Heather Kimbrough v. State
336 Ga. App. 381
Ga. Ct. App.2016Background
- Defendants Heather Kimbrough and Melissa Mayfield were indicted under Georgia RICO (OCGA § 16-14-4(b)) and multiple counts of unauthorized distribution of controlled substances (OCGA § 16-13-43) tied to prescriptions received from clinic Executive Wellness and Rehabilitation.
- RICO count (Count 1) tracked statutory language, alleging participation in the enterprise through a pattern of racketeering consisting of unlawfully obtaining oxycodone by withholding information from prescribing practitioners; remaining counts alleged specific predicate acts.
- The defendants filed general and special demurrers to the RICO count; the trial court denied them and the defendants sought interlocutory appellate review.
- The State urged dismissal of the appeal based on alleged untimely filing of demurrers by Kimbrough.
- The Court of Appeals considered (1) whether the appeal should be dismissed for untimeliness and (2) whether Count 1 sufficiently alleged the elements of RICO and adequately identified predicate acts and the manner of participation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Should appeal be dismissed for untimely demurrer filing? | State: Kimbrough’s special demurrer was untimely and appeal should be dismissed. | Defendants: No record showing arraignment date; appeal should not be dismissed. | Court: Declined to dismiss—arraignment date not in record and untimely motion is not a jurisdictional ground for dismissal. |
| Does Count 1 fail general demurrer (insufficiently state offense)? | State: Count 1 tracks statutory language and is sufficient. | Defendants: Count 1 is too vague; fails to charge RICO adequately. | Court: General demurrer denied—indictment tracking statute is sufficient under OCGA § 17-7-54(a) and precedent. |
| Does Count 1 fail special demurrer for lack of detail on participation and enterprise nexus? | State: Count 1 plus incorporated counts sufficiently describe participation and nexus ("through" the enterprise). | Defendants: Count 1 does not specify how they participated or how predicate acts relate to the enterprise. | Court: Denied special demurrer—allegations and incorporated predicate counts sufficiently apprise defendants and show nexus. |
| Does Count 1 fail special demurrer for unclear predicate acts (hydrocodone vs. oxycodone)? | State: Predicate acts are specified as unlawfully obtaining oxycodone; other allegations are surplusage. | Defendants: Some counts (against Mayfield) allege hydrocodone, creating confusion about predicate acts. | Court: Denied—RICO count specifies oxycodone as the pattern; hydrocodone counts, if read in, are mere surplusage and do not vitiate indictment. |
Key Cases Cited
- Jackson v. State, 316 Ga. App. 588 (Ga. App. 2012) (timing of general demurrer)
- Palmer v. State, 282 Ga. 466 (Ga. 2007) (special demurrer timing rule)
- Chancey v. State, 256 Ga. 415 (Ga. 1987) (rejecting vagueness challenge to "participate in" language in Georgia RICO)
- Wyatt v. State, 295 Ga. 257 (Ga. 2014) (indictment tracking statutory language survives general demurrer)
- Poole v. State, 326 Ga. App. 243 (Ga. App. 2014) (test for general demurrer: can defendant admit and still be innocent)
- Delaby v. State, 298 Ga. App. 723 (Ga. App. 2009) (scope and purpose of special demurrer; need for particulars when generic terms used)
- Pittman v. State, 302 Ga. App. 531 (Ga. App. 2010) (one count tracking RICO language plus other counts with detailed predicates sufficient)
- Williams Gen. Corp. v. Stone, 279 Ga. 428 (Ga. 2005) (federal RICO authority persuasive in interpreting Georgia RICO)
- United States v. McDonough, 959 F.2d 1137 (1st Cir. 1992) (federal courts rejecting similar RICO indictment challenges)
- United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983) (federal RICO indictment sufficiency)
- Fair v. State, 284 Ga. 165 (Ga. 2008) (surplusage in indictment does not vitiate charge)
- Corhen v. State, 306 Ga. App. 495 (Ga. App. 2010) (surplusage doctrine and omission of unnecessary allegations)