Marks v. StateMarks v. State
Lead Opinion
A jury convicted Nicholas Marks of multiple violations of OCGA § 30-5-8 (a) (1) (unlawful to abuse, neglect, or exploit elder persons); OCGA § 15-19-51 (a) (7) (unauthorized practice of law to use title of attorney when one is not a duly licensed attorney); and other crimes stemming from the financial exploitation of Leonard Stewart. Via motions to dismiss the indictment, Marks challenged the constitutionality of OCGA § 30-5-8 (a) (1) on vagueness and equal protection grounds, and the constitutionality of OCGA § 15-19-51 (a) (7) on First Amendment grounds. The trial court upheld the constitutionality of OCGA § 30-5-8 (a) (1) on equal protection grounds, and the constitutionality of OCGA § 15-19-51 (a) (7) on First Amendment grounds. Marks has appealed to this Court, asserting various constitutional claims, and enumerating other issues on appeal. Finding no error, we affirm.
In early March 2004, Leonard Stewart, an 89-year-old widower, was dining alone in a restаurant in DeEalb County, Georgia, when he was approached by a woman who invited him to join her and her male companion at their table.
Over the next few weeks, Marks spent six or eight hours a day with Mr. Stewart. During that time, Marks offered to do legal work in exchange for Mr. Stewart’s 1990 automobile. Mr. Stewart signed the title document and relinquished control of the vehicle to Marks. Marks drove Mr. Stewart to various banks where Marks identified himself to bank employees as Mr. Stewart’s attorney, and caused Mr. Stewart to close certain joint accounts and reopen them as individual accounts, and to remove certain items of jewelry from his safety deposit box and to give that jewelry to Marks. Mr. Stewart testified that he gave his credit cards to Marks “to loan him a few dollars”; instead, Marks charged approximately $15,000 worth of goods to those cards without authorization. In addition, Marks used Mr. Stewart’s credit card to send a $5,700 Western Union money order to Marks’ relative, Sam Marks, in Illinois.
Mr. Stewart’s friend, Beth Barnett, had been cosignatory on his bank accounts, and stock holdings for the past several years. Mr. Stewart had conveyed an undivided one-half interest in his home property to her some years earlier. In addition, she held his power of attorney and was named as executrix and primary beneficiary under Mr. Stewart’s will. Mаrks convinced Mr. Stewart to
Also during these few weeks, Marks’ associate, “Anne Russo,” had dinner with Mr. Stewart on two occasions. After that, she proposed marriage to him and asked him to move into her new home in Florida. Marks also took Mr. Stewart to a Ford dealership where he persuaded Mr. Stewart to make a $500 down payment on a new Ford Thunderbird automobile for Anne, and to sign a buyer’s agreement to pay the $34,000 balance in cash.
When Ms. Barnett and the officers at Mr. Stewart’s bank became suspicious of Marks’ conduct, they contacted the DeKalb Solicitor-General’s office, which quickly initiated an investigation. On March 18, 2004, Marks drove Mr. Stewart to the Horizon Bank in Mr. Stewart’s Oldsmobile. Marks approached a bank officer, identified himself as Mr. Stewart’s attorney, and requested that a cashier’s check be issued on Mr. Stewart’s account. The police immediately arrested Marks. He had in his possessiоn a briefcase which contained: the forged quitclaim deed which he had filed in the Superior Court of DeKalb County; the revoked power of attorney; approximately 40 blank checks from Mr. Stewart’s account at SunTrust Bank; Mr. Stewart’s original will naming Ms. Barnett as executrix and beneficiary; and a statement from Mr. Stewart’s securities account at SunTrust Bank showing a value of $151,185.60. The executed title to Mr. Stewart’s Oldsmobile wаs found in the vehicle. Marks signed a Miranda waiver and told the police that he was a retired attorney from Connecticut, and he denied knowing anyone named Anne.
1. In several enumerations of error, Marks asserts that the evidence against him was insufficient under the standard of Jackson v. Virginia,
(a) Marks was charged by indictment with four counts of violating OCGA § 30-5-8 (a) (1) (exploitation of an elder person) of the “Disabled Adults and Elder Persons Protectiоn Act,” OCGA § 30-5-1 et seq. The Act defines “elder person” as an individual “65 years of age or older who is not a resident of a long-term care facility.” OCGA § 30-5-3 (7.1). “Exploitation” is defined as “the illegal or improper use of a disabled adult or elder person or that person’s resources for another’s profit or advantage.” OCGA § 30-5-3 (9). The indictment charged that Marks did unlawfully exploit Leonard Stewart, an elder person, by: taking Mr. Stewаrt to an attorney for the purpose of changing his will; influencing Mr. Stewart to wire more than $5,000 to Sam Marks by Western Union; taking Mr. Stewart to a Ford dealership where he signed a contract to purchase a Thunderbird automobile; taking Mr. Stewart to Horizon Bank where Mr. Stewart removed jewelry from his safety deposit box and gave that jewelry to Marks; and taking possession of the title to Mr. Stewart’s Oldsmobile. As recited abovе, the evidence was sufficient for a rational juror to conclude beyond a reasonable doubt that Marks exploited Mr. Stewart for his own profit or advantage, as defined by OCGA § 30-5-3 (9), and to find Marks guilty beyond a reasonable doubt of the crimes of exploitation of an elder person. Jackson v. Virginia, supra.
(b) The evidence was also sufficient under Jackson v. Virginia, supra, to support the convictions of four counts of OCGA § 15-19-51 (a) (7) (unlawful for any person other than a duly licensed attorney to use the title of “attorney” to convey the impression that he is entitled to practice law).
Marks also submits that the State failed to prove the value оf the vehicle, and that therefore, he was improperly punished for a felony. OCGA § 16-8-12 (a) (5) (A) provides, however, that when the item taken is a motor vehicle greater than $100 in value, a felony sentence is authorized regardless of proof of value. See also Jackson v. State,
(d) The evidence was sufficient under the standard of Jackson v. Virginia, supra, to support the count of forgery of the purported quitclaim deed.
2. Marks filed a pretrial motion to suppress the contents of his briefcase. Evidence adduced at a suppression hearing showed that Marks was arrested pursuant to a warrant, and was taken to the DeKalb County jail for booking. Detective Hasan arrived at the jail and requested that Marks be brought from the holding area so that he could be transported to the police station. The detective thought it “odd” that Marks had a briefcase in his possession after having been booked. As Marks was being placed in the patrol car, the detective took possession of the briefcase as incidеnt to his arrest, and also “inventoried [the contents] for safety purposes.” Among Mr. Stewart’s various financial documents, the briefcase also contained the forged quitclaim deed, which formed the basis for a forgery charge.
“Property which the arrestee elects to take with him to jail is subject to search under analysis similar to that allowing search incident to an arrest.” Batton v. State,
3. The trial court properly refused to allow Marks to impeach a State’s witness with a first offender conviction. “[UJnless there is an adjudicаtion of guilt, a witness may not be impeached on general credibility grounds by evidence of a first offender record.” Matthews v. State,
4. Marks asserts that OCGA§ 30-5-8 is unconstitutionally vague and ambiguous. Although Marks mounted a constitutional challenge to the elder abuse statute on vagueness grounds in the trial court, that court determined that Marks had no standing to assert such a challenge because he failed to show that the statute as applied to his conduct, adversely impacted him.
Marks does not complain about the standing ruling on appeal;
Marks also mounted a cоnstitutional challenge to OCGA§ 30-5-8 on equal protection grounds, and the trial court expressly upheld the constitutionality of the statute on that basis. However, Marks fails to enumerate that ruling as error on appeal, or to support any such claim with argument or citation of authority. We therefore deem the claim abandoned under Supreme Court Rule 22. Mundy v. State,
5. Marks asserted below that OCGA § 15-19-51 (a) (7) unconstitutionally limits free speech in violation of the First Amendment to the Federal Constitution, and Art. I, Sec. I, Par. V of the Georgia Constitution.
The right to practice law is a special privilege conferred by the State. Sharp-Boylston Co. v. Haldane,
must be projected through thе courts according to established practice by lawyers who are of high character, skilled in the profession, dedicated to the interest of their clients, and in the spirit of public service. In the orderly process of the administration of justice, any retreat from those principles would be a disservice to the public.
Judgment affirmed.
Notes
Mr. Stewart testified under oath for the State and was cross-examined by Marks’ attorney at a bond hearing which took place on March 30, 2004. Mr. Stewart died within months of that hearing, and prior to the trial of this case. His sworn testimony at the bond hearing was introduced into evidence at Marks’ trial.
Ron Russo is an alias used by appеllant; his proper name is Nicholas Marks.
That will was never executed because Marks was arrested in the interim.
The challenge proffered in the trial court and argued on appeal is that the language of OCGA § 30-5-3 (9) which defines “exploitation” as “the illegal or improper use of. .. [an] elder person or that person’s resources for another’s profit or advantage” is so vague that it fails to put a defendant on notice as to what type of conduct will constitute a violation of the statute, and also punishes innocent conduct. As discussed in Division 1 (a), supra, Marks’ indictment expressly set forth the acts which were alleged to have violated the statute.
We express no opinion as to the propriety of that ruling.
Marks also argues on appeal that OCGA § 15-19-51 (a) (7) is void for vagueness. The trial court, however, did not rule on that point below; therefore, it will not be considered on appeal. Haynes, supra at 108 (3).
Concurrence Opinion
concurring specially.
I concur in affirmance of the judgment, but write separately to address the issue of Marks’ constitutional challenge to OCGA § 30-5-8 (a) (1) on vagueness grounds. In Division 4, the majority states that the trial court “expressly declined to address the merits” of the attack on the constitutionality of the statute because Marks lacked standing, and it then holds that Marks has waived his right to make the vagueness аrgument by failing to “complain about the standing ruling on appeal; he addresses only the merits of the vagueness challenge.” Majority opinion, p. 74.1 do not agree that waiver applies, because, contrary to the majority’s analysis, the trial court did not actually “decline” to address the merits of Marks’ contention based upon his lack of standing. Instead, I believe that the trial court’s conclusion that Marks lacked standing was a ruling on the merits of his vagueness challenge to the statute. Since the trial court ruled on the merits, so must we.
The rule is that “ ‘(o)ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness.’ [Cit.]” (Emphasis supplied.) Hill v. State,
OCGA § 30-5-8 (a) (1) provides, in relevant part, that “it shall be unlawful for any person to . . . exploit any disabled adult or elder person.” According to OCGA § 30-5-3 (9), “exploitation” means “the illegal or improper use of a disabled adult or elder person or that person’s resources for another’s profit or advantage.”
A statute ... is unconstitutionally vague only if it fails to convey “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices,” [cits.] so that “persons of common intelligence (need not) necessarily guess at its meaning (nor) differ as to its application.” [Cit.]
Franklin v. State,
the application of the [statute] in light of the conduct to which it is applied in this case. [Cits.] “(A) person ‘who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.’ (Cits.)” [Cit.]
Thelen v. State,
The majority mistakenly assumes that the holding in any decision which addresses the
As the majority notes, Marks does not complain about the standing ruling on appeal, but he does address the merits of his vagueness challenge. Of course, a vagueness challenge, as applied to Marks, is precisely the issue that he raised below and that the trial court ruled on. Therefore, he hаs not waived his vagueness argument on appeal. However, we should address the merits of that argument, and affirm the trial court’s holding that, insofar as Marks’ conduct is concerned, OCGA § 30-5-8 (a) (1) is not unconstitutionally vague simply because the “application of the statute’s standards sometimes requires an assessment of the surrounding circumstances to determine if [it] is violated.... [Cits.]” State v. Boyer,