State v. Shropshire

FINAL COPY

              S23G0310. THE STATE v. SHROPSHIRE.


     WARREN, Justice.

     This case presents the question of whether a unit-of-

prosecution analysis or a required evidence analysis should be

applied to determine the question of merger as to one count of

aggravated child molestation and two counts of child molestation.

As both parties now concede, unit-of-prosecution analysis applies to

the question of whether the two counts of child molestation merge

and required evidence analysis applies when considering the merger

of aggravated child molestation and child molestation. Because the

Court of Appeals did not analyze correctly the merger question

presented in this case, we vacate that part of the Court of Appeals’s

judgment and remand the case to the Court of Appeals to reconsider

the merger question applying the correct analysis.1


     1 We do not address any other holdings in the Court of Appeals opinion,

as they are “outside the scope of the questions posed in granting certiorari.”
     1. In August 2015, Tony Shropshire was indicted for

aggravated child molestation, two counts of child molestation,

incest, and first-degree cruelty to children. At a trial in February

2017, evidence was presented that one night in 2001, Shropshire put

his fingers and penis on his five- or six-year-old niece’s vagina and

licked her vagina.2 The jury found Shropshire guilty of all counts,

and the trial court sentenced him to serve life in prison for

aggravated child molestation and consecutive sentences of 20 years

for each count of child molestation, 50 years for incest, and 20 years

for cruelty to children. Shropshire filed a motion for new trial, which

was denied.

     Shropshire appealed, arguing, among other things, that he

should not have been convicted of child molestation because those

two counts should have merged into the aggravated child

molestation conviction. The Court of Appeals applied a unit-of-

prosecution analysis to the convictions to answer this question and


See Coe v. Proskauer Rose, LLP, 

, 530 n. 19 (

) (2022).

     2 The niece reported this incident when she was about 15 years old.

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concluded that the two child molestation counts merged into the

aggravated child molestation conviction because the three acts

alleged—“touching [the victim’s] vagina with his tongue, finger, and

penis”—were “‘part of a single course of conduct occurring in a

relatively short time frame.’” Shropshire v. State, 

,

662-663 (

) (2022) (citation omitted). The court vacated

Shropshire’s convictions and sentences for aggravated child

molestation and child molestation and remanded the case for the

trial court to convict and resentence Shropshire on only the single

count of aggravated child molestation. See id. at 663.

     The State petitioned this Court for a writ of certiorari and we

granted the petition, posing the following question:

     Should a unit-of-prosecution analysis, as opposed to a
     required-evidence analysis, be applied to evaluate
     whether child molestation merges into aggravated child
     molestation? See generally Scott v. State, 

     (

) (2019); Drinkard v. Walker, 

     (

) (2006).[3]
     2. “‘Merger’ refers generally to situations in which a defendant

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


     3 This case was orally argued in this Court on October 17, 2023.

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multiple criminal charges but then, as a matter of substantive

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

for only one of those” criminal charges. Scott, 

. A unit-

of-prosecution analysis, which “requires careful interpretation of the

criminal statute at issue to identify the unit of prosecution—the

precise act or conduct that the legislature criminalized,” should be

applied to determine whether “multiple counts of the same crime”

merge. Scott, 

 (citation and punctuation omitted;

emphasis in original). By contrast, a required evidence analysis,

which considers whether each crime “requires proof of a fact which

the other does not,” applies to a merger analysis “where the same

act or transaction constitutes a violation of two distinct statutory

provisions.” Drinkard, 

 (citation and punctuation

omitted). See also Scott, 

 (“Merger analysis often

involves counts charging two different crimes. As this Court has

made clear, that is the context in which Drinkard’s ‘required




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evidence’ test is applied.”) (emphasis in original).4

      Here, Shropshire was found guilty of one count of aggravated

child molestation and two counts of child molestation. Because the

two counts of child molestation charge the same crime, a unit-of-

prosecution analysis should be applied to determine if Shropshire’s

two counts of child molestation merge. See Scott, 

(remanding the case for the Court of Appeals to “apply the unit of

prosecution for child molestation” to determine if Scott’s four counts

of child molestation merged). However, child molestation and

aggravated child molestation are different crimes. Compare OCGA

§ 16-6-4 (a) (defining child molestation) with OCGA § 16-6-4 (c)



      4 The “‘required evidence’ test applies strictly within the context of
determining 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.” Drinkard, 

 n.32. See also
OCGA §§ 16-1-6 (1) (explaining that one crime is included in another when “[i]t
is established by proof of the same or less than all the facts”); 16-1-7 (a) (1)
(explaining that a defendant may not “be convicted of more than one crime” if
“[o]ne crime is included in the other”). “There are additional statutory
provisions concerning prohibitions against multiple convictions for closely
related offenses” that may affect a merger analysis. Drinkard, 

n.32. But the question we asked in granting review of this case is only whether
a unit-of-prosecution or required evidence analysis should be applied. We do
not address any other issues. See Coe, 

.

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(defining aggravated child molestation).5 Thus, a required evidence

analysis, rather than a unit-of-prosecution analysis, should be

applied when considering whether those different crimes merge. See

Drinkard, 

.

      The Court of Appeals erred in applying a unit-of-prosecution

analysis rather than a required evidence analysis in determining

whether Shropshire’s child molestation counts merged into his

aggravated child molestation conviction.6 We therefore vacate that


      5   OCGA § 16-6-4 has been amended four times since 2001, when
Shropshire allegedly committed the charged crimes. The version of OCGA § 16-
6-4 (a) in effect in 2001 said: “A person commits the offense of child molestation
when he or she does 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 or satisfy
the sexual desires of either the child or the person,” and OCGA § 16-6-4 (c)
said: “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.”

      6 To support its analysis, the Court of Appeals relied on language in our

decision in Scott. Although most of Scott is consistent with our decision today,
one case citation could fairly be read as endorsing the erroneous analysis we
correct here. As explained below, we now disapprove that reading. In Scott,
this Court said that “[t]he Court of Appeals failed to engage in the applicable
unit-of-prosecution analysis in its unpublished opinion here” and “in its other
published opinions holding that multiple counts of child molestation did not
merge.” Scott, 

. The opinion then cited seven cases, five of which
involved the merger of multiple counts of child molestation only. See 

 One of
those cases involved the merger of one count of aggravated child molestation

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part of the Court of Appeals’s judgment and remand the case to that

court to apply the correct analysis to determine the merger of the

aggravated child molestation and two child molestation counts.

     Judgment vacated in part and case remanded. All the Justices
concur.




and two counts of child molestation, see Carver v. State, 

(

) (2015), and another involved the merger of one count of
aggravated child molestation and one count of child molestation, see Metts v.
State, 

 (

) (2009). See Scott, 

.
The sentence in Scott preceding these citations—which referenced the Court of
Appeals’s holdings that “multiple counts of child molestation did not merge”—
indicates that this Court in Scott was addressing only the merger of multiple
counts of child molestation, and not the merger of aggravated child molestation
and child molestation. To the extent we implied that Carver incorrectly decided
a merger issue, the citation can be read consistently with the rest of Scott to
refer only to the merger of the two child molestation counts. We must, however,
confess error as to the citation to Metts, and we disapprove any reading of
Scott—based on the erroneous Metts citation—as holding that a unit-of-
prosecution analysis should be applied when determining whether a count of
aggravated child molestation and a count of child molestation merge.
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                     Decided December 19, 2023.

       Certiorari to the Court of Appeals of Georgia — 

.

       Fani T. Willis, District Attorney, Kevin C. Armstrong, Ruth M.

Pawlak, Assistant District Attorneys, for appellant.

       Brian V. Patterson, for appellee.




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