CARR v. the STATE.

FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, 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
June 14, 2019
In the Court of Appeals of Georgia
A19A0346. CARR v. THE STATE.
COOMER, Judge.
Following a jury trial, Jeffrey Carr was convicted on three counts of violating
the Georgia Racketeer Influenced and Corrupt Organizations Act (“RICO”).1 On
appeal, Carr challenges the sufficiency of the evidence to convict him on all counts,
and argues the trial court erred in its instruction to the jury. Carr further contends that
the trial court erred in the admission of certain opinion and ultimate issue testimony
that was not based on a witness’ first-hand knowledge. Lastly, Carr argues that his
trial counsel was ineffective. Finding no error, we affirm.
1
Carr was tried and convicted on all counts along with his co-defendant father,
Joseph Carr. Joseph Carr’s conviction is not a subject of this appeal.
On appeal from a criminal conviction, we view the evidence in the
light most favorable to the verdict, with the defendant no longer
enjoying a presumption of innocence. We neither weigh the evidence
nor judge the credibility of witnesses, but determine only whether, after
viewing the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
Falay v. State, 320 Ga. App. 781, 781 (740 SE2d 738) (2013) (citations omitted). So
viewed, the evidence established that between 2009 and 2013 Carr took or received
more than $3,046,934 from a 93 year old widow. The widow, who is characterized
as a very frugal person, has an estate worth an estimated 20 to 25 million dollars. At
trial, the widow testified that she never gave Carr permission to take three and a half
million dollars from her, denied ever giving gifts of thousands of dollars to anyone,
and denied ever purchasing vehicles for anyone.
Following the widow’s testimony at trial, the jury heard testimony from the
widow’s former business manager and attorney-in-fact under a previous financial
power of attorney, Charles Olsen. Olsen testified that he and the widow would meet
weekly or every other week so that he could assist the widow with financial and legal
matters. Olsen served as the widow’s attorney-in-fact from 2007 to 2010. Olsen stated
that in the time that he served as her attorney-in-fact and business manager, only once
2
did the widow give a gift worth thousands of dollars. Olsen, in his capacity as the
widow’s business manager, learned that certain property belonging to the widow had
been sold without his knowledge or involvement at Carr’s behest for a price below
real market value. Olsen was ultimately removed as the widow’s attorney-in-fact after
Carr insinuated himself into the widow’s life and Olsen’s relationship with the widow
diminished. During the four years Olsen served as the widow’s business manager and
attorney-in-fact, he received approximately $65,000 as compensation for his services.
The widow’s conservator testified that he was appointed by the court to
represent the widow in 2014. He became the widow’s personal attorney in March
2013, and was given financial power of attorney about a month later. At that time, the
widow’s taxes from 2010 to 2013 had not been paid, her estate was in disarray, and
the widow was not aware of the seriousness of her financial condition. The
conservator, who specializes in fiduciary law, testified that Carr engaged in egregious
transactions while administering the widow’s estate. Specifically, the conservator
testified that there was “transfer after transfer after transfer after transfer of money”
to Carr’s name from the widow’s accounts, and noted that such transfers were
uncommon for someone with a financial power of attorney. The conservator found
two transactions to Carr’s personal accounts particularly suspicious and problematic:
3
one transfer for around $1 million and another transfer for around $700,000. Those
transfers related to the controversial sale of property that had belonged to the widow,
at which the widow was not present for the sale. The conservator noted the
irregularity in how over the course of one year, nearly 100 checks were written to
Carr in flat amounts with no real accounting as to how and why they were written.
The conservator testified that throughout his time of involvement with the widow’s
estate, she never directed him to give gifts of thousands of dollars to non-family
members.
The investigator in charge of the case testified that he first became aware of
potential irregularities with the widow’s bank account in 2011. The investigator
discovered that 47 checks totaling $507,735 were drawn on an account that was
funded by the widow. The investigator stated that several of the checks drawn on the
widow’s account were made payable to Carr for reimbursement of the widow’s
expenses; however, the investigator noted that Carr effectively double dipped because
payments of those same expenses were paid directly out of the widow’s account.
There were a total of 96 transactions where checks were written payable to Carr
wherein the memo line of the checks indicated that the funds were for specific
purposes to be paid by Carr on behalf of the widow, yet the investigator could not
4
find the corresponding transactions from Carr’s account to show the payments had
actually been made.
The investigator further testified that through undue influence, Carr gained the
trust of the widow and ultimately became the widow’s ‘s attorney-in-fact under a
financial power of attorney. His investigation revealed that Carr used his influence
over the widow to isolate her from her friends and anyone who wanted to contact her.
In one particular instance, after the widow was hospitalized to treat injuries from a
fall, Carr arranged for her to receive rehabilitative treatment fifty to sixty miles away
from her Cobb County home at a facility in Gainesville, Georgia, five miles from
Carr’s residence. The jury heard testimony that although the widow had expressed a
desire to go to a rehabilitation facility near her home, Carr had her move to an
assisted living facility near his home. Later, under questionable circumstances, the
widow was moved to the residence of Carr’s mother and father, who also lived in
Gainesville, Georgia. A close friend of the widow testified that for the three years
leading up to the trial, the widow had “just sort of disappeared” and that despite her
best efforts, she was unable to get in contact with the widow. Starting in 2011, there
were approximately three or four inquiries by adult protective services related to
5
allegations of potential abuse of the widow. However, none of the referrals to adult
protective services resulted in any official action.
An expert in forensic accounting and fraud examination testified that after
conducting a review of the various accounts belonging to the widow, Carr, and his
father, the expert discovered that over $3 million left the widow’s accounts and was
designated for Carr, Carr’s father, and other Carr family members. The expert noted
that while some of the funds designated for Carr had been spent on “fun” items such
as basketball tickets, clothing, jewelry, and other miscellaneous spending, she could
not discern any benefit the widow may have received from the spending. The expert
further testified that the widow was still paying her own expenses throughout the
relevant period.
The expert went on to testify regarding the predicate acts 1 through 25 in the
indictment and confirmed them all with some exceptions. An example of an exception
was in relation to predicate act 8 where the expert could see that approximately
$63,000 in cash was withdrawn from the widow’s accounts, but could not definitively
state whether Carr or his father had deposited the checks or received the cash. The
expert explained that while she could confirm from the documents that certain
transactions occurred, she could not confirm who actually received the cash. The
6
expert also testified that although she is not a handwriting expert, as part of her
training and responsibility she looks for things that are “odd and suspicious” and is
trained to identify discrepancies in signatures and handwriting. The expert stated that
during her investigation, she noticed substantial differences in the signatures on the
checks she reviewed.
Carr was indicted on three counts of violating Georgia’s RICO Act, and
ultimately convicted on all counts and sentenced to 40 years with 10 to serve in
confinement. Carr filed a motion for new trial, which the trial court denied following
a hearing. This appeal followed.
1. As a threshold matter, Carr contends that the evidence adduced at trial was
insufficient for a jury to find him guilty beyond a reasonable doubt of all three counts
in the indictment. More specifically, Carr argues that (1) the indictment did not
sufficiently allege and the State did not prove any acts involving theft; and (2) there
was no evidence of concealment to support the money laundering predicates. We
disagree.
In counts 1 through 3 of the indictment, the State charged Carr in considerable
detail with conspiring to acquire money and property through a pattern of
racketeering activity (OCGA § 16-14-4 (c)) which was carried out by his participation
7
in an unlawful enterprise (OCGA § 16-14-4 (a)-(b)). OCGA § 16-14-4 (2010)
provides that:
(a) It is 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 any enterprise, real property,
or personal property of any nature, including money.
(b) It is unlawful for any person employed by or associated with any
enterprise to conduct or participate in, directly or indirectly, such
enterprise through a pattern of racketeering activity.
(c) It is unlawful for any person to conspire or endeavor to violate any
of the provisions of subsection (a) or (b) of this Code section.
“A person participates in a pattern of racketeering activity when he or
she engages in at least two acts of racketeering activity in furtherance of
one or more incidents, schemes, or transactions that have the same or
similar intents, results, accomplices, victims, or methods of commission
or otherwise are interrelated by distinguishing characteristics and are not
isolated incidents.”
Cotman v. State, 342 Ga. App. 569, 585 (2) (804 SE2d 672) (2017) (footnote and
punctuation omitted). “A conviction under RICO is a two-step process: (1) proving
that appellant has committed two or more offenses of the sorts included in the RICO
8
statutes, and (2) proving that the two or more offenses have been committed as a part
of an enterprise engaging in a pattern of racketeering activity, as defined in the RICO
Act.” Martin v. State, 189 Ga. App. 483, 495 (10) (376 SE2d 888) (1988).
The indictment charged Carr with committing thirty-six predicate acts: twenty-
five acts involving theft and eleven acts involving money laundering. As to the acts
involving theft, OCGA § 16-8-2 provides that “[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.” Despite Carr’s argument that he did not unlawfully obtain the widow’s
property because the money he received were gifts and/or reimbursement for his
service as the widow’s attorney-in-fact, the widow testified that she never authorized
Carr to take $3.5 million from her. The victim’s court appointed conservator also
testified that Carr engaged in egregious transactions whereby multiple checks were
written to Carr from the widow’s accounts with no clear purpose or benefit to the
widow. Moreover, a forensic accounting expert testified that her investigation
confirmed several predicate acts of theft committed by Carr.
9
We note that a RICO conviction only requires proof that the defendant has
committed two or more offenses of the kind included in the RICO statutes, and the
State is under no obligation to prove all of the predicate offenses alleged in the
indictment. See Bethune v. State, 198 Ga. App. 490, 491 (1) (402 SE2d 276) (1991).
Consequently, the jury could have adduced from the ample evidence presented at trial
at least two instances involving theft as charged in the indictment where Carr used
his position as attorney-in-fact to unlawfully appropriate money from the widow for
his own purpose beyond a reasonable doubt.
As to the money laundering predicate acts, OCGA § 7-1-915 (c) (2) provides
that a person commits the offense of money laundering when that person
knowing that the moneys involved in a currency transaction represent
the proceeds of some form of unlawful activity, conducts or attempts to
conduct such a transaction which in fact involves the proceeds of
specified unlawful activity . . . [and] [k]nowing that the transaction is
designed in whole or in part to conceal or disguise the nature, the
location, the source, the ownership, or the control of the proceeds of
specified unlawful activity[.]
The evidence established that Carr, who was insolvent prior to meeting the widow,
had accumulated over $1.7 million dollars from the widow’s account within 14
months. As previously noted, the State presented evidence that Carr, using his status
10
as the widow’s ‘s attorney-in-fact under her financial power of attorney to write
checks from the widow’s accounts, did convert funds from the widow’s account
without her permission under the false pretense that the funds were for the widow’s
expenses or were gifts from the widow, and converted said funds for his personal use
to purchase, among other things, five automobiles, professional basketball season
tickets, jewelry, and other personal spending.
Viewed in the light most favorable to the verdict, we find that there was ample
evidence presented to convict Carr of at least two predicate acts of theft or money
laundering. The predicate acts alleged in the indictment met the definition of a
“pattern of racketeering activity” as required under OCGA § 16-14-3 (8) (2010) of
“at least two [incidents] of racketeering activity . . . that have the same or similar
intents, results, accomplices, victims, or methods of commission or otherwise are
interrelated by distinguishing characteristics and are not isolated incidents.” The State
established a number of instances of racketeering activity that had the same intents
and results (acquisition of money and property), the same victim (the widow), and the
same accomplices (Carr, his father, and another person). The evidence further
established that these instances were not isolated, but a continuing pattern of criminal
11
activity. See Overton v. State, 295 Ga. App. 223, 232 (1) (c) (671 SE2d 507) (2008).
Accordingly, we find no error.
2. Carr next argues that the trial court committed plain error in its instruction
to the jury on money laundering.2 Carr contends that because the jury was not
provided with an instruction on the essential elements of the indicted charge, Carr’s
convictions should be vacated. We disagree.
It is well established that “[j]ury charges cannot be viewed in isolation. Rather,
in determining whether there was plain error, jury charges must be read and
considered as a whole.” McCullough v. State, 330 Ga. App. 716, 724 (2) (769 SE2d
138) (2015) (citations and punctuation omitted). Plain error is defined as “that which
is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or
which seriously affects the fairness, integrity or public reputation of a judicial
proceeding.” State v. Kelly, 290 Ga. 29, 32-33 (2) (a) (718 SE2d 232) (2011)
(citations and punctuation omitted). Georgia courts have adopted the following four
prong test to analyze plain error:
2
“[A]ppellate review for plain error is required whenever an appealing party
properly asserts an error in jury instructions.” State v. Kelly, 290 Ga. 29, 32 (1) (718
SE2d 232) (2011). See also OCGA § 17-8-58 (b).
12
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 the
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
affects the fairness, integrity or public reputation of judicial
proceedings.
Id. at 33 (2) (a) (citations, punctuation, and emphasis omitted). Accordingly,
“plain-error analysis . . . requires the appellant to make an affirmative showing that
the error probably did affect the outcome below.” Shaw v. State, 292 Ga. 871, 873 (2)
(742 SE2d 707) (2013) (citations and punctuation omitted).
In the instant case, the indictment charged that Carr committed the predicate
act of money laundering in violation OCGA § 7-1-915 (c) (2). The State was required
to prove that Carr (1) knew the money involved in the currency transaction were the
proceeds from unlawful activity; (2) conducted or attempted to conduct a transaction
13
that involved the proceeds of specified unlawful activity;3 (3) used the funds or
proceeds from the specified unlawful activity; and (4) knew that the transaction was
designed in whole or in part to conceal or disguise the nature, the location, the source,
the ownership, or the control of the proceeds of the specified unlawful activity. See
OCGA § 7-1-915 (c) (2). However, in its instruction to the jury, the trial court
erroneously gave the following charge with no objection :
A person commits currency transaction fraud or money laundering when
that person, knowing that the monies involved in the currency
transaction represent the proceeds of some form of unlawful activity,
conducts or attempts to conduct such a transaction which in fact
involves the proceeds of specified unlawful activity with the intent to
promote the carrying on of specified unlawful activity. (emphasis
supplied).
In its order denying Carr’s motion for new trial, the trial court found that while
the first two prongs of Kelly were met—that is, the charge given was erroneous and
obviously so—Carr failed to show that the giving of the incorrect money laundering
3
The specific unlawful activity included the purchase of five automobiles,
jewelry, car insurance, professional basketball season tickets, home remodeling,
various withdrawals and deposits, and other miscellaneous spending.
14
charge changed the outcome of the trial or that the error seriously affected the
fairness, integrity, or public reputation of the proceedings. We agree.
Where the indictment charges a defendant committed an offense by one
method, it is reversible error for the court to instruct the jury that the
offense could be committed by other statutory methods with no limiting
instruction. The defect is cured, however, where . . . the court provides
the jury with the indictment and instructs jurors that the burden of proof
rests upon the State to prove every material allegation of the indictment
and every essential element of the crime charged beyond a reasonable
doubt.
Sharpe v. State, 291 Ga. 148, 151 (4) (728 SE2d 217) (2012) (citation omitted).
Reviewing the jury instructions as a whole, the record clearly demonstrates that the
trial court read the indictment to the jury and the jury had a copy of the indictment
with them in the jury room during deliberations. The trial court properly instructed
the jury on the state’s burden to prove every essential element of the crimes charged
beyond a reasonable doubt, and instructed the jury that it would be authorized to find
Carr guilty if it believed beyond a reasonable doubt that he committed the crimes as
set forth in the indictment. The trial court further defined the crimes alleged in the
indictment, instructed the jury on the essential elements of the crimes alleged in the
indictment, and reminded the jury that the burden of proof does not shift to the
15
defendant. Under these circumstances, Carr cannot demonstrate plain error. See
Faulks v. State, 296 Ga. 38, 39 (2) (764 SE2d 846) (2014) (no reversible error where
court charged jury on other forms of aggravated assault when indictment only charged
aggravated assault with deadly weapon).
Additionally, we are not persuaded by Carr’s argument that because the jury
did not specify which predicate acts it found Carr guilty of, there is no way to know
what predicate acts the jury did find, and as such, Carr may have been found guilty
of a crime for which he was not indicted.
Evidence of two predicate acts will sustain the RICO conviction[;]
where the evidence authorized the jury to find that defendant committed
at least two predicate acts, we need not consider the remaining predicate
acts charged. This is true even where certain predicate offenses were
improperly charged in the indictment; if two remaining predicate
offenses were proven beyond a reasonable doubt, the proof was
sufficient to support a RICO conviction.
Dorsey v. State, 279 Ga. 534, 540 (2) (a) (615 SE2d 512) (2005) (citations and
punctuation omitted). Thus, even with the removal of the money laundering predicate
act, Carr’s RICO convictions are overwhelmingly supported by the evidence that he
committed predicate acts involving theft. See Mosley v. State, 253 Ga. App. 710, 712
(1) 560 SE2d 305 (2002) (“RICO conviction requires proof that a defendant has
16
committed two or more offenses of the kind included in the RICO statute; it does not
require the State to prove all of the alleged predicate offenses.”). See also Thompson
v. State, 211 Ga. App. 887, 888-890 (1) (b) (440 SE2d 670) (1994) (unnecessary for
appellate court to address possible defects in certain alleged predicate acts where
removal of those acts leaves numerous other predicate acts which properly support
RICO conviction).
3. Carr next argues that the trial court erred in admitting non-expert opinion
testimony regarding the genuineness of handwriting. We disagree with Carr’s
characterization of the subject testimony and find no error.
“The admission or exclusion of lay opinion evidence is committed to the sound
discretion of the trial court, and appellate courts will not interfere with such a ruling
absent an abuse of discretion.” Dagne v. Schroeder, 336 Ga. App. 36, 38 (2) (783
SE2d 426) (2016) (citation omitted). OCGA § 24-7-701 (a) provides that “[i]if the
witness is not testifying as an expert, the witness’s testimony in the form of opinions
or inferences shall be limited to those opinions or inferences which are (1) [r]ationally
based on the perception of the witness; (2) [h]elpful to a clear understanding of the
witness’s testimony or the determination of a fact in issue; and (3) [n]ot based on
scientific, technical, or other specialized knowledge[.]
17
At trial, the State tendered a witness who was qualified without objection as
an expert in forensic accounting and fraud examination. The expert testified that as
part of her training and responsibility, she looks for “things that are odd and
suspicious, including discrepancies in the signatures and handwriting” when
reviewing documents. In particular to the materials reviewed in this case, the expert
testified that while she is not a handwriting expert and could not confirm whose
signature was on the suspicious deposits she reviewed, she could identify differences
in the signatures she saw. Contrary to Carr’s argument, the expert did not testify as
to the genuineness of the handwriting on the documents she reviewed, which would
have been outside the purview of her expertise, but rather, her testimony was
rationally based on her perception of the materials she reviewed. The expert did not
testify as to whether the signatures on the checks belonged to the widow, Carr, or
some other person. The expert merely testified that the signatures on the checks she
reviewed were substantially different and went on to describe the differences she
noticed in her review of the materials.
Because the record reflects that the expert had the opportunity to form a
reasoned opinion as to the discrepancies in the signatures she saw on various checks
18
while reviewing the financial records in this case, the trial court did not abuse its
discretion by ruling that such testimony was admissible.
4. Carr contends the trial court committed reversible error by admitting ultimate
issue testimony that was not based on the witness’s firsthand knowledge. Specifically,
Carr argues that the admission over objection of the State’s expert’s opinion
testimony that Carr had converted certain checks for his personal use without benefit
to the victim was not based on any firsthand knowledge. We disagree.
Generally, “witnesses are not authorized to express their opinions regarding an
ultimate issue in a case, because to do so would invade the factfinding province of the
jury.” Walton v. State, 291 Ga. App. 736 739 (2) (662 SE2d 820) (2008) (footnote
omitted). “However, expert opinion testimony on even the ultimate issue is
admissible where the conclusion of the expert is one beyond the ken of the average
layman.” Id. at 739-740 (2) (citation omitted). In the instant case, the State’s forensic
accounting and fraud expert testified that after conducting an analysis of the financial
records and investigating various transactions, she found transactions where Carr
converted the widow’s funds to his personal use, and from those transactions, the
expert could not discern any financial benefit to the widow. The expert’s testimony
did not reach the question as to whether Carr violated the RICO Act as alleged in the
19
indictment. The expert’s testimony was an assessment of facts and not a legal
conclusion or a conclusion constituting a mixture of law and fact, and provided the
jury with an explanation of the expert’s findings after conducting an investigation.
See Fortner v. Town of Register, 289 Ga. App. 543, 546 (1) (657 SE2d 620) (2008)
(expert testimony admissible where testimony did not opine as to the ultimate issue
for the jury but instead concerned the sequence of events leading up to the event).
5. Lastly, Carr contends that his conviction should be reversed because he
received ineffective assistance of counsel at trial. Carr argues that his trial counsel’s
failure to file a general demurrer and object to the erroneous jury instruction on
money laundering was so harmful to his ability to receive a fair trial as to require
reversal of his conviction. We disagree.
To prevail on a claim of ineffective assistance, [Carr] must prove both
that the performance of his lawyer was deficient and that he was
prejudiced by this deficient performance. To show that the performance
of his lawyer was deficient, [Carr] must prove that [he] performed [his]
duties at trial in an objectively unreasonable way, considering all the
circumstances, and in the light of prevailing professional norms. And to
show that he was prejudiced by the performance of his lawyer, [Carr]
must prove a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
20
undermine confidence in the outcome. This burden, though not
impossible to carry, is a heavy one.
Arnold v. State, 292 Ga. 268, 269-270 (2) (737 SE2d 98) (2013) (citations and
punctuation omitted). “An insufficient showing on either prong relieves the reviewing
court of the need to address the other prong.” Maurer v. State, 320 Ga. App. 585, 591
(6) (740 SE2d 318) (2013) (citation and punctuation omitted).
a. Carr argues that the indictment failed to adequately allege theft as a predicate
act and thus, trial counsel’s failure to file a general demurrer was deficient. More
specifically, Carr challenges the predicates involving theft on the basis that without
a specific reference to a statute for theft, standing alone the acts alleged in the
indictment cannot constitute a RICO predicate. We disagree.
“A general demurrer challenges the very validity of the indictment and may be
raised anytime prior to judgment; the special demurrer objects merely to its form or
seeks more information and must be raised before pleading to the indictment.”
Chapman v. State, 318 Ga. App. 514, 516 (1) (a) (733 SE2d 848) (2012) (footnote
and puncutation omitted).
It is well established that the test for determining whether an indictment
is sufficient to withstand a general demurrer is whether it contains the
elements of the offense intended to be charged, and sufficiently apprises
21
the defendant of what he must be prepared to meet, and in case any other
proceedings are taken against him for a similar offense, whether the
record shows with accuracy to what extent he may plead a former
acquittal or conviction. Thus, if the accused can admit all the indictment
charges and still be innocent of having committed any offense, the
indictment is defective.
Id. (footnote and punctuation omitted). “While racketeering activity must have a
crime as its objective, OCGA § 16-14-3 (9) (A) [(2012)] includes within the
definition of racketeering activity to commit, to attempt to commit, or to solicit,
coerce, or intimidate another person to commit any crime which is chargeable by
indictment.” Dorsey, 279 Ga. at 541 (2) (c).
In its order denying Carr’s motion for new trial, the trial court noted that the
22-page indictment contained “an extremely detailed scheme” which included “the
parties,[Carr], and an overview of the State’s allegations and facts of the case as well
as the overt acts and predicate acts of [Carr].” The trial court concluded that the
indictment, when read as a whole, clearly set forth acts involving theft as
contemplated within the definition of racketeering activity by OCGA § 16-14-3 (9)
(B) (2012) (“‘Racketeering activity’ shall also mean any act or threat involving . . .
theft[.]”) The indictment charged Carr with “acts involving theft” as part of an
22
overarching scheme to unlawfully acquire money and property. The transactions
which the State alleges are criminal racketeering charges are specific money
transactions involving specific persons, places, amounts, items, and dates such that
Carr was sufficiently apprised of the particular charges against him. See State v.
Pittman, 302 Ga. App. 531, 533 (690 SE2d 661) (2010) (“Due process is satisfied
where an indictment puts a defendant on notice of the crimes with which he is
charged and against which he must defend.” (citation omitted)). Accordingly, Carr
has not demonstrated he was prejudiced by his trial counsel’s failure to act. See
Coleman v. State, 318 Ga. App. 478, 482 (2) (735 SE2d 788) (2012) (“a defendant
who was not misled to his prejudice by any imperfection in the indictment (or
accusation or citation) cannot obtain reversal of his conviction on that ground.”
(footnote omitted)).
Moreover, notwithstanding Carr’s trial counsel’s testimony at the motion for
new trial hearing that although he remembered reviewing the predicate acts alleged
in the indictment along with the discovery, he could not remember whether he
considered filing a general demurrer or the reasons why he did not do so; nothing in
the record suggests that, had he filed a general demurrer, the trial court would have
granted it. See Bradford v. State, 327 Ga. App. 621, 627 (2) (760 SE2d 630) (2014)
23
(where indictment was sufficient to survive a general demurrer, trial counsel’s failure
to file a general demurrer could not be deemed deficient performance). Therefore the
indictment was sufficient to satisfy due process and withstand a general demurrer, and
Carr’s trial counsel was not constitutionally ineffective for failing to challenge it.
Smith v. State, 303 Ga. 643, 647-648 (II) (B) (814 SE2d 411) (2018).
b. Carr next argues that trial counsel was ineffective for failing to object to the
erroneous jury instruction on money laundering. However, as discussed more fully
in Division 2 of this opinion, Carr cannot demonstrate with reasonable probability
that but for trial counsel’s failure to object, the outcome of the case would have been
different. See Daughtry v. State, 296 Ga. 849, 859-861 (2) (f)-(h) (770 SE2d 862)
(2015). “Where an appellant fails to meet [his] burden in establishing one prong. . .
, we need not review the other, as a failure to meet either of the prongs is fatal to an
ineffectiveness claim.” Leanos v. State, 303 Ga. 666, 669 (2) (814 SE2d 332) (2018)
(citation omitted).
Judgment affirmed. Doyle, P. J., and Markle, J., concur.
24