Sallee v. the State
329 Ga. App. 612
| Ga. Ct. App. | 2014Background
- Mark Sallee, an attorney, was convicted by a jury of insurance fraud for submitting a signed proof of loss (and aiding its submission) seeking payment under Kim Grice Pack’s builder’s-risk policy after a house fire destroyed a property sold before the fire.
- Pack sold the property to John Grice on August 4, 2006, receiving about $15,000; the deed recording was delayed and the original deed was later lost.
- Pack’s builder’s-risk policy was with Zurich; after the fire (Aug. 6, 2006) Zurich initially declined coverage because Pack had sold the property, but a claim was later filed on Pack’s behalf by Sallee in Oct. 2007 and a sworn proof of loss was signed Dec. 8, 2008.
- Sallee counseled Pack and Grice that Pack could file a claim because the deed had not been recorded; Sallee submitted the proof of loss, represented Pack in a bad-faith suit against Zurich, and later cashed Zurich’s check (returning part) and kept about $40,000.
- Sallee was acquitted on a second count, was later disbarred, and filed an out-of-time appeal challenging sufficiency of evidence, demurrers, variance, juror misconduct, judicial comment, selective prosecution, judicial bias, and ineffective assistance of counsel.
Issues
| Issue | Sallee’s Argument | State’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for insurance fraud | No affirmative misrepresentation by Sallee; public record showed Pack no longer owned property; Zurich didn’t rely on misrepresentations | Sallee aided/encouraged Pack to file a false proof of loss for purpose of procuring payment; reliance unnecessary | Conviction affirmed — evidence allowed jury to find Sallee aided submission of false written statement with intent to procure payment |
| Demurrers / Plea in abatement (indictment sufficiency) | Indictment failed to allege all essential elements / identify particular fraudulent claim | Indictment tracked OCGA §33-1-9, identified Pack’s Dec. 8, 2008 sworn proof of loss | Denial affirmed — indictment legally sufficient against general and special demurrers |
| Fatal variance between indictment and proof | Indictment charged aiding in making fraudulent representation; State argued failure to correct misstatement at trial (different theory) | Any variance was not material; indictment adequately apprised Sallee; evidence showed he aided in making false statement | No fatal variance; conviction stands |
| Juror misconduct / mistrial | Misconduct by juror communicating with a witness and presence in courtroom prejudiced Sallee | Court removed offending juror, individually polled remaining jurors; remedy adequate | Denial of mistrial not an abuse of discretion; no reversible prejudice |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review)
- McWhorter v. State, 198 Ga. App. 493 (presence/companionship may establish party to crime)
- Roach v. Ga. Farm Bureau Mu. Ins. Co., 173 Ga. App. 229 (insured’s interest terminates on sale)
- Callaway v. State, 247 Ga. App. 310 (reliance not element of criminal insurance fraud)
- Raybon v. State, 309 Ga. App. 365 (standards for demurrer review)
- State v. Marshall, 304 Ga. App. 865 (indictment sufficiency and special demurrer principles)
- State v. Corhen, 306 Ga. App. 495 (indictment must apprise defendant of charges)
- State v. Horsley, 310 Ga. App. 324 (indictment tracking statute sufficient)
- Hernandez v. State, 319 Ga. App. 876 (fatal variance—materiality and substantial-rights test)
- Holcomb v. State, 268 Ga. 100 (presumption of prejudice from juror misconduct; prosecution must show no harm)
- Tolbert v. State, 300 Ga. App. 51 (remedy of removal and individual polling can cure juror misconduct)
- Watson v. State, 289 Ga. 39 (standard for reviewing denial of mistrial)
- Anthony v. State, 282 Ga. App. 457 (judge may direct witnesses; not every question is an opinion on credibility)
- Finley v. State, 286 Ga. 47 (trial judge may question witnesses to clarify testimony)
- Ellis v. State, 292 Ga. 276 (curative instructions can negate trial court comment error)
- Lee v. State, 177 Ga. App. 698 (selective/vindictive prosecution standards)
- Hampton v. State, 279 Ga. 625 (ineffective-assistance legal standard)
- Allen v. State, 277 Ga. 502 (jurors presumed to follow instructions)
- Leonard v. State, 292 Ga. 214 (failure to pursue meritless motion not ineffective assistance)
- Ventura v. State, 284 Ga. 215 (futile objections do not establish deficient performance)
- Pope v. State, 179 Ga. App. 739 (ethical rule violations not automatically criminal)
- Goodwin v. Cruz-Padillo, 265 Ga. 614 (must show omitted evidence would have been favorable to prove prejudice)