The Scott I Court explained that "[m]erger analysis often involves counts charging two different crimes," and made clear "that is the context in which Drinkard's[] ‘required evidence’ test is applied." 306 Ga. 507, 832 S.E.2d 426 (2019).Id. at 509 (2), 832 S.E.2d 426 ; accordDukes v. State , 311 Ga. 561, 571 (4), 858 S.E.2d 510 (2021) ; see U.S. Const. Amend. 5 ("No person ... shall any person be subject for the same offence to be twice put in jeopardy of life or limb ...."); Ga. Const. Art. 1, § 1, XVIII ("No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.").
The final count (Count 5) was based on the bathroom incident. Scott v. State , 306 Ga. 507, 508 (1), 832 S.E.2d 426 (2019). A Fulton County jury found Scott guilty of four counts of child molestation (Counts 2-5).
" ‘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 , 306 Ga. 507, 509 (2), 832 S.E.2d 426 (2019) ; see State v. Marlowe , 277 Ga. 383, 383-384 (1), 589 S.E.2d 69 (2003). In cases involving two counts of the same offense, the merger analysis generally requires interpretation of the criminal statute at issue to identify the "unit of prosecution – the precise act or conduct that the legislature criminalized."
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, 306 Ga. 507, 832 S.E.2d 426 (2019); Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).
(Citation and punctuation omitted.) Scott v. State , 306 Ga. 507, 509 (2), 832 S.E.2d 426 (2019) (" Scott I "). "Whether a particular course of conduct involves one or more distinct offenses under the statute depends on ... legislative choice, [and] the text of the statute itself best reflects that legislative choice."
(Citations, punctuation, and emphasis omitted.) Scott v. State , 306 Ga. 507, 509 (2), 832 S.E.2d 426 (2019). See also Busby v. State , 332 Ga. App. 646, 650 (2) (b), 774 S.E.2d 717 (2015) ("Typically, the question is whether the same conduct may be punished under different criminal statutes.
Accordingly, a unit-of-prosecution analysis should be applied to determine if Shropshire’s two counts of child molestation merge. See Scott v. State, 306 Ga. 507, 509 (2), 832 S.E.2d 426 (2019) ("Scott I"); Cobb v. State, 356 Ga. App. 187, 191 (3) (b), 843 S.E.2d 912 (2020). Because child molestation and aggravated child molestation are different crimes, a required evidence analysis applies when considering whether those crimes merge.
The doctrine of merger applies when a defendant is prosecuted for multiple criminal offenses, but as a matter of substantive double jeopardy, may be punished only once. See OCGA § 16-1-7 (a) ; Scott v. State , 306 Ga. 507, 509 (2), 832 S.E.2d 426 (2019). The "required evidence test" applies "where the same act or transaction constitutes a violation of two distinct statutory provisions" and the appropriate inquiry is "whether each provision requires proof of a fact which the other does not."
Coates v. State , 304 Ga. 329, 331, 818 S.E.2d 622 (2018). In Scott v. State , 306 Ga. 507, 832 S.E.2d 426 (2019), however, the Supreme Court of Georgia held that an appellate court reviewing a conviction for multiple counts of child molestation should engage in a "unit of prosecution" analysis: [M]erger analysis requires careful interpretation of the criminal statute at issue to identify the unit of prosecution – the precise act or conduct that the legislature criminalized ....
" ‘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 , 306 Ga. 507, 509, 832 S.E.2d 426, 428 (2019). Substantive double jeopardy law protects a defendant from multiple punishments when his crimes arise from the same conduct.