310 Ga. 445 FINAL COPY
S20A1274. SMALLWOOD v. THE STATE.
MCMILLIAN, Justice.
Derek Smallwood challenges his conviction for entering an
automobile under OCGA § 16-8-18, asserting that the statute is void
for vagueness, or alternatively, under the rule of lenity, that he
should have been sentenced for misdemeanor criminal trespass of a
vehicle. We conclude that OCGA § 16-8-18 is not unconstitutionally
vague as applied to the facts of Smallwood’s case, and because that
statute prevails as the more specific statute over criminal trespass
of a vehicle, the rule of lenity does not apply. Therefore, we affirm.
1. The stipulated facts from Smallwood’s bench trial are as
follows:
On January 18, 2019, several units of the Paulding County Sheriff’s Office were dispatched to Briar Patch BBQ’s employee parking lot in reference to a possible Entering an Automobile. The victim was informed by a co- worker that a person was in his car. Deputy Investigator Nathan Geyer approached the person in the vehicle, a tan Toyota Camry, and told the person to exit the vehicle. The person was identified as the Defendant, Derek Paul Smallwood, by his date of birth, and he was detained at that time. The vehicle’s owner, who was on scene, informed the deputies that he did not know Mr. Smallwood, nor gave him permission to be in his car. The owner told the deputies that he was missing his cell phone from inside the car, as well as a bottle of laundry soap. Both items were found in a black grocery sack Mr. Smallwood had with him in his backpack. Also inside the backpack was a glass smoking pipe with burnt residue of marijuana, a grinder, and a digital scale. When the deputies asked him about the car, Mr. Smallwood told them that he was cold and he thought the car looked abandoned, so he opened the passenger side door and climbed in. The deputies then arrested Mr. Smallwood for Entering an Automobile, Theft by Taking, and Possession of Drug Related Objects.
On March 6, 2019, Smallwood was accused of entering an
automobile that was the property of another person with the intent
to commit theft under OCGA § 16-8-181 (Count 1), theft by taking
(Count 2), and two counts of possession of drug-related objects
(Counts 3 and 4). Smallwood thereafter filed a general demurrer to
1 OCGA § 16-8-18 provides:
If any person shall enter any automobile or other motor vehicle with the intent to commit a theft or a felony, he shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years, or, in the discretion of the trial judge, as for a misdemeanor. 2 Count 1 of the accusation on the grounds that OCGA § 16-8-18 was
void for vagueness. At a February 18, 2020 hearing, the trial court
heard and rejected Smallwood’s arguments that OCGA § 16-8-18 is
void on its face and as applied. Smallwood then waived his right to
a jury trial and proceeded with a bench trial on the stipulated facts.
The trial court found him guilty of all counts and sentenced him in
total to 12 months to be served on probation with a $405 fine.
Smallwood also filed a motion in arrest of judgment as to Count 1 of
the accusation, which the trial court denied. Smallwood timely filed
a notice of appeal and asked for a supersedeas bond pending appeal,
which the trial court granted.
2. Smallwood claims that his entering an automobile conviction
must be overturned because OCGA § 16-8-18 is unconstitutionally
vague on its face and as applied to his case. We reject these
challenges on the grounds that he can prevail on his facial challenge
only if he prevails on his as-applied challenge, and OCGA § 16-8-18
is not vague as applied to Smallwood.
The Fourteenth Amendment to the United States Constitution
3 provides that no State shall “deprive any person of life, liberty, or
property, without due process of law.”2
It is well established that the void for vagueness doctrine of the due process clause requires that a challenged statute or ordinance give a person of ordinary intelligence fair warning that specific conduct is forbidden or mandated and provide sufficient specificity so as not to encourage arbitrary and discriminatory enforcement.
Derrico v. State, 306 Ga. 634, 635 (2) (831 SE2d 794) (2019) (citation
and punctuation omitted). “Vagueness invalidates criminal statutes
that fail to provide clear warning to the average citizen of what
conduct is criminally forbidden or fail to provide explicit standards
for its enforcement to law enforcement officers. . . . [V]ague laws
without clear enforcement criteria can result in unfair,
discriminatory enforcement.” In the Interest of K. R. S., 284 Ga. 853,
854 (2) (672 SE2d 622) (2009).
“[V]agueness challenges to statutes which do not involve First
2 Although Smallwood cites in passing the due process clause of the Georgia Constitution, along with the Fifth Amendment and Fourteenth Amendment of the United States Constitution, he makes no separate argument and cites no cases regarding the Georgia Constitution, so we restrict our analysis to his claims under the federal constitution. 4 Amendment freedoms must be examined in the light of the facts of
the case at hand.” Daddario v. State, 307 Ga. 179, 188 (2) (b) (835
SE2d 181) (2019) (citation and punctuation omitted). In other words,
outside of the First Amendment context, if a challenger’s as-applied
vagueness challenge fails, then his facial challenge also fails. See
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 495 (II) (102 SCt 1186, 71 LE2d 362) (1982) (“A plaintiff
who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of
others.”).
Smallwood asserts that under recent United States Supreme
Court precedent, his facial challenge prevails as long as he can show
that in some hypothetical circumstance, OCGA § 16-8-18 could be
applied in such a way that the offender would not have fair warning
that his conduct violated the statute.3 Compare United States v.
3 As an example, Smallwood claims that a person entering their own
automobile with the intent of driving somewhere to commit a theft or felony would violate OCGA § 16-8-18 even if the person does not actually commit the theft or felony. We need not address this hypothetical factual scenario for the reasons set forth below. 5 Salerno, 481 U.S. 739, 745 (II) (107 SCt 2095, 95 LE2d 697) (1987)
(to succeed on a facial challenge, petitioner “must establish that no
set of circumstances exists under which the [statute] would be
valid”), with Sessions v. Dimaya, __ U.S. __, __ (III) n.3 (138 SCt
1204, 200 LE2d 549) (2018) (rejecting assertion that a court may not
invalidate a statute for vagueness simply because the statute is
clear in at least some applications), and Johnson v. United States,
576 U.S. 591, 602 (II) (B) (135 SCt 2551, 192 LE2d 569) (2015)
(“[A]lthough statements in some of our opinions could be read to
suggest otherwise, our holdings squarely contradict the theory that
a vague provision is constitutional merely because there is some
conduct that clearly falls within the provision’s grasp.” (emphasis in
original)).
We need not answer whether Johnson and Dimaya rejected the
proposition that a facial challenge requires a statute to be vague in
all applications and therefore whether, as Smallwood contends, a
statute is unconstitutionally vague on its face if the challenger can
point to some hypothetical circumstance where the statute does not
6 give fair warning that the conduct is covered. That is because
neither of these cases overrules the principle that for a court to reach
a facial challenge, a challenger must be able to successfully bring an
as-applied challenge.4
Johnson and Dimaya do not expressly disavow the principle
that outside the First Amendment context, a defendant whose
conduct falls squarely within the confines of the statute cannot
prevail on a facial challenge, and their reasoning and analysis
support that the Supreme Court contemplated applying the
4 Federal courts have reached differing conclusions about the implications of rejecting the “no set of circumstances” test as articulated in Salerno and similar cases and what analysis to apply post-Johnson in evaluating facial challenges. See, e.g., U.S. Telecom Assn. v. Fed. Communications Comm., 825 F3d 674, 735-36 (VI) (B) (D.C. Cir. 2016) (after noting that Johnson “suggested some skepticism” about the principle that an enactment is impermissibly vague if it is vague in all its applications, court declined to “decide the full implications of Johnson”); United States v. Lynch, 881 F3d 812, 818-19 (II) (10th Cir. 2018) (construing Johnson to require “full vagueness analysis” and concluding that persons of ordinary intelligence could understand what was prohibited by criminal statute); Guerrero v. Whitaker, 908 F3d 541, 545 (9th Cir. 2018) (criminal statute not unconstitutionally vague on its face when its terms are applied to “real-world facts” rather than an idealized crime as in Johnson and Dimaya); Henry v. Spearman, 899 F3d 703, 709 (III) (A) (9th Cir. 2018) (to extent that Hoffman Estates is inconsistent with Johnson and Dimaya, it does not reflect the current state of the law). Although the decisions of the federal courts of appeal are not binding on this court, we may find their reasoning instructive. See Macon-Bibb County Hosp. Auth. v. Nat. Treasury Employees Union, 265 Ga. 557, 558 (1) (458 SE2d 95) (1995). 7 statutory elements to the defendant’s case in order to resolve
vagueness challenges. See Dimaya, 138 SCt at 1213-14 (III)
(explaining that the criminal statute at issue in Johnson was
unconstitutionally vague because the sentencing court was required
to focus “on neither the ‘real-world facts’ nor the bare ‘statutory
elements’ of an offense” but rather on the “kind of conduct the
‘ordinary case’ of a crime involves” (citation and punctuation
omitted)); Johnson, 576 U.S. at 603-04 (II) (B) (Court clarified that
it did not doubt the constitutionality of laws that require application
to “real-world conduct” of a particular defendant “on a particular
occasion” (emphasis omitted)).
Other federal appellate courts have also read Johnson and
Dimaya as not overruling the principle that a defendant must be
able to prevail in his as-applied challenge in order to proceed with a
facial challenge, and we find their reasoning persuasive. See United
States v. Cook, 970 F3d 866, 877 (II) (A) (7th Cir. 2020) (“Johnson
did not alter the general rule that a defendant whose conduct is
clearly prohibited by a statute cannot be the one to make a facial
8 vagueness challenge.”); United States v. Bramer, 832 F3d 908, 909-
10 (8th Cir. 2016) (per curiam) (“Though [the defendant] need not
prove that [the statute] is vague in all its applications, our case law
still requires him to show that the statute is vague as applied to his
particular conduct.”); see also Daddario, 307 Ga. at 188 (2) (b)
(concluding that vagueness challenges outside First Amendment
context still must be applied first to defendant’s case after decision
in Johnson).
Here, a person of ordinary intelligence would have fair warning
that Smallwood’s conduct, namely, entering a vehicle that is not
one’s own and taking another’s possessions from within the vehicle,
would be covered by OCGA § 16-8-18. See, e.g., Derrico, 306 Ga. at
636 (2) (b) (reckless conduct statute not vague as applied to
defendant who was the aggressor in road rage incident and struck
victim’s car twice while in traffic); Sabel v. State, 248 Ga. 10, 13 (2)
(282 SE2d 61) (1981) (statute that prohibits defacing government
property was not vague as applied to defendant who spray-painted
state-owned buildings and statues), overruled on other grounds,
9 Rower v. State, 264 Ga. 323, 325 (5) (443 SE2d 839) (1994).
Further, OCGA § 16-8-18 does not authorize or encourage
arbitrary and discriminatory enforcement. Smallwood argues that
the statute can be arbitrarily enforced because law enforcement
officers may arbitrarily choose to charge similar conduct under
OCGA § 16-8-18 or for criminal trespass or both. But vague statutes
invite arbitrary and selective enforcement by allowing law
enforcement officers to charge a crime where there was no crime, not
to charge a crime that has a higher penalty rather than a crime with
a lesser penalty. Cf. Hall v. State, 268 Ga. 89, 94-95 (2) (485 SE2d
755) (1997) (reckless conduct statute unconstitutionally vague
where it enabled law enforcement “to ‘cast a wide net’ and ensnare
an individual whose actions were deemed to be unjust and
unreasonable only when viewed in retrospect” and not based on “any
clear and definite guidelines set forth in the [s]tatute” (citation
omitted)).
OCGA § 16-8-18 does not fail to provide sufficient standards for
law enforcement officers such that they are enabled “to throw as
10 large a net as possible to rid the public of undesirables,” and it does
not support charging as criminal any conduct “absent probable
cause of actual criminality.” Johnson v. Athens-Clarke County, 272
Ga. 384, 387 (3) (529 SE2d 613) (2000) (citation and punctuation
omitted). OCGA § 16-8-18 defines specific standards sufficient for
enforcement without bias, discrimination, or arbitrariness: whether
the defendant entered an automobile or other motor vehicle with the
intent to commit a theft or felony. And in this case, it was stipulated
that Smallwood both entered an automobile and committed a theft
therein. Cf. Satterfield v. State, 260 Ga. 427, 428 (395 SE2d 816)
(1990) (statute criminalizing indecent and disorderly conduct was
unconstitutionally vague because it impermissibly delegated basic
policy matters to law enforcement, judges, and juries on an ad hoc,
subjective basis); Bullock v. Dallas, 248 Ga. 164, 168 (2) (281 SE2d
613) (1981) (anti-loitering ordinance was unconstitutionally vague
where “the tests for ascertaining the line separating guilty from
innocent acts” were “speculative,” and allowed for arresting
defendant who parked her car in a parking lot and conversed with
11 others in a parked car for no more than five minutes (citation and
punctuation omitted)). In sum,
[E]ven if the outermost boundaries of the applicable [statute] may be imprecise in certain situations . . . , we need not make that determination as [Smallwood’s] conduct clearly falls within the “hardcore” of the [statute’s] prescriptions, and one to whose conduct a statute clearly applies may not challenge it on the basis that it may be unconstitutionally vague when applied to others.
Gouge v. City of Snellville, 249 Ga. 91, 93-94 (3) (287 SE2d 539)
(1982). Thus, we conclude that OCGA § 16-8-18 is not void for
vagueness.
3. Alternatively, Smallwood contends that even if OCGA § 16-
8-18 is not void for vagueness, the trial court erred because
Smallwood should have been sentenced for misdemeanor criminal
trespass under OCGA § 16-7-21 (b), rather than for a felony under
OCGA § 16-8-18, after applying the rule of lenity.5 We disagree.
5 At oral argument, the Court questioned whether Smallwood properly
preserved the rule of lenity argument. Since that time, the transcript of the February 18, 2020 hearing and stipulated bench trial has been filed as a supplemental record, and the transcript shows that Smallwood made this argument at the hearing on the general demurrer prior to conviction and entry
12 “The rule of lenity applies when a statute, or statutes,
establishes, or establish, different punishments for the same
offense, and provides that the ambiguity is resolved in favor of the
defendant, who will then receive the lesser punishment.” Banta v.
State, 281 Ga. 615, 617 (2) (642 SE2d 51) (2007). Often described as
a “junior version of the vagueness doctrine,”6 the rule of lenity
derives from the long-standing canon under the common law that
penal statutes are to be strictly construed against the State and in
favor of the accused. See United States v. Lanier, 520 U.S. 259, 266
(II) (117 SCt 1219, 137 LE2d 432) (1997); Gee v. State, 225 Ga. 669,
676 (7) (171 SE2d 291) (1969). See generally Johnson, 576 U.S. at
613-14 (II) (A) (1) (Thomas, J., concurring) (describing emergence of
the rule of lenity in 16th-century England). Thus, ambiguity in
of judgment, thereby preserving it for appeal. See State v. Hanna, 305 Ga. 100, 105 (2) (823 SE2d 785) (2019) (explaining that rule of lenity argument may be raised by filing a general demurrer or in a challenge after conviction). 6 See, e.g., Hanna, 305 Ga. at 102 (2); McNair v. State, 293 Ga. 282, 283
(745 SE2d 646) (2013); Banta v. State, 281 Ga. 615, 617 (2) (642 SE2d 51) (2007); Woods v. State, 279 Ga. 28, 30 (3) (608 SE2d 631) (2005); Brown v. State, 276 Ga. 606, 609 (2) (581 SE2d 35) (2003) (quoting United States v. Lanier, 520 U.S. 259, 266 (II) (117 SCt 1219, 137 LE2d 432) (1997)). 13 whether to sentence a defendant to the greater or lesser offense
“should be resolved in the defendant’s favor.” State v. Hanna, 305
Ga. 100, 103 (2) (823 SE2d 785) (2019) (citations and punctuation
omitted). However, it is important to recognize that “[t]he rule of
lenity is a rule of construction that is applied only when an
ambiguity still exists after having applied the traditional canons of
statutory construction.” Id. at 102 (2) (citation and punctuation
omitted).
Smallwood’s rule of lenity argument is relatively simple –
because his conduct in entering the automobile and committing a
theft therein violates both OCGA § 16-8-18 and OCGA § 16-7-21 (b)
(1), he must be sentenced to misdemeanor criminal trespass under
the rule of lenity. OCGA § 16-7-21 (b) (1) provides:
A person commits the offense of criminal trespass when he or she knowingly and without authority . . . (1) Enters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person for an unlawful purpose[.]
In contrast, OCGA § 16-8-18 states that “[i]f any person shall enter
14 any automobile or other motor vehicle with the intent to commit a
theft or a felony, he shall be guilty of a felony . . . .”
Smallwood misapprehends the rule of lenity. As we have
explained, “that a single act may, as a factual matter, violate more
than one penal statute does not implicate the rule of lenity.” Banta,
281 Ga. at 618 (2). After applying the traditional canons of statutory
construction to the statutes in this case, we conclude that Smallwood
was properly sentenced for the felony of entering an automobile.
When we construe the text of a statutory provision, we start with
the premise that “we must afford the statutory text its ‘plain and
ordinary meaning.’” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751
SE2d 337) (2013) (citation and punctuation omitted). Smallwood’s
conduct, as stipulated, falls under the plain and ordinary meaning
of both the entering-an-automobile and criminal-trespass statutes.
Cf. Banta, 281 Ga. at 618 (2) (concluding that the two statutes at
issue did not define the same offense); Gordon v. State, 334 Ga. App.
633, 640-41 (780 SE2d 376) (2015) (holding that crimes of making a
false statement to law enforcement officers and falsely reporting a
15 crime “provide different grades of punishment for the same criminal
conduct”).
However, the canon of construction that a more specific statute
prevails over a general statute resolves any ambiguity between the
two statutes. “[W]here there is a specific and a general criminal
statute, the rule of lenity is not implicated, and a specific statute
will prevail over a general statute, absent any indication of a
contrary legislative intent.” State v. Nankervis, 295 Ga. 406, 409 (2)
(761 SE2d 1) (2014) (citation and punctuation omitted). See also
Woods v. State, 279 Ga. 28, 30-31 (3) (608 SE2d 631) (2005); Dixon
v. State, 278 Ga. 4, 5 (1) (596 SE2d 147) (2004); Mann v. State, 273
Ga. 366, 368 (1) (541 SE2d 645) (2001).
The criminal trespass statute prohibits the knowing and
unauthorized entry into any one of six places, including a “vehicle,”
for any “unlawful purpose.” This Court has construed an unlawful
purpose as set out in the criminal trespass statute as “a purpose to
violate a criminal law.” Daniel v. State, 301 Ga. 783, 786 (III) (804
SE2d 61) (2017) (citation and punctuation omitted). OCGA § 16-8-
16 18, on the other hand, criminalizes entry into a vehicle “with the
intent to commit a theft or felony[.]” Because OCGA § 16-8-18
criminalizes the entry into an automobile or other motor vehicle and
only for the purpose of committing certain designated crimes, rather
than the more general “unlawful purpose,” Smallwood was properly
sentenced under the more specific OCGA § 16-8-18, and the rule of
lenity was not implicated.7 See Nankervis, 295 Ga. at 410 (2) (rule of
lenity did not require sentencing under general statute prohibiting
the manufacturing of any “controlled substance” rather than the
specific law criminalizing “trafficking methamphetamine”); Woods,
279 Ga. at 30-31 (3) (statute criminalizing attempt to possess
marijuana with intent to distribute was more specific than the
7 Smallwood argues that the criminal trespass statute is more specific
because it prohibits entry into a vehicle “without authority,” whereas OCGA § 16-8-18 is silent on this issue. However, we conclude that the “without authority” language makes no difference to the analysis in this case because Smallwood was charged with “unlawfully enter[ing] a Toyota Camry, a motor vehicle, the property of [the victim], with the intent to commit a theft therein . . . .” He then stipulated at trial that the owner had not given him permission to enter the vehicle. Thus, the State treated the crime of entering an automobile as if it included a “without authority” element such that the primary substantive difference between the two statutes, as applied here, was whether the entry was made with an unlawful purpose or with the intent to commit a theft or felony. 17 sentencing statute governing convictions for the offense of criminal
attempt to commit a felony); Dixon, 278 Ga. at 6 (1) (b) (specific
misdemeanor statutory rape provision applied over general child
molestation statute where the “legislature spoke very directly
towards specific conduct”); Mann, 273 Ga. at 368 (1) (specific
sentencing scheme for defendants convicted of possessing more than
one ounce of cocaine with intent to distribute applied over general
recidivist scheme). Accordingly, we affirm the judgment of the trial
court.
Judgment affirmed. All the Justices concur, except Warren, J., not participating.
Decided November 16, 2020.
OCGA § 16-8-18; constitutional questions. Paulding Superior Court. Before Judge Beavers. Hunter J. Rodgers, Keegan C. Gary, for appellant. Dick R. Donovan, District Attorney, Elisabeth M. Giuliani, Anthony B. Williams, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.