Gordon v. the State
337 Ga. App. 64
Ga. Ct. App.2016Background
- Officer stopped vehicle for nonworking brake lights; smelled alcohol and saw an open beer bottle. Gordon handed over a partially full beer bottle and was placed under arrest for an open-container violation.
- As officer attempted to handcuff Gordon, Gordon struggled, tried to flee, and during the struggle attempted to burn the officer’s eye with a lit cigarette; bystanders assisted and a taser was used to subdue Gordon.
- After arrest and subdual, the officer searched Gordon and found cocaine; Gordon pleaded guilty to possession of cocaine.
- Indictment charged Gordon with aggravated assault (attempting to insert a lit cigarette into the deputy’s eye), felony obstruction of an officer (doing violence to the officer during lawful discharge of duties), and misdemeanor obstruction; several traffic-related charges were nolle prossed.
- Following a bench trial Gordon was convicted of aggravated assault and both obstruction counts; he was sentenced to consecutive ten years for cocaine and ten years for aggravated assault, with obstruction sentences concurrent.
- Gordon appealed, arguing (1) the rule of lenity required sentencing only for felony obstruction (not aggravated assault) because both were based on the same conduct, and (2) the convictions should have merged as a matter of fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the rule of lenity requires sentencing only for felony obstruction instead of aggravated assault | Gordon: statutes are ambiguous and the same conduct supports both offenses, so lenity mandates the lesser punishment (obstruction) | State: statutes are unambiguous and aggravated assault and felony obstruction require different elements; lenity does not apply | Court: No lenity — statutes are distinct; aggravated assault requires an object likely to cause serious injury while felony obstruction requires violence against an officer in lawful duty, so different punishments may apply |
| Whether aggravated assault and felony obstruction merge as a matter of fact for sentencing | Gordon: convictions arise from same act and thus should merge to prevent multiple punishments | State: Drinkard/Blockburger test shows each offense requires proof of an element the other does not, so they do not merge | Court: No merger — elements differ (aggravated assault requires use of an instrument likely to cause serious bodily injury; felony obstruction requires targeting an officer performing lawful duties), so separate sentences permitted |
Key Cases Cited
- Gordon v. State, 334 Ga. App. 633 (whole court) (rule of lenity and statutory analysis)
- United States v. Lanier, 520 U.S. 259 (canon of strict construction/rule of lenity explained)
- Banta v. State, 281 Ga. 615 (lenity and distinguishing overlapping statutes)
- Drinkard v. Walker, 281 Ga. 211 (adopting required-evidence/Blockburger test for factual merger)
- Blockburger v. United States, 284 U.S. 299 (required-evidence test for double jeopardy/merger)
- Taylor v. State, 327 Ga. App. 882 (distinguished — aggravated assault on peace officer contained different statutory element)