Criminal Law - Franklin J. Hogue and Laura D. Hogue

• Publication year: 2002

Criminal Lawby Franklin J. Hogue^* and Laura D. Hogue^**

I. Introduction

The appellate courts of Georgia produce a prodigious number of published opinions every year. This year was no exception. We read them with an eye toward cases of interest to lawyers who practice criminal law. It is possible that we missed your favorite case, but we hope we did not miss any important case.

II. Pretrial Issues

A. Jurisdiction

The Georgia supreme court reminded the Atlanta city court solicitor of the narrow scope of jurisdiction that the city court has over criminal cases in Bush v. State.¹ In Bush defendant Bush was given two uniform traffic citations: one for possession of marijuana and one for carrying a pistol without a license. Bush was not charged with any traffic offenses.²

Bush appeared in Atlanta City Court and entered a guilty plea to both offenses and received probated sentences and a fine. However, the city court's jurisdiction over nontraffic offenses is dependent upon the existence of a charged traffic offense.³ The city court may hear other misdemeanors only when they arise out of the same occurrence as the traffic offense.⁴ Because there was no traffic offense in this matter, the city court lacked jurisdiction, the judgment was a nullity, and the court reversed the conviction.⁵

B. Venue

In Culver v. State,⁶ the Georgia Court of Appeals dealt a huge blow to the Medicaid Fraud Unit of the Attorney General's Office by declaring that the only proper venue for Medicaid fraud cases is DeKalb County, the location where all Medicaid billings are submitted for payment.⁷ Defendants Kell and Culver practiced in Fulton County and submitted fraudulent billings from their location to EcoMed, the service provider for Medicaid. Medicaid then submitted the billings to Medicaid's fiscal agent, which is located in DeKalb County. Kell and Culver were convicted of Medicaid fraud in Fulton County, and they appealed, arguing that venue was not properly laid in Fulton County.⁸ Defendants alleged that the offense for which they were indicted, pursuant to the Official Code of Georgia Annotated ("O.C.G.A.") section 49-4-146.1(b)-(1),⁹ prohibits obtaining or attempting to obtain Medicaid benefits by "(A) [k]nowingly and willfully making a false statement or false representation; (B) [d]eliberate concealment of any material fact; or (C) [a]ny fraudulent scheme or device."¹⁰ Defendants asserted that venue of the criminal act occurs in the location where the fraudulent statements were conveyed, which was DeKalb County.

Because Kell and Culver made the false statements in Fulton County, the State argued that Fulton County was the location of the fraudulent scheme underlying the fraudulent billings, even though those statements were conveyed to the fiscal agent in DeKalb County.¹¹ The court of appeals noted the dicta in State v. Johnson¹² as persuasive.¹³ In Johnson the supreme court stated that venue for obtaining medical assistance benefits under O.C.G.A. section 49-4-146.1(b)(1) would be "'the county where a false report was submitted and processed in an attempt to obtain medical assistance.'"¹⁴ Therefore, the court in Culver ruled that the trial court should have directed a verdict of acquittal.¹⁵ The supreme court has accepted certiorari.¹⁶

C. Demurrer/Charging Documents/Elements of Offense

1. Demurrer

In Perdue v. State,¹⁷ defendant Perdue was convicted of child molestation, aggravated child molestation, statutory rape, and first-degree cruelty to children, all involving his stepdaughter.¹⁸ The first-degree cruelty charge alleged that he "unlawfully, maliciously caused his stepdaughter cruel and excessive mental pain by telling her not to tell anyone about the sexual activities he was performing on, to, and with her because it would cause her family to break up."¹⁹ Perdue appealed, alleging that there was "no evidence that his stepdaughter experienced excessive mental pain maliciously caused by him."²⁰ The court of appeals ruled that the jury should determine what is cruel or excessive mental pain, and in this case, the presented facts were sufficient for the jury to find Perdue guilty.²¹ The jury convicted Perdue based on (1) the victim's testimony about her struggle between telling the truth to stop the sexual abuse and destroying her family and (2) her mental suffering after the sexual abuse had been reported and after she had been put into a foster home.²²

In another demurrer case, Bagby v. State,²³ defendant Bagby asserted that the offense of contributing to the delinquency of a minor²⁴ is unconstitutionally vague.²⁵ O.C.G.A. section 16-12-1(b)(3) provides:

A person commits the offense of contributing to the delinquency, unruliness, or deprivation of a minor when such person . . . [w]ilfully commits an act or acts or willfully fails to act when such act or omission would cause a minor to be found to be a deprived child as such is defined in Code Section 15-11-2, relating to juvenile proceedings.²⁶ @@@

Bagby argued that the statute was unconstitutionally vague because the definition of "deprived child" contained in O.C.G.A. section 15-112,²⁷ and incorporated in O.C.G.A. section 16-12-1(b)(3),²⁸ failed to give adequate notice of the prohibited conduct.²⁹ The supreme court disagreed, finding the statute "[m]easured by common understanding," was not susceptible to arbitrary and discriminatory enforcement.³⁰ It was of no consequence to the court that the definition of "deprived child," like other provisions of the Code relating to juvenile proceedings, must be liberally construed. Because criminal statutes must be strictly construed against the State, O.C.G.A. section 16-12-1(b)(3) must also be strictly construed, notwithstanding the interpretation to be given to juvenile proceedings.³¹

In Dorsey v. State,³² this question arose: Does the doctrine of collateral estoppel preclude a suppression determination in a criminal proceeding after there has been a favorable ruling on suppression in a related civil forfeiture proceeding? The court responded in the negative.³³

The State pursued criminal charges and a civil forfeiture against defendant Dorsey arising out of the same conduct. The forfeiture proceeding ended when the trial judge granted Dorsey's motion to suppress evidence. Dorsey brought a plea of former jeopardy in the criminal action, arguing that the suppression could not be relitigated.³⁴ The court of appeals reiterated that

[a] civil forfeiture proceeding is a civil action and does not seek to impose the punishment necessary to activate the protection against double jeopardy. . . .³⁵ [Because] double jeopardy does not arise from a civil forfeiture action in general, then resolution of an issue in the civil forfeiture action should not result in the application of double jeopardy through the collateral estoppel doctrine.³⁶ @@@

Therefore, "the collateral estoppel doctrine does not apply in a criminal case following a final judgment in a civil forfeiture action . . . ."³⁷

2. Charging Documents

When must the indictment state the name of the victim? The court of appeals held that the State does not need to name the victim in a child pornography case because the victim is the "public at large."³⁸ Similarly, in Presley v. State,³⁹ the court ruled that the State does not need to name the victim in the crime of conspiracy to commit aggravated assault when the conspiracy is not limited to assaulting a particular individual.⁴⁰ In this case, defendant Presley hid the weapon for the inmate, intending that the inmate use it to take control of an officer to escape from jail.⁴¹ The court held that under these facts, the intended victim of the aggravated assault was "whoever stood between [the inmate] and freedom . . .," and therefore, "the indictment did not need to specify a particular victim."⁴² Accordingly, the trial court's denial of the demurrer was affirmed.⁴³

3. Elements of Offense

a. Informing Third Party of Police Presence. In a case of first impression, the court of appeals in Evans v. State⁴⁴ considered whether a defendant's informing a third party of police presence and warning that third party not to go into a home where officers were conducting a search is sufficient to sustain a conviction for obstruction of a law enforcement officer.⁴⁵ The short answer is "yes." Defendant Evans lived across the street from a house in which undercover officers were conducting a reverse sting. "[W]hile standing on the porch of her house . . ., [Evans] warned an individual who approached not to go into the house where the officers were located. After police told her to go back inside her home, she warned another person, 'Hey don't go in there. The police is inside [sic].'"⁴⁶ The person she warned followed her suggestion and left quickly.⁴⁷

Evans was convicted of misdemeanor obstruction.⁴⁸ The court of appeals affirmed the conviction, finding that her warnings jeopardized the safety of the officers conducting the operation and thereby constituted obstruction.⁴⁹

b. D.U.I./Less Safe Driver. In Ricks v. State,⁵⁰ the court of appeals reversed a D.U.I. conviction for insufficient evidence because the State failed to prove the elements of driving under the influence of alcohol to the extent that defendant was a less safe driver.⁵¹ Defendant Ricks was stopped for speeding. The officer smelled alcohol, Ricks blew a positive result on the alcosensor, and later registered results of.052 and .05 on the Intoxilyzer 5000. The officer did not administer any field sobriety tests.⁵² Even though Ricks was under twenty-one years old, he was charged with driving under the influence of alcohol to the extent that he was a less safe driver.⁵³ Because he was not charged with the offense of driving with more than 0.02 percent blood alcohol content while under the age of twenty-one,⁵⁴ the State had to prove impairment to sustain a conviction.⁵⁵ The court reversed the conviction because there was no evidence regarding defendant's conduct or appearance that...