Case Information
*1 FOURTH DIVISION
DILLARD, C. J.,
RAY, P. J. and SELF, J. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 19, 2017 In the Court of Appeals of Georgia
A17A0858. MATHIS v. THE STATE. SE-027C
S ELF , Judge.
Following a jury trial, the Superior Court of Floyd County entered judgments of conviction against Christopher Mathis on 52 counts related to Mathis’ theft of more than $600,000 as the operator of a Pоnzi scheme. [1] With the exception of *2 correcting three of Mathis’ sentences, the trial court denied Mathis’ motion for new trial as amended and Mathis appeals. Mathis now contends that the trial court erred in a portion of its jury instruction and that it failed to merge his convictions for theft by conversion and theft by deception into his convictions for theft by taking. Because we conclude the trial court failed to merge Mathis’ convictions for theft by taking, we vacate those convictions and remand to the trial court for resentencing. We find no additional error, and therefore affirm Mathis’ remaining convictions.
Viewed in the light most favorаble to the verdict, the evidence revealed that Mathis served as the elected chief magistrate of Floyd County. Mathis also owned a cattle farm. At various times throughout 2008 and 2009, Mathis approached at least 13 potential investors to solicit funds for an investment in cattle. According to the victims, most оf whom had known Mathis for a substantial length of time, Mathis proposed purchasing the cattle and maintaining them on his farm, breeding them, and then selling them for a profit, splitting the profit with the victims. Collectively, the victims gave Mathis in excess of $898,000. With limited exceptions, [2] Mathis failed *3 to repay the victims any of the money they invested or any return on their investment. On several occasions, Mathis gave a check to a victim representing the victim’s original investment and their profit; however, those checks were dishonored upon presentment for insufficient funds. Of the 13 victims, 5 were over the age of 65. Mathis’ scheme began to unravel when one of the victims received a bad check for $61,000 from Mathis and reported the check to the Rome Judicial Circuit District Attorney’s Office. Local authorities contacted the Georgia Bureau of Investigation, which investigated and detailed Mathis’ scheme.
1. Mathis first contends that the trial court erred by instructing the jury that it “may, if you сhoose, review the details of each charge” of the indictment during deliberations. According to Mathis, the trial court’s instruction essentially told the jury it was not necessary to read the indictment, which was particularly harmful given the sheer size and technical nature of the indictment. However, in view of the jury charge in its entirety, we find no reversible error.
After the trial court administered the oath to the venire panel, but before jury selection, the trial court read the 52-count indictment in its entirety to the panel. Thereafter, in administering the oath to the jurors selected for trial, the trial court noted that Mathis was “charged with fоur counts of deposit account fraud, 13 counts *4 of theft by taking, 13 counts of theft by conversions, 14 counts of theft by deception, five counts of exploitation of [an] elder person, one count of forgery in the first degree, one count of damaging, destroying and secreting property to defraud another and one count of violation of oath of public office for a total of 52 counts. . . .” Following the charge conference, the trial court noted that the parties agreed “the Court could summarize the indictment in the same fashion it did when it administered the oath to the jury.” As a result, the trial court chargеd the jury that Mathis was charged with “52 offenses consisting of 4 counts of deposit account fraud, 12 counts of theft by taking, 13 counts of theft by conversion, 14 counts of theft by deception, 5 counts of exploitation of an elder person, one count of forgery in the first degree, one count of damaging, destroying and secreting property and one count of violation of oath of public office.” The trial court further instructed the jury that “[y]ou will have the indictment out with you in the jury room during the deliberations, at which time you may, if you choose, review the details of each charge.” Trial counsel did not object to the trial court’s instruction at the close of its charge. Mathis now contends that the trial court’s instruction to the jury that it “may, if you choose, review the details of each charge” is error.
As a threshold matter, because Mathis failed to raise this argument as a
“specific objection and the grounds for such objection before the jury [retired] to
deliberate,” OCGA § 17-8-58 (a), the argument has been waived. See OCGA § 17-8-
58 (b). Nonetheless, we are required to evaluate the allegedly erroneous jury
instruction for plain error. See OCGA § 17-8-58 (b);
State v. Kelly
,
First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in thе ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affеcts the fairness, integrity or public reputation of judicial proceedings. (Emphasis in original.)
Reyes
,
Pretermitting the remaining prongs of the plain error analysis, we conclude that
Mathis cannot demonstrate the third prong: that an error in the trial court’s charge
“affected the outcome of the trial court proceedings.”
Reyes
,
In addition, the trial court’s instruction comports with the relevant pattern jury instructions for the offenses charged. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, 4th ed. (2007) §§ 2.64.20, 2.64.60, 2.64.90. Moreover, the trial court emphasized thе importance of the indictment by stating that “if after considering the testimony and evidence presented to you together with the charge of the Court you should find and believe beyond a reasonable doubt that the defendant . . . did . . . commit the offenses as alleged in the indictment , you would be authorized as to each of said counts to find the defendant guilty.” (Emphasis supplied.) Similarly, the verdict form set out each count of the indictment separately. Finally, the indictment was provided to the jury during deliberations, and the verdict form prepared for the jury contained only those charges included in the indictment.
In conclusion, while the trial court’s statement tо the jury that it “may, if you
choose, review the details of each charge” is imprecise and should be avoided, we
conclude that Mathis has failed to demonstrate that the statement “affected the
outcome of the trial court proceedings.” See
Reyes
, 322 Ga. App. at 501 (4).
Accordingly, when viewed in its entirety, we find there is no plain error in the trial
court’s charge. See
Kelly
,
2. Second, Mathis contends the trial court erred in failing to merge his convictions for theft by conversion and theft by deception into his convictions for theft by taking because “even if [each allegation of theft] involve[s] different elements, they wеre convictions from taking the same money from the same victim.” While we agree that certain of Mathis’ convictions should have merged for sentencing, we do not agree that theft by conversion and theft by deception merge into theft by taking.
“Whether two offenses should be merged is a question of law, and we apply a
‘plain legal error’ standard of review.” (Citation omitted.)
Lavigne v. State
, 299 Ga.
App. 712, 714 (2) (
[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crimе if: (1) One crime is included in the other; or
(2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
Here, Mathis was charged with theft by taking, theft by deception, [3] and theft by conversion. [4] Under OCGA § 16-8-2, “[a] person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated. ” (Emphasis supplied.) As a result,
[u]nder the [theft by taking] statute, the phrase “regardless of the manner
in which the property is taken or appropriated” is a catch-all phrase
rendering our theft by taking statute broad enough to encompass theft by
conversion, theft by deception or any other of the myriad and even
yet-to-be-concocted schemes for depriving people of their property.
Thus, the [S]tate may indict someone for theft by taking, but prove theft
by deception. . . . Or, the [S]tate may prove theft by conversion. . . .
*10
Patterson v. State
,
with the intention of depriving the [victims] of said property by deceitful means and artful practice by CREATING THE IMPRESSION THAT SAID MONEY WAS TO BE USED TO PURCHASE CATTLE, THE OWNERSHIP OF WHICH WAS TO BE SHARED WHEN [MATHIS] HAD NO INTENTION OF PURCHASING CATTLE FOR SHARED OWNERSHIP[.] (Emphasis in original.)
In short, then, for the solicitation of a single sum of monеy from each of 13 separate victims, the State indicted Mathis for theft by taking, theft by conversion, and theft by deception, resulting in 13 counts [5] of each crime. [6]
*11
We note that theft by taking proscribes certain criminal conduct generally,
while theft by conversion and theft by deception are specific crimes.
[7]
As a result, we
conclude that Mathis’ convictions for theft by taking merge pursuant to OCGA § 16-
1-7 (a) (2).
[8]
Cf.
Adkins v. State
,
[7] For this reason, the “required evidence” test is not applicable. See
Drinkard
v. Walker
,
theft by taking must be vacated, see OCGA § 16-1-7 (a) (2), we need not decide in the first instance whether theft by taking merges into theft by conversion or theft by deception.
(1992) (dicta that “theft by conversiоn was merged into [a] theft by taking conviction
at sentencing”);
Johnson v. State
,
*13 Judgment affirmed in part, vacated in part, and case remanded for resentencing. Dillard, C. J., and Ray, P. J., concur.
inconsistent, confusing, or irregular if he fails to object to the form of the verdict.”).
Notes
[1] The jury returned verdicts of guilty against Mathis on four counts of felony deposit account fraud (OCGA § 16-9-20) (counts 1, 6, 10, and 14); thirteen counts of theft by taking (OCGA § 16-8-2) (сounts 2, 7, 11, 15, 18, 21, 27, 31, 34, 38, 41, 45, and 48); thirteen counts of theft by conversion (OCGA § 16-8-4) (counts 3, 8, 12, 16, 19, 22, 28, 32, 35, 39, 42, 46, and 49); fourteen counts of theft by deception (OCGA § 16-8-3) (counts 4, 9, 13, 17, 20, 23, 25, 29, 33, 36, 40, 43, 47, and 50); five counts of exploitation of an elder person (OCGA § 30-5-8.C) (counts 5, 24, 30, 37, and 44); and one count each of first degree forgery (OCGA § 16-9-1 (b)) (count 26), secreting property to defraud another (OCGA § 16-9-53) (count 51), and violation of oath of public office (OCGA § 16-10-1) (count 54). Counts 52 (theft by taking) and 53 (livestock theft [OCGA § 16-8-20]) were severed from Mathis’ trial, and he entered pleas of guilty to these two counts following trial for the remaining 52 counts.
[2] For example, Mathis repaid three early victims in full and a fourth early victim almost in full, but then only paid one couрle $5,000 following their original investment of $59,500 and gave another couple $1,400 and one head of beef for slaughter following their original investment of $25,000.
[3] “A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” OCGA § 16-8-3 (a).
[4] Theft by conversion occurs when, “having lawfully obtained funds or other property of another including, but not limited to, leased or rented personal property, under an agreement or other known legal obligation to make a specified application of such funds оr a specified disposition of such property, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation.” OCGA § 16-8-4 (a).
[5] A fourteenth count of theft by deception (Count 25) was the result of one of the 13 victim’s sons’ participation in the victim’s investment.
[6] Compare
Kilby v. State
,
[9] Because theft by conversion and theft by deception each require proof of an
element or fact which the other does not, these convictions do not merge as a matter
of fact or law. Compare OCGA §§ 16-8-3 with 16-8-4. See
Drinkard
,