Watson v. StateWatson v. State
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- Before:
- Eldridge
Jаmes G. Watson and Brenda E Watson, husband and wife, appeal from a Muscogee County jury’s verdict finding them guilty as parties to the crime of two counts of violation of the Georgia Racketeer Influenced & Corrupt Organizations Act (“RICO”),
As in many RICO actions, the record in this case is large, consisting of seven volumes of testimony and hundreds of pages of exhibits. Accordingly, we will address only those facts relevant to a resolution of the three enumerations of error raised on appeal.
In a light most favorable to the jury’s verdict,
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the pertinent evidence shows that the Watsons operated Jak’s Pawn Shop, not as a pawnbrokerage, but as a small loan сompany in violation of the Georgia Industrial Loan Act,
In that regard, customers would obtain a cash loan and, contemporaneously, writе Jak’s Pawn Shop a check for the full loan amount plus a twenty percent fee, which fee was purportedly classified as one percent interest and 19 percent “storage fee.”
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The check was left as collateral for the loan. However, at the same time that the customer handed the Watsons the check for the loan, an item of nominal value, such as a jar of dirt or a Bic lighter, would also be given to the Watsons as “pledged goods” pursuant to the pawnbroker regulatory scheme. See
Thereafter, the Watsons would hold the customer’s check for four weeks, at which time the customer could either repay the loan and get the check back, or “renew” the loan for another four weeks by paying an additional twenty percent fee; this renewal process could be, and often was, repeated indefinitely. 4
If the loan customer did not repay or renew the loan, the Watsons would deposit the customer’s check in the bank. When the check
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was returned because of “insufficient funds” or “account closed,” the Watsons would swear out a warrant for the customer’s arrest pursuant to the bad check statute,
“[U]ttered and delivered to Jak’s, a check in the amount of [dollar amount] for merchandise knowing that said check would not be honored by drawee [the bank].”
However, (1) Jak’s Pawn Shop did not sell merchandise; (2) at the time the Watsons received the customer’s check as collateral for the loan, it was understood by all parties that “said check would not be honored by drawee” because there was no money in the checking account: otherwise, “they wouldn’t have to come in and get a loan”; and (3) at the time the Watsons received the check, “there was never any intention on Jak’s to present the check to the bank”; the check would only be presented to the bank upon occurrence of a future act, i.e., the customer’s failure to pay or renew.
Nevertheless, in order to avoid arrest and prosecution by the State for the offense of “bad check,” the customer would go to the Columbus Government Center in order to pay the check amount, plus fines and cоurt costs. Held:
1. The Watsons first challenge the trial court’s denial of their motion for directed verdict.
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They contend that the evidence was insufficient to demonstrate perjury in connection with the swearing out of arrest warrants for the offense of bad check because: (a) the checks were, in fact, bad checks sinсe they were returned for insufficient funds or account closed; (b) there was no evidence of intent to give false testimony in swearing out the warrants since the checks were, in fact, bad checks; and (c) the State failed to meet its burden to call two witnesses to testify that the Watsons committed perjury, as allegedly required by
The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Cantrell v. State, 230 Ga. App. 693, 694-695 (498 SE2d 90) (1998). “A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidenсe demands a verdict of acquittal as a matter of law. Moreover, on appeal the evidence must be viewed in the light most favorable to the verdict, [the Watsons] no longer enjoy[ ] the presumption of innocence, and the appellate court deter *384 mines the sufficiency, not the weight of the evidence, and does not judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.” (Citations omitted.) White v. State, 233 Ga. App. 24, 25-26 (503 SE2d 26) (1998).
(a) In essence, the Watsons’ initial contention is that, since a check was “not honored by the drawee” as specified by the bad check statute, there cаn be no peijury in swearing out a warrant for that offense. We do not agree.
In pertinent part, “[a] person commits the offense of deposit account fraud when such person makes, draws, utters, executes, or delivers an instrument for the payment of money on any bank or other depository in exchange for a рresent consideration or wages, knowing that it will not be honored by the drawee.”
Accordingly, and contrary to the Watsons’ assertions, whether or not a check ultimately is worthless when it is finally deposited misses the point. The offense of “bad check” occurs at time of the issuance of the check with knowledge that it will not be honored. State v. Brannon, 154 Ga. App. 285 (267 SE2d 888) (1980); Russell v. State , 155 Ga. App. 555 (271 SE2d 689) (1980).
Here, in order to obtain an arrest warrant, the Watsоns swore that the customer uttered and delivered to Jak’s a check for merchandise, knowing that the check would not be honored by the bank. Yet, the evidence shows that (1) the Watsons knew, at the time of its issuance, a check was not in exchange for merchandise; and (2) at the time of a check’s issuance, the customer and the Watsons never intended for the check to be deposited and honored by the bank, rendering impossible the requisite knowledge/intent under the statute.
Moreover, at the time of its delivery to the Watsons, a check was not a “bad check” within the meaning of the statute,
In this case, accepting a check in exchangе for money with the intent to hold the check until the money is paid back, or finally depositing the check in retaliation for the failure to pay the money back, negates the exchange as a “single contemporaneous transaction” and, thus, as one for “present consideration.” As succinctly stated by the investigating officer, “the check itself is not totally for present consideration if it involved a future event taking place to determine whether, in fact, the check is to be negotiated as a check or *385 whether it’s to be tossed in the trash.”
(b) The Watsons maintain that the evidence was insufficient to demonstrate the requisite intent to give false testimony so as to supрort a perjury charge. We do not agree.
In pertinent part, “[a] person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.”
Here, based on the evidence recounted in Division 1 (a), as well as other evidence detailed in the statemеnt of facts above, we find that a rational trier of fact could have found beyond a reasonable doubt that the affidavits in support of the arrest warrants for bad check contained false statements that were sworn to knowingly and willfully in order to force the customers of Jak’s Pawn Shop to repay their loans. The evidence sufficiently shows that the Watsons knew the checks were not bad, the loans were.
(c) The Watsons contend that the State failed to meet its burden to call two witnesses to testify that the Watsons swore falsely and committed perjury, as allegedly required by
In that regard, the State called several employees of Jak’s Pawn Shop to testify regarding the process of making small loans thinly disguised as “pawns,” as recounted in the statement of facts above. These witnesses testified that, аt the Watsons’ direction, arrest warrants were obtained for the offense of bad check when the loans were not repaid in the agreed upon fashion, as recounted above. These witnesses testified as to the substance of the affidavits in support of the arrest warrants. The facts to which these witnesses testified were *386 corroborated by extensive testimony from customers of Jak’s Pawn Shop who wrote checks as collateral for small loans and against whom arrest warrants were sworn out for the offense of bad check. In addition, hundreds of pages of documentary evidence corroborated the factual testimony оf these witnesses, including arrest warrants, affidavits in support thereof, pawnbroker reports, and the checks, themselves.
Accordingly, the State amply complied with
Enumeration of error number one is without merit.
2. The Watsons’ second enumeration of error is that thе trial court failed to charge
Even if requested, the Watsons failed to show how they were harmed by the failure to charge
3. In their final enumeration of error, the Watsons contend that the trial court erred in denying their motion to suppress evidence gathered pursuant to search warrants issued for their residence and their businesses. The Watsons cоntend that (a) the warrants were improperly executed in that the officers seized items not listed in the warrants; and (b) the information contained in the warrants was insufficient to constitute probable cause for the warrants to issue. These contentions are meritless.
(a) “A lawful search is limited to that which is described in the warrant. The warrant shall particularly describe the things to be seized and the search must be limited to that matter described.” *387 (Citations and punctuation omitted.) Grant v. State, 220 Ga. App. 604, 607 (469 SE2d 826) (1996). However, “when circumstances make an exact description of instrumentalities a virtual impossibility, the searching officer can only be expected to describe the generic class of the items he is seeking.” (Citаtions and punctuation omitted.) Id. at 608 (2).
We have reviewed the warrants in this case, as well as the returns generated after the execution of the warrants. We find that the items seized did not exceed the scope of the warrant. Further, as they did at the motion to suppress, the Watsons have failed to identify any specific, seizеd item that was either unlisted or outside the scope of the warrant. Compare Grant, supra at 607 (“the inventory list of the items seized and [agent] Olinger’s testimony established that the scope of the search exceeded the warrant[.]”). Further, the items listed in the warrant were limited to those involving named participants and businesses; thus, the items wеre described with the requisite particularity. Compare Grant, supra at 609. “The determination of which documents fell within this rubric would have been a matter of fact, and would have been an appropriate determination for the searching officers to make. [Cit.]” Id.
(b) The Watsons’ challenge to the affidavit supporting the searсh warrant also fails. “[A] magistrate faced with an application for a search warrant must decide whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. We, in reviewing the magistrate’s decision, must determine whether the magistrate had a substantial basis for сoncluding that probable cause existed to issue a search warrant.” (Citations and punctuation omitted.) Grier v. State, 266 Ga. 170, 172 (2) (b) (465 SE2d 655) (1996). Here, the affidavit in support of the search warrant provides detailed information and corroboration regarding the unlawful practices of the Watsons in operating Jak’s Pawn Shop and Check Cashers as unliсensed small loan companies, which practices were uncovered during a financial audit conducted pursuant to an initially unrelated arson investigation. Reviewing the record, we hold that the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrants. Id.
Judgment affirmed.
McMurray, P. J., and Blackburn, J., concur.
Notes
In order to satisfy the requirements of
Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
The record shows that Jak’s Pawn Shop had no merchandise to store so as to justify a “storage fee.” Further, the Industrial Loan Act,
Although the check was returned when a customer repaid the loan, the nominal “pledged goods” given at the time of the loan generally was not returned because it had no value.
Herein, the Watsons do not contest their status as “parties to the crimes” for which they were convicted, since they operated and controlled Jak’s Pawn Shop, and its employees acted under their direction. See