Dover v. StateDover v. State
Dover and Barnes appeal their convictions for multiple offenses.
The Cagle family, Jimmy Lewis Cagle, his wife, Mary Elaine Cagle, and their son and daughter, Jimmy Lewayne Cagle and Lisa Cagle Reid, were charged along with Dover, Barnes and six others in Floyd County with violations of the Georgia RICO Act,
Favorably to the verdict, the evidence showed that Barnes solicited the Cagles to burn the house in Floyd County where he lived and agreed to pay them. He assisted his daughter, to whom he had previously deeded the house, in submitting a claim to the insurance company.
Dover owned a Polk County trailer park where the father of Jimmy Lewis Cagle resided. Reid and Lisa wanted to purchase a trailer from Dover. He agreed to lower the price of the trailer and move it to Rome if they would torch a trailer resided in by McAl-lister, a tenant with whom he was having a dispute. After the fire, Dover made an insurance claim but discovered that the policy had not been renewed. He spoke by phone with Jimmy Lewis Cagle who advised him to get the number off an insured trailer and put it on the uninsured one. Dover did so and collected on the insurance.
The RICO count alleged that the defendants “did endeavor to acquire and maintain, directly and indirectly, and did aсquire and maintain, directly and indirectly, an interest in and control of real property, personal property and money, . . . through a pattern of racketeering activity consisting of arson, false statements, . . . and mail fraud . . .’’as more fully set out in the indictment.
The following predicate acts were alleged against Barnes and Dover in the RICO count:
Dover: (1) arson in the first degreе by soliciting the burning of the McAllister trailer, (2) making false statements to fire officials that McAllister and her boyfriend burned the trailer, and (3) committing mail fraud,
Barnes: (1) arson in the first degree by soliciting the burning of his daughter’s hоuse and (2) that Barnes committed mail fraud,
Substantive offenses were also charged:
Dover: Count IV, arson
Barnes: Count VII, arson
At the close of the State’s case, the court granted directed verdicts to Barnes on Count XX and to Dover on Counts IV and XII.
Dover was found guilty of Count I, RICO, and Count XVII, making a false insurance claim. Barnes was found guilty of Count I, RICO, and Count VII, arson.
Case No. A89A0235
1. Dover enumerates the failure of the court to grant his motion for directed verdict on the RICO count. The enumeration claims the evidence was insufficient as to proof of a pattern and as to proof that Dover was a member of an enterprise.
Georgia’s RICO act, while it has similarities to the federal RICO statute, has a number of significant differences.
“The Georgia RICO statute is significantly broader than its fedеral counterpart in that
The Supreme Court in Chancey, supra at 427 (4), upheld the act against a claim that it was unconstitutional due to vagueness and overbreadth.
As quoted above, the indictment hеre was framed only as a violation of
Dover argued below that the pattern requirement had not been met because, although several crimes had been alleged as predicate acts, they all arose from “one incident,” i.e., the burning of the trailer and obtaining insurance proceeds as a result, and such an incident was never meant to be covered by Georgia’s RICO act. His argument is premised on the discussion of the federal act’s “pattern” requirement contained in various circuit court cases applying
Sedima v. Imrex Co.,
Although they do not control construction or application of the state RICO statute, federal circuit court opinions regarding the federal statute are instructive. The Fourth, Seventh and Eighth Circuits have held that a single fraudulent scheme, regardless of the number of crimes and predicate acts contained in it, will not constitute a pattern for federal RICO purposes.
Intl. Data Bank v. Zepkin,
812 F2d 149, 154 (4) (4th Cir. 1987);
Lipin Enterprises v. Lee,
803 F2d 322, 324 (7th Cir. 1986);
Superior Oil v. Fulmer,
785 F2d 252 (8th Cir. 1986). The Fifth Circuit, however, has hеld that two related acts may be sufficient to form the required pattern, while the Eleventh Circuit also requires a showing of a threat of continuity.
Bank of America &c. v. Touche Ross &c.,
782 F2d 966, 970 (6) (11th Cir. 1986);
R.A.G.S. Couture v. Hyatt,
774 F2d 1350, 1355 (7) (5th Cir. 1985). The Eighth Circuit position has been rejected as to federal RICO in
H. J., Inc. v. Northwestern Bell Tel.
Co.,_U. S._(
Dover urges the adoption of the former approach, but that approach ignores the differences between the federal and Georgia statutes.
Because of this difference, our legislature intended to and did, by virtue of
Dover’s additional argument, that the federal violation of mail fraud was not properly included by reference in the Georgia statute, was not presented below and will not be considered here for the first time.
Cooper v. State,
2. Dover’s fourth enumeration contends that the court erred in failing to grant his motion for directed verdict on the RICO count due to the State’s failure to prove venue in Floyd County.
The predicate acts alleged against Dover were mail fraud, аrson, and making a false statement to the fire investigator concerning the arson. He was also charged for the same activities with the substantive violations of arson, false statement to the investigator, and insurance fraud (the latter is not included in the RICO statute as a predicate act). At the close of the State’s case, a verdict of acquittal was granted to Dover on the arson and false statement charges, on the express bases that the State failed to prove venue as to both charges and the State failed to prove the false statement. Although as part of the pattern of racketeering activity the arson could still be considered on the RICO charge, venue as to RICO must be sought elsewhere,
Offenses under
There was no proof of venue as to Dover in Floyd County on the mail fraud predicate act. The only evidence is one phone call made by Cagle from Floyd County to Dоver in Polk County in which Cagle advised Dover to alter the serial numbers on the burned trailer in order to get the insurance paid. As far as the mail fraud predicate act is concerned, this is unavailing since venue of that is premised on the use of the mails, which admittedly did not occur in Floyd County.
Dover’s conviction as to Count I is reversed. No challenge to venue was made below as to Count XVII, the fraudulent insurance claim. That conviction is affirmed, there being sufficient evidence as to venue on that count. Co-conspirator Cagle phoned Dover from Floyd County and discussed how to alter the number on the Celebrity trailer, which was not insured, to make it appear to be the insured Pacemaker. After Dover notified the insurance company that thеre was a question concerning which trailer was destroyed, the claim was assigned to an independent adjuster in Floyd County (Rome) for investigation. He went from Floyd County to Polk County on two occasions to inspect the burned out trailer. He found the altered serial number on the second trip and left the proof of loss form with Dover for completion. He made a third trip to re-inspect all of the trailers. As a result of the adjuster’s investigation and report, the insurer in Atlanta paid Dover’s claim.
This evidence was sufficient.
3. The decision in Division 2 makes consideration of Dover’s remaining enumerations unnecessary.
Case No. A89A0268
4. Barnes’ first enumeration is based on his adoption of Dover’s motion for directed verdict on the RICO count as discussed in Division 1 of this opinion, which is controlling here. He also contests the sufficiency of the evidence as to arson.
5. Prior to the pleas of guilty of all co-defendants except Dover, Barnes filed a motion for severance, the denial of which he enumerates as error. The only ground of the motion enumerated is that failure to sever his case from Dover’s created insurmountable difficulty and confusion for the jury. The denial of a motion to sever defendants pursuant to
6. The fourth and sixth enumerations claim error in the admission of bank records and “tax rеcords” as improperly placing Barnes’ character into evidence, apparently on the basis that the evidence implied a failure to file a tax return. No tax records, however, were admitted due to the State’s inability to properly authenticate them. Barnes testified without contradiction that he did file a return for 1986 and it reflected all of his income. No impropriety is shown.
As to the bank account records, no such objection will be considered here for the first time.
Fowler v. State,
7. Barnes’ fifth enumeration alleges error in the court’s allowance of certain questions asked by the State of Barnes’ witness. He had testified that he had known Barnes since Barnes’ childhood, his reputation was good, including his reputation for honesty, and he would believe him under oath. Before cross-examination, the State out of the presence of the jury advised defendant Barnes and the court that it intended to ask the witness if he knew of certain criminal charges and an allegation made against Barnes by Larry Reid in his diary that Barnes and Cagle had been involved in the purchase of stolen
Defendant objected to the questioning on the ground that there were no convictions on these charges or proof that the crimes had actually oсcurred, the charges had been dismissed, and additionally as to the allegation regarding involvement in the purchase of stolen motorcycles, it was not even acted on by any law enforcement agency and there was no evidence the allegation was true. The gist of the objection was that there was no evidence the crimes had occurred. The court denied the objections and overruled the anticipatory motion for mistrial.
When the jury returned, the State established that the witness as to Barnes’ good character was not aware that Barnes was charged in 1979 with two counts of bad checks, or that in 1982 he was charged with seven counts of theft by receiving, or that Larry Reid had made a statement that Barnes and Cagle were involved in the purchase of stolen motorcycles.
On appeal, Barnes cites
Clark v. State,
Assuming that adequate proof of the charges was presented, as apparently acknowledged by defendant Barnes during argument and redirect examination on the issue, we find, however, no admissible evidence of the allegations supposedly contained in Reid’s diary. In fact, except for the prosecutor’s statement that Reid’s allegations were contained in such a diary, which was never produced in court, nothing going to the foundation for these questions was offered. Reid never alluded to them during his testimony.
While thе State is allowed on cross-examination of a character witness to ask if the witness has heard that defendant had been accused of or convicted of other crimes, it may not do so without mak
Moreover, it was so unlikely that the community would have knowledge of the contents of the Larry Reid diary so as to constitute a basis for Barnes’ reputation or the witness’ knowledge of reputation, that we cannot say that the question was a proper one to determine the basis of the witness’ testimony. Thus it was irrelevant to the purpose for which it was ostensibly asked. Since it was obviously inflammatory and prejudicial, we must reverse on the basis of the principles discussed in
Hudson v. State,
Thus, the allowance of these questions without the proffer of proof was error.
8. The ruling in Division 7 makes consideration of the remaining enumerations unnecessary.
Judgment affirmed in part and reversed in part in Case No. A89A0235. Judgment reversed in Case No. A89A0268.