Clarke v. State
317 Ga. App. 471
| Ga. Ct. App. | 2012Background
- Clarke, an attorney, worked with Sliz/McKinney starting May 2003 and originally paid rent while handling indigent defense clients.
- In November 2003, Clarke began receiving a $50,000 annual salary from the firm and stopped paying rent; the firm treated her as an employee and stated her fees were the firm’s property.
- In May 2008, Clarke was indicted on 43 counts of theft by taking related to indigent defense payments that she did not transmit to the firm; the trial court directed a verdict on some counts and the jury found nine felony counts guilty.
- The indictment alleged theft by taking from amounts earned for indigent defense but did not specify dates; Clarke contends she acted under a claim of right and that there was not sufficient criminal intent.
- At trial and on appeal, Clarke argued lack of sufficient evidence of intent, an improper ownership/employee relationship, and ineffective assistance of counsel for not filing a special demurrer to the indictment.
- The appellate court affirmed the conviction, rejecting Clarke’s challenges to sufficiency of evidence, contract/ownership issues, and the ineffective assistance claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there sufficient intent to support theft by taking? | Clarke lacked criminal intent; she believed she was entitled to the funds. | State showed Clarke’s actions - billing, timekeeping, and deposits - breached the claim of right. | Yes; evidence supported intent beyond reasonable doubt. |
| Were the indigent defense funds Clarke received the property of Sliz/McKinney via implied contract/employee relation? | There was no written contract; Clarke was an independent contractor. | Oral agreement existed; Clarke became an employee in 2003 with duties to remit proceeds to firm. | Evidence supported the firm’s ownership of the funds; waiver of contract formalities did not bar enforcement. |
| Did Clarke receive ineffective assistance of counsel for not filing a special demurrer to the indictment? | A demurrer could have avoided potential statute of limitations issues. | Counsel reasonably concluded the language was immaterial; no prejudice shown. | No ineffective assistance; failure to demur did not prejudice defense. |
| Is the Statute of Frauds implicated given the alleged oral agreement and performance? | Oral agreement may be unenforceable under Statute of Frauds. | Full performance by Sliz/McKinney and Clarke accepted; exception applies. | Not implicated; contract performance исключes Statute of Frauds. |
| Did the lack of a formal partnership between Sliz and McKinney foreclose ownership arguments? | No partnership required to show firm ownership of funds. | Firms’ arrangement supports ownership claim. | Waived issue; evidence supported ownership finding. |
Key Cases Cited
- Suggs v. State, 272 Ga. 85 (Ga. 2000) (intent may be inferred from circumstantial evidence in criminal fraud)
- Dawson v. State, 271 Ga. App. 217 (Ga. App. 2005) (fraudulent intent distinctions and related standards)
- Brown v. State, 302 Ga. App. 641 (Ga. App. 2010) (criminal intent to deprive may be inferred from circumstances)
- Robbins v. State, 290 Ga. App. 323 (Ga. App. 2008) (counsel not ineffective for not filing a demurrer for indictment issues)
- Strickland v. Washington, 466 U.S. 668 (Supreme Court 1984) (deficient performance must prejudice the defense)
- Amax, Inc. v. Fletcher, 166 Ga. App. 789 (Ga. App. 1983) (contract performance can remove operation of Statute of Frauds)