July 2, 2013

State Supreme Court decision could mean new trial for Whitfield man

Rachel Brown

— A Whitfield County man convicted of identity fraud for stealing a woman’s bank card to go on a $1,000 shopping spree at Walnut Square Mall in 2009 will have his case reviewed after the state Supreme Court on Monday said the appeals court misapplied the law.

In May 2010, a Whitfield County jury found Todd Christopher McNair guilty of identity fraud. The court sentenced him to five years in prison plus five on probation. The charge carries up to 10 years in prison or up to $100,000 in fines. McNair’s attorney, Public Defender Mike McCarthy, argued that under the “rule of lenity” McNair should be sentenced instead for financial transaction card theft, which carries up to three years in prison or up to $5,000 in fines.

According to a summary prepared by a Supreme Court information officer, Black’s Law Dictionary defines the “rule of lenity” as a “judicial doctrine requiring that when a court is faced with an ambiguous criminal statute that sets out multiple or inconsistent punishments, it must favor the more lenient punishment.”

The Supreme Court on Monday remanded the case back to the appeals court for review. Justice Robert Benham wrote that the appeals court has incorrectly ruled several times “that the rule of lenity does not apply when the differing punishments are all felony-level. ... This court has never held, however, that the rule of lenity only applies when the punishments are as between a misdemeanor and a felony.”

McCarthy said the Supreme Court’s ruling could affect the outcome of other cases in which lenity is an issue.

“We have several cases that have been waiting for this decision to come because they involve the same issue right here in Dalton,” he said. “Now that we’ve gotten this decision, which we’re very happy about, we’ll be able to go forward on these cases.”

The ruling doesn’t automatically mean McNair will be re-sentenced on a lesser charge. District Attorney Bert Poston said prosecutors will argue that even if the rule applies, the facts show McNair still should have been convicted of the more stringent charge.

“If we prevail, the conviction will stand as is,” Poston said. “If, however, the Court of Appeals believes that the jury should have had the option to convict on the lesser charge, the entire conviction will be set aside, and McNair will get a new trial.”

This isn’t the first time McNair has had a case before the Supreme Court. In 2007, McNair was arrested in Dalton and charged with DUI, obstruction of an officer and making an improper left turn. A jury in March 2008 found him not guilty of DUI and obstruction, but they convicted him on the turning violation for pulling into the outermost lane rather than the innermost lane.

He appealed to the Supreme Court, which unanimously ruled in 2009 that Georgia’s left turn law was vague and unconstitutional.