to correct such
an error effectively penalizes the defendant for having brought his case before us.”
Id. Accordingly, it affirmed the defendants’ convictions and sentences, despite
concluding that the trial court erred by merging armed robbery into malice murder.
Id. at 697-698 (4).
In two cases decided after Dixon, the Supreme Court declined to exercise its
discretion to correct error in the trial court’s merger of offenses based upon the
State’s failure to file a cross-appeal, even though the State argued in its appellee brief
that the trial court had improperly merged two offenses. See Brown v. State, 303 Ga.
617, 618 (1) (b) (814 SE2d 364) (2018); Hood v. State, 303 Ga. 420, 424 (1) (d) (811
SE2d 392) (2018). And in Stephens v. State, 303 Ga. 530, 532 (1) (813 SE2d 596)
(2018), the Supreme Court refused to look at a merger issue unfavorable to the
defendant because the State did not cross-appeal, even though the defendant had
raised other merger issues on appeal. Id. at 531 (1), n.2.
In this case, the State not only failed to file a cross-appeal, but has also
maintained both in the trial court and before this Court that the attempted aggravated
sodomy verdicts merge into the attempted aggravated child molestation verdicts.
34
Based upon the particular facts and circumstances of this case, and in light of Dixon,
supra, we decline to exercise our discretion to correct the trial court’s merger error
sua sponte.
Judgment affirmed. Miller, P. J., and Goss, J., concur.
35