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
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. Marks convinced Mr. Stewart to obtаin a temporary protective order against Ms. Barnett, remove her from his bank accounts, and revoke her power of attorney. Marks also persuaded Mr. Stewart to make a new will, “temporarily” naming Marks’ daughter, Rachel Marks, as executrix and sole beneficiary. Marks retained an attorney and he took Mr. Stewart to that attorney’s office for the purpose of drafting the new will.
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 possession a briefcase which contаined: 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 was found in the vehicle. Marks signed a Miranda wаiver 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 Protection Act,” OCGA § 30-5-1 et seq. The Act defines “eldеr 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. Stewart to an attorney for the purрose 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 above, the evidence was sufficient fоr a rational juror to
(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).
(c) Marks was charged with theft by deception, OCGA§ 16-8-3, in that he obtained Mr. Stewart’s Oldsmobile by deceitful means by taking possession of the vehicle and title in payment for legal services when Marks was not an attorney. Marks submits that the evidence failed to establish the completed crime of theft by deception because title was never signed over to a transferee and because the vehicle ultimately was returned to Mr. Stewart. The evidence established that Marks caused Mr. Stewart to sign the title, and that Marks took possession and control of the vehicle in exchange for “legal work.” The evidence of theft by deception was sufficient under Jackson v. Virginia, supra.
Marks also submits that the State failed to prove the value of the vehicle, and that therefоre, 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 incident to his arrest, and also “inventoriеd [the contents] for safety purposes.” Among Mr. Stewart’s
“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 adjudication of guilt, a witness may not be impеached 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 constitutional challenge to OCGA§ 30-5-8 on еqual 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.
must be projected through the courts according to estаblished 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.
Eckles v. Atlanta Technology Group,
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 appellant; his proper name is Nichоlas 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 argument by failing to “complain abоut 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
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 mistakеnly assumes that the holding in any decision which addresses the issue of standing can be applied indiscriminately in every case, even one which involves the right to assert a completely different constitutional attack. Standing vel non is not a general concept, but depends upon the relationship between the party attacking the constitutionality of the statute and the nature of the challenge hе advances. Thus, reliance on Vandiver v. Williams,
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 has not waived his vagueness argument on appeal. However, we shоuld 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,