published Thursday, July 4th, 2013

Georgia Supreme Court rules for Whitfield County man

A Georgia Supreme Court ruling could prompt a new trial for a Whitfield County man convicted of going on a shopping spree with a stolen credit card.

And the unanimous reversal of an appeals court's ruling against 33-year-old Todd McNair could make it easier for other people to get lighter sentences when faced with two felonies for the same crime.

Under a doctrine called the rule of lenity, a court faced with an ambiguous criminal statute that sets out multiple or inconsistent punishment must favor the lesser punishment. The Georgia Court of Appeals recently has been finding that when a criminal could be charged with different felonies for the same crime, the rule doesn't apply.

State Supreme Court justices decided Monday that wasn't true, saying: "The court of appeals was wrong," and sending the McNair case back to the lower court.

McNair's attorney, public defender Mike McCarthy, said this decision could open the door for others charged with financial fraud who were looking at 10 years in jail to receive lighter sentences under another statute. There are multiple cases in the circuit, which covers Whitfield and Murray counties, that McCarthy has been waiting to take forward until the high court ruled in McNair's case.

In June 2009, Georgia Supreme Court records show, McNair agreed to give a woman named Joanne Wilcutt directions to the Interstate in exchange for a ride to the mall.

During the ride, police believe McNair slid Wilcutt's purse toward him and took her credit card.

McNair, who was with two women, went on a shopping spree at JCPenney. Four months later, he was charged with identity fraud, and a jury found him guilty the next year.

McNair was sentenced under the identity fraud statute, which carries a maximum sentence of 10 years.

But his attorney argued he should have been charged under the financial transaction card theft statute because it more accurately explained his crime and carried a maximum sentence of three years. McCarthy cited the rule of lenity for the argument.

A state court rejected the argument and gave McNair 10 years, and the Georgia Court of Appeals said the rule of lenity didn't apply to him.

With the state Supreme Court's reversal, the appeals court will decide whether McNair should receive a new trial because the judge didn't give the jury the option of the lesser charge.

Conasauga Judicial Circuit District Attorney Bert Poston said what the Supreme Court did was define that the rule should apply in any circumstance when two charges exist for the same crime.

This isn't the first time that Georgia's highest court has ruled in McNair's favor.

In 2009, the Supreme Court threw out McNair's conviction for a left-turn violation. A jury had acquitted him on other charges, and the justices found the turn-lane violation conviction was unconstitutional because it was vague and violated McNair's due process.

Contact staff writer Joy Lukachick at jlukachick@timesfreepress.com or 423-757-6659.

about Joy Lukachick Smith...

Joy Lukachick is the city government reporter for the Chattanooga Times Free Press Since 2009, she's covered breaking news, high-profile trials, stories of lost lives and of regained hope and done investigative work. Raised near the Bayou, Joy’s hometown is along the outskirts of Baton Rouge, La. She has a bachelor’s degree in mass communication from Louisiana State University. While at LSU, Joy was a staff writer for the Daily Reveille. When Joy isn't chasing ...

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