## Facts

- A driver stopped to ask Todd Christopher McNair and two companions for directions; after giving directions, McNair asked for a ride to a mall, and she agreed.
- During the ride, McNair moved into the front passenger seat where the driver’s purse was on the floorboard.
- After arriving and exiting the car, McNair told his companions he “got me some money today,” while holding the driver’s wallet containing cash and credit cards.
- Inside the mall, the group selected items; a companion testified McNair initially took the wallet from the purse, and the companions used the victim’s credit cards to make purchases.
- McNair was charged by accusation with identity fraud for possessing the victim’s financial-transaction-card number without authorization and with intent to use it fraudulently.
- A jury convicted McNair; the trial court sentenced him for identity fraud and rejected his request to apply the rule of lenity and sentence him under the lesser-penalty statute for financial-transaction-card theft.
- After appellate proceedings and a remand directing consideration of lenity as between the two statutes, the Court of Appeals addressed only whether lenity applied to the sentence on these facts.

## Issues

1. Whether McNair’s conduct was equally covered by the identity-fraud statute and the financial-transaction-card-theft statute, creating ambiguity as to punishment.
2. If so, whether the rule of lenity required sentencing under the statute providing the lesser punishment.

## Decision

- The Court of Appeals held that, as applied to McNair’s conduct, the identity-fraud and financial-transaction-card-theft statutes overlapped in a way that created ambiguity regarding punishment.
- The court ruled that the rule of lenity required imposing the lesser punishment.
- The court reversed the sentence and remanded for resentencing consistent with lenity (i.e., under the financial-transaction-card-theft penalty scheme).

## Legal Principles

- The rule of lenity applies when statutory ambiguity results in different punishments for the same conduct; it is not limited to misdemeanor-versus-felony conflicts.
- Where a single course of conduct is equally described by two criminal statutes that prescribe different punishments, ambiguity as to the applicable penalty must be resolved in favor of the defendant.
- Possessing or using a financial-transaction-card number with fraudulent intent (identity fraud) may overlap, on particular facts, with taking/withholding a financial transaction card without consent with intent to use it (financial-transaction-card theft); when the overlap is complete for punishment purposes, lenity controls sentencing.

## Conclusion

Because McNair’s conduct involving unauthorized possession and use of a victim’s credit card and its number was equally punishable under two statutes carrying different penalties, the court required application of the rule of lenity and remanded for resentencing under the lesser-penalty statute.


McNair v. State, 757 S.E.2d 141 (Ga. Ct. App. 2014)