Georgia Supreme Court Clarifies Merger Rules with Molestation Offenses

In State v. Shropshire, the Georgia Supreme Court granted certiorari to determine when several separate counts of child molestation should merge for purposes of sentencing.

Unit-of-Prosecution v. Required Evidence

When a defendant is convicted of multiple charges or counts, a sentencing court must determine whether some or all of the counts should merge in an effort to avoid punishing a defendant twice for what is essentially the same criminal act.

Under Georgia law, there are two different tests for determining whether separate counts of conviction should merge at sentencing: unit-of-prosecution analysis and required evidence analysis.

As the Supreme Court has now concluded, the unit-of-prosecution analysis applies when deciding whether two counts of child molestation should merge, and the required evidence analysis controls when considering whether a child molestation charge should merge into an aggravated child molestation charge.

Factual and Procedural Background

In this case, the defendant was indicted and later convicted of two counts of child molestation and one count of aggravated child molestation. The charges stemmed from an allegation made by his niece that he engaged in various sexual acts with her on one night in 2001. The case was indicted in 2015, and the trial took place in 2017.

The defendant was sentenced separately for all of these charges – receiving a life sentence on the aggravated charge and consecutive 20-year sentences for each of the molestation charges.

On appeal, he argued that the child molestation convictions should have merged into the greater aggravated child molestation charge for purposes of sentencing. The Court of Appeals applied a unit-of-prosecution analysis and held that the charges should have merged.

The Court of Appeals vacated his sentence and remanded the case back to the trial court instructing that he be sentenced only on the aggravated charge.

Supreme Court’s Merger Analysis

The Supreme Court reversed, finding that the unit-of-prosecution analysis should be used only when considering the merger of “multiple counts of the same crime.” The Court held that when considering whether one crime (child molestation) merges into a different crime (aggravated child molestation), the required evidence test must be used.

Because child molestation and aggravated child molestation are different crimes, the Supreme Court concluded that the Court of Appeals should have applied the required evidence test to determine if the offenses should have merged.

As a result, the Supreme Court vacated the judgment of the Court of Appeals and remanded the case back to the appellate court to apply the correct merger analysis.