Adam Christian Mecomber v. State

• Court: Court of Appeals of Georgia
• Decided: July 21, 2022
• Docket: A22A0953
• Status: Published

Opinion

FOURTH DIVISION DILLARD, P. J., MERCIER and MARKLE, 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. https://www.gaappeals.us/rules

July 21, 2022

In the Court of Appeals of Georgia A22A0953. MECOMBER v. THE STATE.

MERCIER, Judge.

Following a guilty plea, Adam Christian Mecomber was convicted of sexual

exploitation of children (possession of child pornography). The trial court sentenced

him to two years in confinement, followed by eighteen years on probation. Mecomber

appeals, asserting that his sentence is void because the trial court failed to apply the

rule of lenity. Finding no error, we affirm.

The record shows that Mecomber was charged with ten counts of child sexual

exploitation, with each count alleging that, in violation of OCGA § 16-12-100 (b), he

knowingly possessed and controlled a specified digital photograph depicting a minor

engaged in sexually explicit conduct. Mecomber pled guilty to the charges, and the

trial court merged all counts into Count 1 at sentencing. It then imposed a 20-year felony sentence. Challenging this felony sentence on appeal, Mecomber argues that

the “rule of lenity” required misdemeanor punishment. We disagree.

The rule of lenity is rooted “in the vagueness doctrine, which requires fair

warning as to what conduct is proscribed.” Koroma v. State, 350 Ga. App. 530, 531

(2) (827 SE2d 903) (2019) (citation and punctuation omitted). It “ensures that if and

when an ambiguity exists in one or more statutes, such that the law exacts varying

degrees of punishment for the same offense, the ambiguity will be resolved in favor

of a defendant, who will then receive the lesser punishment.” Id. (citation and

punctuation omitted). The key inquiry “is whether the identical conduct would

support a conviction under either of two crimes with differing penalties.” Id. (citation

and punctuation omitted).

Mecomber was charged with knowingly possessing and controlling material

depicting a minor engaged in sexually explicit conduct. See OCGA § 16-12-100 (b)

(8) (“It is unlawful for any person knowingly to possess or control any material which

depicts a minor o]r a portion of a minor’s body engaged in any sexually explicit

conduct.”). Such conduct is generally punishable as a felony. See OCGA § 16-12-100

(f) (1). Mecomber argues, however, that this same conduct also constitutes a

misdemeanor violation of OCGA § 16-12-100 (c), which provides:

2 A person who, in the course of processing or producing visual or printed matter either privately or commercially, has reasonable cause to believe that the visual or printed matter submitted for processing or producing depicts a minor engaged in sexually explicit conduct shall immediately report such incident, or cause a report to be made, to the Georgia Bureau of Investigation or the law enforcement agency for the county in which such matter is submitted.

See also OCGA § 16-12-100 (f) (2) (“Any person who violates subsection (c) of this

Code section shall be guilty of a misdemeanor.”).

In Mecomber’s view, possession and control of digital images in violation of

OCGA § 16-12-100 (b) (8) is equivalent to “processing and producing” visual matter

under OCGA § 16-12-100 (c), triggering the rule of lenity. But the offenses

proscribed by these two provisions are distinct. Unlike OCGA § 16-12-100 (b) (8),

knowing possession or control is not the primary concern of OCGA § 16-12-100 (c).

A subsection (c) violation results when a person responsible for processing or

producing visual or printed material fails to report to law enforcement that the

material contains child-related sexually explicit content. The failure to report, rather

than knowing possession or control of such material, gives rise to a misdemeanor

charge. See OCGA § 16-12-100 (c).

3 Mecomber was not indicted for failure to report sexually explicit material

involving a child. He was charged with — and pled guilty to — knowing possession

and control of the material. The charged conduct falls within the felony provision of

OCGA § 16-12-100 (b) (8), not the misdemeanor language of OCGA § 16-12-100 (c).

The rule of lenity, therefore, does not apply. See Banta v. State, 281 Ga. 615, 618 (2)

(642 SE2d 51) (2007) (rule of lenity does not apply when “the two statutes do not

define the same offense”); In the Interest of P. T., 353 Ga. App. 511, 516 (1) (b) (838

SE2d 596) (2020) (rule of lenity does not apply where statutes at issue “do not

involve conflicting definitions and do not define the exact same conduct”); Koroma,

supra at 531 (2) (“[T]he operative question is whether [the defendant’s] conduct, as

charged, subjected him to prosecution and sentencing under both statutes.”) (citation

and punctuation omitted); Gordon v. State, 334 Ga. App. 633, 637 (780 SE2d 376)

(2015) (“[T]he essential requirement of the rule of lenity is that both crimes could be

proved with the same evidence.”) (citation and punctuation omitted).

Judgment affirmed. Dillard, P. J., and Markle, J., concur.