## Facts

- Todd Christopher McNair was prosecuted in Georgia for identity fraud under O.C.G.A. § 16-9-121 based on theft and use of another person’s credit card.
- McNair asserted at sentencing that the same conduct could be punished under either the identity-fraud statute or the financial-transaction-card-theft statute, O.C.G.A. § 16-9-31.
- He argued that, because the statutes imposed different felony punishments for the same misconduct, the rule of lenity required sentencing under the statute carrying the lesser punishment.
- The trial court rejected the lenity argument and sentenced McNair as a recidivist to 10 years (five to serve) for identity fraud.
- The Court of Appeals affirmed, reasoning the rule of lenity did not apply because both statutes were felonies and therefore did not address whether the statutes were ambiguous as applied to McNair’s conduct.
- The Supreme Court of Georgia granted certiorari to review whether lenity can apply when both overlapping statutes are felonies but carry different punishments.

## Issues

1. Whether the rule of lenity can apply when two overlapping criminal statutes are both classified as felonies but impose different punishments for the same conduct.
2. Whether the Court of Appeals erred by treating felony classification as a categorical bar to lenity instead of analyzing ambiguity and punishment differences.

## Decision

- The Supreme Court of Georgia reversed the Court of Appeals.
- The court held the Court of Appeals erred by concluding lenity is inapplicable merely because both statutes are felonies.
- The court remanded for the Court of Appeals to decide the merits of McNair’s rule-of-lenity claim (including whether an ambiguity exists after applying ordinary interpretive tools).

## Legal Principles

- The rule of lenity is a rule of statutory construction grounded in fair notice.
- Lenity applies when a statute, or statutes, establish different punishments for the same offense and ambiguity remains as to which punishment applies; the ambiguity is resolved in favor of the defendant receiving the lesser punishment.
- Lenity does not apply where the relevant statutory provisions are unambiguous, and it is used only after traditional canons of construction fail to resolve the ambiguity.
- Lenity is not limited to conflicts between misdemeanor and felony provisions; it may apply even when both statutes are felonies, so long as differing punishments and unresolved ambiguity are present.

## Conclusion

The Supreme Court of Georgia rejected a categorical rule that lenity cannot apply when overlapping statutes are both felonies, reversed the affirmance of McNair’s sentence on that basis, and remanded for consideration of whether statutory ambiguity and differing punishments warrant lenity on the merits.


McNair v. State, 745 S.E.2d 646 (Ga. 2013)