Scott v. State, 306 Ga. 507

Background

A Fulton County jury acquitted Akeem Scott of aggravated sexual battery but convicted him on four counts of child molestation (OCGA § 16-6-4(a)(1)) based on one bedroom incident (three counts: breasts, buttocks, vagina) and a bathroom incident (one count).
Scott was sentenced to 20 years on each child-molestation count, ordered consecutively, yielding 40 years to serve and 40 years suspended.
On direct appeal the Court of Appeals rejected Scott’s merger claim, applying the Drinkard “required evidence” test and concluding separate touches of distinct body parts are separate offenses.
Scott petitioned for certiorari to the Georgia Supreme Court, arguing the Court of Appeals used the wrong legal test for multiple counts of the same statutory offense and that the unit-of-prosecution analysis governs merger in that context.
The Georgia Supreme Court granted certiorari limited to the merger issue, vacated Division 2 of the Court of Appeals’ opinion, and remanded for the Court of Appeals to determine and apply the proper unit-of-prosecution for child molestation to resolve how many convictions/sentences may stand.

Issues

Issue	Scott's Argument	State's Argument	Held
Whether multiple counts of the same statutory offense (child molestation) merge when they arise from a single continuous course of conduct	Counts based on uninterrupted touching of multiple body parts during one episode should merge into a single conviction because the unit of prosecution is the continuous act	Counts are distinct because each count required proof of touching a different body part; thus no merger under Drinkard	The Court rejected use of the Drinkard required-evidence test for multiple counts of the same statute and remanded for a unit-of-prosecution analysis to determine merger
Appropriate legal test for merger when same statutory offense is charged in multiple counts	Apply unit-of-prosecution analysis to identify the "precise act or conduct" criminalized by the statute	Continue to apply Drinkard required-evidence or related tests used by Court of Appeals	Held that Drinkard is inapplicable where same statutory offense is charged; unit-of-prosecution governs
Whether Court of Appeals’ precedent applying Drinkard/actual-evidence to same-offense multiple counts is correct	Argued those precedents are legally erroneous for same-offense merger questions	Relied on those precedents to reject merger	The Supreme Court vacated the Court of Appeals’ analysis and directed a unit-of-prosecution inquiry on remand
Preservation / reviewability of Scott's public-trial claim re: courtroom closure under OCGA § 17-8-54	Raised Sixth Amendment right to public trial; argued closure of courtroom to some spectators warranted review	Court of Appeals found the claim waived; State defended statutory closure under § 17-8-54	Supreme Court declined further review on that issue here but the concurring opinion noted the issue merits future review when preserved and urged attention to First/Sixth Amendment standards (Globe Newspaper / Waller)

Key Cases Cited

Drinkard v. Walker, 281 Ga. 211 (establishing the "required evidence" test for determining whether one offense is included in another)
Smith v. State, 290 Ga. 768 (discussing unit-of-prosecution and limits of applying the required-evidence test)
State v. Marlowe, 277 Ga. (discussing unit-of-prosecution principles)
Coates v. State, 304 Ga. 329 (recognizing unit-of-prosecution analysis)
Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596 (First Amendment prohibits mandatory courtroom closure for minor sex-victim testimony; requires case-by-case determination)
Waller v. Georgia, 467 U.S. 39 (Sixth Amendment closure requires overriding interest, narrow tailoring, consideration of alternatives, and findings)
Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501 (access-to-court proceedings jurisprudence informing closure standards)
Presley v. Georgia, 558 U.S. 209 (discussing relationship of First and Sixth Amendment public-trial rights)