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McNair v. State

The defendant was entitled to the rule of lenity since his conduct as charged subjected him to prosecution under both O.C.G.A. § 16-9-31 a 1 financial transaction card theft and O.C.G.A. § 16-9-121 a 1 identity theft, which provide different grades of punishment for the same criminal acts.

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This case returns to us from the Supreme Court of Georgia in order to determine whether, under the particular facts of the case sub judice, there exists ambiguity in the statutes defining the crimes of identity fraud1 and financial-transaction-card theft2 such that the trial court was required to apply the rule of lenity when sentencing appellant Todd Christopher McNair. Because we answer this question in the affirmative, we reverse the judgment and remand the case to the trial court for resentencing in accordance with this opinion.

The relevant facts and procedural history are as follows. The victim was lost and stopped her vehicle in order to ask McNair and his two companions, an adult female and a juvenile female, for directions. And after providing her with the requested information, McNair asked the victim if she was willing to drive him and his friends to the mall. The victim agreed to do so, and the adult female companion initially sat in the front-passenger seat, while McNair entered the back of the vehicle. But almost immediately, McNair asked to change seats and ended up in the front-passenger seat—where the victim’s purse was sitting in the floorboard.

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