Kilby v. the State , 335 Ga. App. 238 ( 2015 )


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  •                               SECOND DIVISION
    ANDREWS, P. J.,
    MILLER and BRANCH, JJ.
    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
    November 19, 2015
    In the Court of Appeals of Georgia
    A15A1596. KILBY v. THE STATE.
    ANDREWS, Presiding Judge.
    Lowanda Kilby was charged under a 60-count indictment with 29 counts of
    theft by taking, 29 counts of computer theft, and one count each of theft by deception
    and violation of the Georgia Racketeering Influenced & Corrupt Organizations Act.
    A jury found her guilty on every count. The trial court merged three counts of theft
    by taking into the racketeering conviction and each of the computer theft counts into
    the theft by taking convictions for sentencing. On appeal, Kilby argues that the
    evidence was insufficient to support her convictions on theft by taking and
    racketeering, and that the trial court erred in sentencing her for felony theft by
    deception and in failing to merge the remaining counts of theft by taking into each
    other when imposing her sentence. We find no error and affirm.
    On appeal from a criminal conviction, the defendant no longer enjoys a
    presumption of innocence. See Preston v. State, 
    300 Ga. App. 433
     (685 SE2d 420)
    (2009). We do not weigh the evidence nor assess the credibility of the witnesses, but
    determine only whether, viewing the evidence in the light most favorable to the jury’s
    verdict, “a rational trier of fact could have found the essential elements of [each]
    crime beyond a reasonable doubt.” (Citation and punctuation omitted.) Id.; see
    Jackson v. Virginia, 
    443 U. S. 307
    , 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
    So construed, the evidence adduced at trial showed that in 2008, Kilby was
    hired as the director of the Boggs Mountain Humane Shelter (“Boggs Mountain”), a
    non-profit animal shelter and animal control facility located in Rabun County. In
    January 2012, Boggs Mountain created a separate entity to perform its animal control
    functions (i.e., euthanizing unadoptable and/or dangerous animals), and Boggs
    Mountain itself became a no-kill shelter whose mission it was “to reduce animal
    overpopulation without euthanasia.” Kilby remained director of both facilities and
    reported to Boggs Mountain’s Board of Directors.
    Boggs Mountain offered a “Lucky Dog/Lucky Cat” sponsorship program
    whereby it accepted donations to cover the adoption fees and expenses associated
    with spaying/neutering and vaccinating less-adoptable (i.e., elderly or physically
    2
    challenged) animals in an effort to make them more appealing to potential owners.
    Donations could be made by the individual surrendering the animal or by any well-
    wisher desiring to support Boggs Mountain’s mission.
    At some point, Kilby’s promotion of the Lucky Dog/Lucky Cat program
    morphed into an absolute guarantee that for $100, a sheltered animal would be
    adopted and not euthanized. She trained her staff to promote the program in the same
    manner. Kilby gave no regard to the condition of the animal or whether it fell within
    the sponsorship program’s intended scope when making such guarantees and, indeed,
    went so far as to procure sponsorship money on dangerous and terminally ill animals
    that otherwise mandated euthanasia and were prohibited from entering Boggs
    Mountain.
    At the same time, Kilby began randomly ordering that sheltered, otherwise
    healthy Lucky Dogs and Lucky Cats be euthanized, sometimes on the same day on
    which they were admitted. On at least one occasion, Kilby accepted sponsorship
    money on two animals that had already been euthanized. The euthanizations were
    conducted without notice to the individual who paid the sponsorship fee and to
    whom, under Kilby’s direction, messages were often sent that the euthanized animal
    had been successfully adopted.
    3
    In June 2012, a whistleblowing employee at Boggs Mountain contacted the
    investigative team of a local television network to report Kilby’s misconduct. On July
    10, 2012, an investigative reporter posed as a potential animal donor and covertly
    videotaped Kilby promoting the Lucky Dog/Lucky Cat program as a way to guarantee
    an animal’s adoption and denying that such animals were ever euthanized at Boggs
    Mountain. The reporter also obtained videotape footage of two seemingly healthy
    dogs in the shelter that he had learned from the whistlerblower were scheduled to be,
    and in fact were, euthanized that same day. Later that afternoon, the reporter returned
    with his camera crew in full view to confront Kilby, who maintained that no “Lucky”
    animals were subject to euthanization and claimed that the two dogs previously
    filmed had been transferred to a different facility.
    The airing of the story prompted a criminal investigation through which the
    investigator learned that Kilby controlled all aspects of Boggs Mountain’s operations,
    including all euthanasia and money handling decisions. Kilby repeatedly reminded
    her staff that “[t]here is only one supervisor or boss here, and it’s me” and explicitly
    instructed them to “do as [they]’re told” and to never “question what I do or why.”
    The staff reported that all cash received at Boggs Mountain was given to Kilby, and
    that employees were not trained to give receipts to financial donors and rarely did so.
    4
    The investigation further revealed that Kilby had linked two PayPal accounts
    intended for Boggs Mountain donations to her personal bank accounts and routed to
    herself a total of $10,500 in donation money. Finally, the investigator learned that,
    despite earning at most an annual salary of $42,000, Kilby played a total of $258,000
    cash at Harrah’s Cherokee Casino for the years 2010, 2011, and 2012.
    The investigation resulted in Kilby’s indictment. The 29 counts of theft by
    taking and 29 counts of computer theft were based upon specific transactions
    occurring in March 2012 through July 2012 during which Kilby transferred Boggs
    Mountain’s sponsorship money into her personal bank accounts, and the single count
    of theft by deception was based upon Kilby’s solicitation of Lucky Dog/Lucky Cat
    sponsorship money using the false guarantee that sponsored animals would not be
    euthanized. The RICO violation was predicated upon four specific incidences of theft
    by taking. A jury ultimately convicted Kilby on every count. She filed a motion for
    new trial, which was denied, and this appeal follows.
    1. Kilby asserts that the evidence was insufficient to support her convictions
    on theft by taking and racketeering.1 Specifically, she contends that the State failed
    1
    Kilby also argues that the evidence was insufficient to support her convictions
    on computer theft. We need not consider that issue, however, because Kilby’s
    computer theft convictions merged into her theft by taking convictions for sentencing
    5
    to prove the money that she diverted to her personal accounts was the property of
    Boggs Mountain and that venue was proper in Rabun County. We will address each
    argument in turn.
    (a) Counts 2 thru 30 alleged that Kilby, while a fiduciary of Boggs Mountain,
    committed theft by taking in that she transferred a series of donations intended for
    Boggs Mountain into her own personal bank accounts. Specifically, the State
    presented the expert testimony of a forensic accountant who tracked 29 individual
    transactions in which money flowed from PayPal accounts attached to one of two
    email accounts, directorbmhs@windstream.com or directorbmhs@gmail.com, into
    one of two of Kilby’s bank accounts, First American Bank & Trust or 1st Franklin
    Financial. The expert identified the date and amount of each individual transaction,
    as well as the email account associated with the transaction and the receiving bank
    account. The expert then explained that a total of $2,680 was transferred into Kilby’s
    personal bank account at First American Bank & Trust using the PayPal account
    associated with directorbmhs@windstream.com, $824 was transferred into Kilby’s
    personal bank account at 1st Franklin Financial using the PayPal account associated
    with directorbmhs@windstream.com, and $7,046 was transferred into Kilby’s
    purposes. See Rainey v. State, 
    286 Ga. App. 682
    , 682, n.1 (649 SE2d 871) (2007).
    6
    personal bank account at 1st Franklin Financial using the PayPal account associated
    with directorbmhs@gmail.com. The total amount of misappropriated funds was
    $10,550.
    According to Kilby, the State’s failure to identify the payor in each PayPal
    transaction and to present testimony that the money was intended to go to Boggs
    Mountain as opposed to Kilby personally rendered insufficient the evidence of theft
    by taking and racketeering. Evidence of that sort was unnecessary, however, because
    Kilby herself testified and expressly admitted that the subject transactions involved
    donation money intended for and belonging to Boggs Mountain. Kilby maintained,
    however, that she was simply “fundraising” using her own personal accounts and had
    not yet informed the Boggs Mountain Board of Directors that she was doing so. But
    two members of the Board testified unequivocally that Kilby was never authorized
    to solicit funds and deposit them into her personal bank accounts, which both the
    expert witness and Boggs Mountain’s accountant deemed an unacceptable business
    practice.
    Based upon this evidence, this jury was clearly authorized to conclude that the
    money involved belonged to Boggs Mountain and to otherwise reject Kilby’s
    explanation for the transactions. See Vaughn v. State, 
    301 Ga. App. 391
    , 392 (687
    7
    SE2d 651) (2009) (“It is the jury’s prerogative to choose what evidence to believe and
    what to reject. Issues regarding the credibility of witnesses are in the sole province
    of the jury and only the jury may analyze what weight will be given each witness’s
    testimony.”) (citation and punctuation omitted). It follows that the evidence
    sufficiently supported Kilby’s convictions on 29 counts of theft by taking. See 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.”); Williams v. State, 
    297 Ga. App. 150
    ,
    150-151 (676 SE2d 805) (2009) (affirming appellant’s theft by taking convictions
    based upon evidence that she schemed to transfer victim’s cash into a third-party
    account which she then withdrew). Kilby’s racketeering charge was predicated upon
    four separate indicted incidents of theft by taking and, because the evidence was
    sufficient to sustain Kilby’s conviction on those predicate acts, the evidence was also
    sufficient to sustain her RICO conviction. See OCGA § 16-14-4 (a) (“It shall be
    unlawful for any person, through a pattern of racketeering activity or proceeds
    derived therefrom, to acquire or maintain, directly or indirectly, any interest in or
    control of . . . personal property of any nature, including money.”); see also OCGA
    8
    § 16-14-3 (5) (A) (xii) (“‘Racketeering activity’ means to commit . . . any crime
    which is chargeable by indictment under the laws of this state involving . . . [t]heft.”);
    Mosley v. State, 
    253 Ga. App. 710
    , 711-712 (1) (560 SE2d 305) (2002) (“To prove
    a RICO violation, the state must show that the defendant committed two or more
    predicate criminal acts of the type included in the RICO statute as part of an
    enterprise engaging in a pattern of racketeering activity.”); Thompson v. State, 
    211 Ga. App. 887
    , 889 (1) (a) (440 SE2d 670) (1994).
    (b) Kilby further argues that the State failed to prove venue as to the theft by
    taking charges.2 Georgia law provides that in a prosecution for the crime of theft by
    taking, venue is proper “in any county in which the accused exercised control over
    the property which was the subject of the theft.” OCGA § 16-8-11. The State may
    prove venue using both direct and circumstantial evidence. See Lanham v. State, 
    291 Ga. 625
    , 626 (2) (732 SE2d 72) (2012).
    Kilby was prosecuted in Rabun County. The State elicited direct testimony that
    Boggs Mountain was located in Rabun County, that Kilby’s residence was located in
    Rabun County, that First American Bank & Trust was located in Rabun County, and
    2
    Kilby further challenges proof of venue as to the 29 counts of computer theft.
    As we recognized in Division 1 (a), however, those convictions were merged and
    Kilby’s arguments need not be considered. See Rainey, 286 Ga. App. at 682, n.1.
    9
    that one branch of 1st Franklin Financial was located in Rabun County. Kilby herself
    testified that her “fundraising” efforts were conducted in Rabun County, on either her
    home or her work computer. This evidence was more than sufficient to prove that
    Kilby exercised control over the money at issue in Rabun County and thus establish
    venue. See OCGA § 16-8-11; Erick v. State, 
    322 Ga. App. 71
    , 74-75 (744 SE2d 69)
    (2013). Kilby’s argument that she drove to a 1st Franklin Financial branch in an
    adjoining county in order to withdraw funds from that account does nothing to change
    this result. See Williams v. State, 
    297 Ga. App. 150
    , 151 (2) (676 SE2d 805) (2009)
    (distinguishing between control and possession and noting that the law requires only
    that a defendant exert control over the subject property in the prosecuting county in
    order to render venue proper).
    2. Kilby argues that the trial court erred in sentencing her for a felony, as
    opposed to a misdemeanor, on her conviction for theft by deception.3 The delineation
    in the law is defined by the monetary amount of the theft: if the property which was
    the subject of the theft is more than $1,500 in value, the crime is a felony; if the
    3
    See OCGA § 16-8-3 (“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.”)
    10
    property which was the subject of the crime is $1,500 or less, the crime is a
    misdemeanor. See OCGA § 16-8-12 (a) (1) (B), (C).
    Count 1 of the indictment alleged that Kilby committed theft by deception in
    that she unlawfully obtained money, the property of 25 listed individuals with a value
    greater than $1,500 in the aggregate, with the intent to deprive the owners of the
    property by deceitful means in that she created a false impression that Boggs
    Mountain was a no-kill shelter and that payment of funds would ensure that the listed
    individual’s animal(s) would not be euthanized.4 Kilby argues that she was entitled
    to a misdemeanor sentence because several of the individuals alleged in the
    indictment either did not speak directly to Kilby or could not identify with whom he
    or she spoke and/or because the State failed to establish that more than $1,500 of the
    money at issue was paid directly to Kilby (as opposed to her staff).
    Kilby’s argument lacks merit. The evidence fully supported a finding that Kilby
    guardedly controlled all aspects of the Boggs Mountain facility, including how the
    Lucky Dog/Lucky Cat program was to be promoted and which animals were to be
    euthanized. The evidence further established that all sponsorship money, whether in
    4
    We note that Count 1 of the indictment did not allege that Kilby committed
    the crime of theft by deception as a fiduciary of Boggs Mountain. See OCGA § 16-8-
    12 (a) (3).
    11
    the form of cash or other payment, was directed to and controlled by Kilby, who
    retained sole discretion to determine its direction and use. As such, a reasonable juror
    was authorized to conclude that the State proved each of the essential elements of
    theft by deception beyond a reasonable doubt. See OCGA § 16-2-21 (“Any party to
    a crime who did not directly commit the crime may be indicted, tried, convicted, and
    punished for commission of the crime upon proof that the crime was committed and
    that [s]he was a party thereto, although the person claimed to have directly committed
    the crime has not been prosecuted or convicted, has been convicted of a different
    crime or degree of crime, or is not amenable to justice or has been acquitted.”); Hill
    v. State, 
    282 Ga. App. 743
    , 745 (2) (639 SE2d 637) (2006) (“OCGA § 16-2-21 does
    not require that one who is a party to the crime be indicted as a party; rather, it
    provides that one who is a party to the crime may be indicted, convicted and punished
    for that crime upon proof that he was a party to the crime.”).
    3. Finally, Kilby argues that the trial court erred in failing to merge each of the
    remaining non-merged counts of theft by taking into one count because, she contends,
    there is no material distinction between the offenses.5
    5
    As before, Kilby’s argument the 29 counts of computer theft should also have
    been merged will not be considered. See Rainey, 286 Ga. App. at 682, n.1.
    12
    The doctrine of merger prohibits the imposition of multiple punishment when
    the same conduct establishes the commission of more than one crime. See OCGA §
    16-1-7 (a); Drinkard v. Walker, 
    281 Ga. 211
    , 212-213 (636 SE2d 530) (2006).
    Significantly, however, “the multiple convictions must be premised upon the same
    conduct in order for the rule to apply.” (Citation and punctuation omitted.) McKenzie
    v. State, 
    302 Ga. App. 538
    , 539 (1) (a) (691 SE2d 352) (2010); see OCGA § 16-1-7
    (a); Drinkard, 281 Ga. at 212. And “if the underlying facts show that one crime was
    completed prior to the second crime, there is no merger.” (Citation and punctuation
    omitted.) McKenzie, 302 Ga. App. at 539 (1) (a).
    Here, each and every transaction in which Kilby, a fiduciary of Boggs
    Mountain, took money belonging to Boggs Mountain with the intent of depriving the
    facility of that money constituted a separate and distinct completed crime. See OCGA
    § 16-8-2. The convictions, therefore, did not merge. Cf. Arnold v. State, 
    293 Ga. App. 395
    , 398 (3) (667 SE2d 167) (2008) (holding that each time appellant unlawfully took
    money from the victim, he completed a separate and distinct crime, despite the fact
    that the victim remained the same).
    Judgment affirmed. Miller and Branch, JJ., concur.
    13
    

Document Info

Docket Number: A15A1596

Citation Numbers: 335 Ga. App. 238, 780 S.E.2d 411

Judges: Andrews, Miller, Branch

Filed Date: 11/23/2015

Precedential Status: Precedential

Modified Date: 11/8/2024