CourtListener 10679990

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In the Supreme Court of Georgia

Decided: November 7, 2023

S23A1137. THOMAS v. THE STATE.

COLVIN, Justice.

Appellant Larry Edward Thomas appeals his convictions for

felony murder in connection with the vehicular deaths of Krystof

Krawczynski and Elizbieta Gurtler-Krawczynski. 1 On appeal,

1 The car crash occurred on January 28, 2016. On April 20, 2016, a
Gwinnett County grand jury charged Appellant and his son, Jesse Cole
Thomas (“Jesse”), in a 23-count indictment. Appellant was charged with six
counts of felony murder (Counts 1-6), six counts of homicide by vehicle (Counts
7-12), fleeing or attempting to elude a police officer (Count 13), serious injury
by vehicle (Count 14), driving under the influence of a controlled substance
(Count 22), and driving under the influence of drugs less safe (Count 23). The
grand jury also charged both Appellant and Jesse with conspiracy to commit a
crime (Count 15), trafficking methamphetamine (Count 16), trafficking heroin
(Count 17), possession of marijuana with intent to distribute (Count 18),
possession of cocaine (Count 19), possession of lysergic acid diethylamide
(Count 20), and possession of a firearm or knife during commission of a felony
(Count 21). Jesse entered a guilty plea to the drug charges prior to trial and
testified for the State at Appellant’s trial.
Before Appellant’s trial, Counts 17 and 20 were nol prossed. At a jury
trial held from April 25 through May 5, 2022, the trial court granted
Appellant’s motion for directed verdict as to Counts 3, 4, 15, 16, and 21. The
jury found Appellant guilty of felony murder (Counts 1-2), homicide by vehicle
Appellant contends that the trial court erred in sentencing him for

two counts of felony murder (Counts 1 and 2) rather than for two

counts of homicide by vehicle (Counts 7 and 8) because both sets of

charges were predicated on fleeing or attempting to elude a police

officer, and thus the rule of lenity required that he receive the lesser

penalty. See Peacock v. State, 314 Ga. 709, 723 (5) (878 SE2d 247)

(2022) (explaining that, when statutes establish “different

punishments for the same offense,” creating ambiguity as to which

(Counts 7-12), fleeing or attempting to elude a police officer (Count 13), serious
injury by vehicle (Count 14), possession of marijuana, as a lesser included
offense of possession of marijuana with intent to distribute (Count 18), and
driving under the influence (Counts 22-23).
On May 5, 2022, the trial court sentenced Appellant to consecutive terms
of life in prison for Counts 1 and 2 (felony murder), and concurrent prison
terms of ten years, 12 months, one year, and 12 months for Counts 14, 18, 19,
and 22 (serious injury by vehicle, possession of marijuana with intent to
distribute, possession of cocaine, and driving under the influence of a controlled
substance), respectively. The court vacated by operation of law Counts 7-12
(homicide by vehicle) and merged for sentencing purposes Count 13 (fleeing or
attempting to elude a police officer) with Counts 1 and 2 (felony murder), and
Count 23 (driving under the influence of drugs less safe) with Count 22 (driving
under the influence of a controlled substance).
Appellant timely filed a motion for new trial on May 6, 2022, and
amended it through new counsel on February 7, 2023. Following a hearing on
February 10, 2023, the trial court denied the amended motion for new trial on
May 17, 2023. Appellant timely filed a notice of appeal directed to this Court
on June 1, 2023. This appeal was docketed to this Court’s August 2023 term
and submitted for a decision on the briefs.
2
penalty applies, the rule of lenity requires that the court resolve the

ambiguity “in favor of the defendant, who will then receive the lesser

punishment” (citation and punctuation omitted)). For the reasons

that follow, Appellant’s claim fails.

The indictment charged Appellant with one count of felony

murder for each of the two victims (Counts 1 and 2). See OCGA § 16-

5-1 (c) (“A person commits the offense of murder when, in the

commission of a felony, he or she causes the death of another human

being irrespective of malice.”). Each count of felony murder was

predicated on fleeing or attempting to elude a police officer as

alleged in Count 13, which charged felony fleeing or eluding in

violation of former OCGA § 40-6-395 (b) (5) (A). See former OCGA §

40-6-395 (b) (5) (A) (i)-(iii) (2012) (providing that a driver commits

felony fleeing or eluding a police officer if, “while fleeing or

attempting to elude a pursing police vehicle or police officer” in

violation of OCGA § 40-6-395 (a), the driver, among other things,

“[o]perates his or her vehicle in excess of 20 miles an hour above the

posted speed limit,” “[s]trikes or collides with another vehicle or

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pedestrian,” or “[f]lees in traffic conditions which place the general

public at risk of receiving serious injuries”).2 Appellant was also

charged with one count of first-degree homicide by vehicle for each

of the two victims (Counts 7 and 8). See OCGA § 40-6-393 (a)

(providing that a person commits the offense of homicide by vehicle

in the first degree if he or she, “without malice aforethought, causes

the death of another person through the violation of” certain

enumerated traffic offenses, including a violation of OCGA § 40-6-

395 (a)). Each first-degree homicide-by-vehicle count was predicated

on misdemeanor fleeing or attempting to elude a police officer in

violation of OCGA § 40-6-395 (a). See OCGA § 40-6-395 (a)

(providing that a “driver of a vehicle” is guilty of fleeing or

attempting to elude a police officer if he or she “willfully . . . fail[s]

or refuse[s] to bring his or her vehicle to a stop or otherwise . . . flee[s]

or attempt[s] to elude a pursuing police vehicle or police officer when

2 The version of the statute enacted in 2012 applied when Appellant

committed the offenses in 2016. The statute was amended in 2022. In 2022,
“this subparagraph was redesignated as subparagraph (c), and additional
aggravating factors were included.” Sosebee v. State, __ Ga. __, __ (1) n.6 (__
SE2d __) (2023); see Ga. L. 2022, p. 100, § 1.
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given a visual or audible signal to bring the vehicle to a stop”); OCGA

§ 40-6-395 (b) (1) (2012) (providing that a violation of OCGA § 40-6-

395 (a) is a misdemeanor).

On appeal, Appellant contends that “[t]he rule of lenity applies

because — as indicted — a single offense has been criminalized by

two different statutory provisions, one of which provides for a lesser

punishment than the other.” Specifically, Appellant argues that the

felony-murder counts (Counts 1 and 2) and the homicide-by-vehicle

counts (Counts 7 and 8) criminalized the same offense of killing the

victims during the commission of fleeing or attempting to elude a

police officer.

This argument, however, is foreclosed by our recent decision in

Sosebee v. State, __ Ga. __, __ (1) (__ SE2d __) (2023) (rejecting the

appellant’s rule-of-lenity argument, where he contended that, “‘as

indicted[,]’ the statute defining felony murder and the statute

defining homicide by vehicle in the first degree impose ‘different

punishments for identical criminal conduct’”). As we explained in

Sosebee, the felony-murder and homicide-by-vehicle statutes “are

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not ambiguous and do not require different punishments for the

same conduct” because “[t]he offense of felony murder . . .

criminalizes causing the death of a human being ‘in the commission

of a felony,’ but the offense of homicide by vehicle in the first degree

under OCGA § 40-6-393 (a) does not.” Id. at __ (1) (footnote omitted).

Elaborating on that point, we explained that homicide by vehicle

under OCGA § 40-6-393 (a) “criminalizes causing the death of

another person through [a] violation of . . . [OCGA §] 40-6-395 (a),”

which “is a misdemeanor,” whereas felony murder predicated on

felony fleeing or eluding criminalizes causing the death of another

person in the commission of “[f]elony-level fleeing under former

OCGA § 40-6-395 (b) (5) (A), which . . . has elements in addition to

those required to prove a violation of misdemeanor fleeing under

OCGA § 40-6-395 (a).” Id. at __ (1). Accordingly, as in Sosebee, “[t]he

rule of lenity simply has no application in this case, and this claim

of error fails.” Id. at __ (1).

Judgment affirmed. All the Justices concur.

317 Ga. 700
FINAL COPY

S23A1137. THOMAS v. THE STATE.

COLVIN, Justice.

Appellant Larry Edward Thomas appeals his convictions for

felony murder in connection with the vehicular deaths of Krystof

Krawczynski and Elizbieta Gurtler-Krawczynski.1 On appeal,

1 The car crash occurred on January 28, 2016. On April 20, 2016, a
Gwinnett County grand jury charged Appellant and his son, Jesse Cole
Thomas (“Jesse”), in a 23-count indictment. Appellant was charged with six
counts of felony murder (Counts 1-6), six counts of homicide by vehicle (Counts
7-12), fleeing or attempting to elude a police officer (Count 13), serious injury
by vehicle (Count 14), driving under the influence of a controlled substance
(Count 22), and driving under the influence of drugs less safe (Count 23). The
grand jury also charged both Appellant and Jesse with conspiracy to commit a
crime (Count 15), trafficking methamphetamine (Count 16), trafficking heroin
(Count 17), possession of marijuana with intent to distribute (Count 18),
possession of cocaine (Count 19), possession of lysergic acid diethylamide
(Count 20), and possession of a firearm or knife during commission of a felony
(Count 21). Jesse entered a guilty plea to the drug charges prior to trial and
testified for the State at Appellant’s trial.
Before Appellant’s trial, Counts 17 and 20 were nol prossed. At a jury
trial held from April 25 through May 5, 2022, the trial court granted
Appellant’s motion for directed verdict as to Counts 3, 4, 15, 16, and 21. The
jury found Appellant guilty of felony murder (Counts 1-2), homicide by vehicle
(Counts 7-12), fleeing or attempting to elude a police officer (Count 13), serious
injury by vehicle (Count 14), possession of marijuana, as a lesser included
offense of possession of marijuana with intent to distribute (Count 18), and
Appellant contends that the trial court erred in sentencing him for

two counts of felony murder (Counts 1 and 2) rather than for two

counts of homicide by vehicle (Counts 7 and 8) because both sets of

charges were predicated on fleeing or attempting to elude a police

officer, and thus the rule of lenity required that he receive the lesser

penalty. See Peacock v. State, 314 Ga. 709, 723 (5) (878 SE2d 247)

(2022) (explaining that, when statutes establish “different

punishments for the same offense,” creating ambiguity as to which

penalty applies, the rule of lenity requires that the court resolve the

ambiguity “in favor of the defendant, who will then receive the lesser

driving under the influence (Counts 22-23).
On May 5, 2022, the trial court sentenced Appellant to consecutive terms
of life in prison for Counts 1 and 2 (felony murder), and concurrent prison
terms of ten years, 12 months, one year, and 12 months for Counts 14, 18, 19,
and 22 (serious injury by vehicle, possession of marijuana with intent to
distribute, possession of cocaine, and driving under the influence of a controlled
substance), respectively. The court vacated by operation of law Counts 7-12
(homicide by vehicle) and merged for sentencing purposes Count 13 (fleeing or
attempting to elude a police officer) with Counts 1 and 2 (felony murder), and
Count 23 (driving under the influence of drugs less safe) with Count 22 (driving
under the influence of a controlled substance).
Appellant timely filed a motion for new trial on May 6, 2022, and
amended it through new counsel on February 7, 2023. Following a hearing on
February 10, 2023, the trial court denied the amended motion for new trial on
May 17, 2023. Appellant timely filed a notice of appeal directed to this Court
on June 1, 2023. This appeal was docketed to this Court’s August 2023 term
and submitted for a decision on the briefs.
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punishment” (citation and punctuation omitted)). For the reasons