LAW v. the STATE.

FIFTH DIVISION
MILLER, P. J.,
RICKMAN 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
March 12, 2019
In the Court of Appeals of Georgia
A18A1792. LAW v. THE STATE.
RICKMAN, Judge.
William Law, Jr. was indicted on 100 counts of criminal conduct related to his
financial oversight of his elderly mother’s affairs. At trial, he was convicted on 12 of
those counts: Count 2 - exploitation of a disabled adult; Count 3 - perjury; Count 4 -
using a false document; and Counts 92-100 - nine counts of theft by taking. For the
reasons that follow, we affirm.
Construed in favor of the verdict, the facts as developed at trial show that in
late 2006, Law’s 88-year old mother was diagnosed with Alzheimer’s disease, and
two year’s later, Teresa, Law’s sister, who had been managing their mother’s finances
and held her power of attorney, died; Teresa and her husband had three children.
After a few months during which Teresa’s husband, who succeeded to holding the
power of attorney, managed the mother’s affairs, Law told his brother-in-law that he
did not want his brother-in-law involved with his mother’s affairs; and Law’s attorney
informed the brother-in-law “that [his] services weren’t needed any more.” At that
time, in addition to various real property and some stock investments, Law’s mother’s
bank accounts were worth in excess of $350,000. By this time, Law’s mother’s
mental condition had deteriorated to “moderate dementia.” Law then ordered that his
mother was not allowed to leave the house with anyone other than him, he banned his
brother-in-law and a niece from visiting, and he took control of his mother’s finances.
Law’s second sister, Beverly, who had a son, died suddenly some time thereafter but
prior to her mother’s death.
On February 11, 2009, Law’s mother executed a new durable power of attorney
making Law her attorney in fact; a new will, naming Law as the executor of her
estate; and an advanced directive for healthcare, naming Law as her agent therein.
The prior will distributed real property to each of her three children, and it divided
the remainder of the estate equally among her children and their descendants. The
new will removed all references to individual properties, but it provided that the
remainder of the estate would pass in one-third shares to her children or to the “lineal
descendants” of any deceased child. Shortly after becoming his mother’s attorney in
2
fact, Law’s name was added to three of his mother’s bank accounts, and he opened
another account in their joint names.
Two years later, Law’s mother was diagnosed with “severe dementia” and
assessed as not competent to handle her own affairs. During this time, Law drove his
mother to an attorney’s office where she signed a gift deed to Law transferring title
to her personal residence (while retaining a life estate). She also cancelled a security
deed associated with a $46,550 loan to Law. Four months after that, Law moved his
mother to a long-term memory care facility because she required 24-hour care. Law
then rented out his mother’s residence and, while his mother was still alive, kept the
rent money for himself. Law also instructed the employees at the facility to prohibit
his brother-in-law and a granddaughter from visiting without prior approval from
Law and to call the police if they did, which occurred on one occasion.
On August 29, 2011, Law filed a verified Petition for Appointment of Guardian
and/or Conservator (the “Petition”), for his mother and her assets, on the ground that
she had “severe dementia.” The Petition failed to list lineal descendants as required
by law.1 The Petition also failed to disclose that Law previously “[had] been
1
Law was required to list “all living children, if any, whose addresses are
known. If there are no living adult children whose addresses are known, then list at
least two adults in the following order of priority: lineal descendants of the proposed
3
nominated to serve under a . . . durable power of attorney for healthcare. . . or other
instrument that deals with the management of the person of the proposed ward” or
that he “[had] been nominated to serve under a power of attorney, . . . or other
instrument that deals with the management of the property of the proposed ward in
the event of incapacity.” The Petition also failed to disclose, as required, that Law had
conflicts of interest in that he co-owned joint accounts and certain real property with
his mother. And page 12 of the petition, which required Law to list all of his mother’s
assets, was not included in the filing. The State presented further evidence that all of
the information in the Petition came from Law and that he was asked to confirm that
the information was true, accurate, and correct. In fact, Law verified the facts set forth
in the Petition.
Shortly thereafter, the probate court granted the Petition and found that Law’s
mother was in need of a guardian and a conservator, that she had no assets, and that
Law was her sole heir. Given that there were no assets listed in the Petition, the
ward. . . .” See also OCGA §§ 29-4-10 (b) (7) (C) (i); 29-5-10 (b) (8) (C) (i); see also
Black’s Law Dictionary (10th ed. 2014) (a lineal descendant is “[a] blood relative in
the direct line of descent. Children, grandchildren, and great-grandchildren are lineal
descendants.”). In his testimony, Law stated that “lineal descendants’ meant those
“who [are] the closest people to [his mother].” He then testified that he thought that
his mother’s nieces had a closer link to his mother than her grandchildren, and that
is why he listed the nieces.
4
probate court issued letters of guardianship and conservatorship to Law without
requiring a bond.2 Under the letters of guardianship and conservatorship, Law was
instructed to act in his mother’s best interest and to separate her funds from his own;
he was also prohibited from selling her property or spending her money without a
court order.
The State presented significant detailed evidence showing that during the years
that Law held his mother’s power of attorney, as well as during the short time that he
was his mother’s guardian and the conservator of her assets, he transferred tens of
thousands of dollars from his mother’s accounts to his own and spent a large
percentage of the money on his own personal expenses. Law’s mother died on
January 13, 2012.
As a result, Law was eventually indicted and charged in three groups of counts.
In Counts 1 and 2, he was charged with exploitation of an elder person and
exploitation of a disabled adult, respectively, both violations of former OCGA § 30-5-
8 (effective: June 3, 2010 to June 30, 2012). In Counts 3 and 4, he was charged with
perjury (OCGA § 16-10-70) and filing a false document (OCGA § 16-10-20), in that
2
“A conservator appointed by the court shall give bond with good and
sufficient security.” OCGA § 29-5-40 (c).
5
in August 2011, he made a false statement and used a false document in connection
with filing the Petition. And in Counts 5 through 100, Law was charged with 96
counts of theft by taking, with each count representing a different date on which Law
allegedly took funds from his mother while acting as her fiduciary.
Law was acquitted of exploitation of an elder but convicted of exploitation of
a disabled adult (Count 2). He was convicted of both perjury and filing a false
document in connection with the Petition (Counts 3 and 4). And he was convicted on
nine counts of theft by taking for transactions that occurred between August 31, 2011
and his mother’s death, in other words, all transactions after he filed the Petition to
be appointed as guardian and conservator of his then mentally disabled mother. Law
was acquitted of all other charges of theft by taking.
1. In his first two enumerations of error, Law contends the trial court erred by
denying his motion to quash/special demurrer to Counts 2 and Counts 92-100. “We
review rulings on special demurrers de novo.” State v. Leatherwood, 326 Ga. App.
730, 731 (757 SE2d 434) (2014). When we review rulings on special demurrers after
trial, “we consider whether the defendant suffered actual prejudice from alleged
deficiencies in the indictment.” Herring v. State, 334 Ga. App. 50, 52 (778 SE2d 57)
(2015); see also Mitchell v. State, 282 Ga. 416, 419 (4) (651 SE2d 49) (2007). Here,
6
Law has not attempted to show any such harm or prejudice and we see none; these
enumerations are therefore without merit. See, e.g., Mitchell, 282 Ga. at 419 (4)
(“Neither appellant has shown how he was misled to his prejudice by any alleged
imperfection in the indictment and we can discern no prejudice in either record. Any
error in failing to try appellants upon a “perfect” indictment was, thus, manifestly
harmless.”).
2. Law contends the trial court erred by failing to dismiss prospective jurors for
cause who indicated that they were biased. “Whether to strike a juror for cause is a
matter committed to the sound discretion of the trial court, and we will not find error
in an exercise of that discretion absent a showing that the discretion was manifestly
abused.” Carter v. State, 302 Ga. 685, 686 (2) (808 SE2d 704) (2017).
During the voir dire, Law’s counsel informed the court that “based on the
[large] number of counts [in] the Indictment, a great number [in fact, seven] of the
[prospective] jurors indicated that they would actually presume [Law] guilty in this
case.” Law therefore asked the court to strike those jurors for cause. In response, the
court instructed the prospective jurors that “the defendant is presumed to be innocent
until proven guilty by the State beyond a reasonable doubt” and that the indictment
was not evidence and should not be considered evidence. The court then asked
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whether any of the prospective jurors could not follow these instructions, to which
no one responded. The court therefore declined to excuse any of the seven jurors. We
find no error.
“In order to disqualify a juror for cause, it must be established that the juror’s
opinion was so fixed and definite that it would not be changed by the evidence or the
charge of the court upon the evidence.” (Citations and punctuation omitted.) Carter
v. State, 252 Ga. 502, 506 (8) (315 SE2d 646) (1984). Thus, here, where the jurors
indicated that they could follow instructions about the presumption of innocence,
burden of proof, and the fact that the indictment was not evidence, the trial court did
not abuse its discretion by declining to excuse the jurors for cause. See
Sadat-Moussavi v. State, 313 Ga. App. 433, 435 (721 SE2d 647) (2011) (trial court
did not err in refusing to strike juror who initially stated that she believed the
defendant was guilty in light of the indictment, after she altered her position and
expressed ability to remain fair and impartial after being given information about the
nature of the indictment and the burden of proof).
3. Law contends the trial court erred by refusing to admit evidence of the
reasons why the State prosecuted the case against him.
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While questioning the State’s investigating officer, defense counsel attempted
to introduce evidence of a memorandum drafted by attorneys retained by the victim’s
estate, which, according to counsel, represented “the beginning of the investigation
into William Law.” The State objected on the grounds that the document was hearsay,
could not be authenticated, and violated a court ruling about not introducing evidence
from a related civil case. The court sustained the State’s objection. On appeal, Law
fails to offer any legal argument to overcome the hearsay objection or the other two
grounds asserted below for excluding the evidence. Accordingly, we deem the
argument abandoned. See Court of Appeals Rule 25 (c) (2) (“Any enumeration of
error that is not supported in the brief by citation of authority or argument may be
deemed abandoned.”); see also Duncan v. State, 346 Ga. App. 777, 784 (3) (815
SE2d 294) (2018).
4. Law contends the evidence was insufficient to support the conviction of
exploitation of a disabled adult (Count 2), see former OCGA § 30-5-8, or the nine
counts of theft by taking (Counts 92-100), see OCGA § 16-8-2; he focuses solely on
the question of his criminal intent. “On appeal from a criminal conviction, the
defendant is no longer entitled to a presumption of innocence and we therefore
construe the evidence in the light most favorable to the jury’s guilty verdict.”
9
(Citation and punctuation omitted.) Maddox v. State, 346 Ga. App. 674, 675 (816
SE2d 796) (2018).
Law’s sole argument is that Georgia law was somewhat vague at the time about
whether a person holding a durable power of attorney had the authority to use that
power to give himself gifts from the principal’s property and that, therefore, he had
a basis to conclude that he could rightly do so. Specifically, he argues,
Thus, it must be concluded that the confusing and highly individualistic
decisional regime for evaluating the propriety of the way in which
powers were utilized during the time period of the Appellant’s alleged
criminal conduct afforded him and others similarly situated very little
guidance as to whether they could lawfully partake of their principals’
property during their service as holders of such instruments. The
seemingly broad powers set forth in the document executed by Mrs. Law
for that reason gave Mr. Law at least a minimally plausible basis for
believing that he could make gifts from his mother’s estate to himself so
long as she continued to have enough money to meet her recurring
financial obligations.
He contends, therefore, that any possible criminal intent is negated by his reasonable
belief that he was authorized to make himself gifts of his mother’s property.
But Law was convicted of crimes that occurred after he filed the Petition to
become his mother’s guardian and the conservator of her estate. And the law was very
10
clear at the time that a guardian’s fiduciary duty to his ward prohibited him from even
putting himself in a position where his personal interests might conflict with his
mother’s:
The law will not permit a guardian to act in such a way that his own
personal interest may come in conflict with the interest of his ward with
respect to the estate of the latter in his charge. A guardian owes a duty
of undivided loyalty to his ward and must not place himself in a position
where his own personal interests conflict or may conflict with the
interests of his ward. The purpose of this loyalty rule is to ensure that a
ward receives the unbiased and uninfluenced judgment of his guardian
and to eliminate even a hint of suspicion as to the guardian’s actions.
(Citations and punctuation omitted.) SunTrust Bank, Middle Georgia N.A. v. Harper,
250 Ga. App. 300, 307 (551 SE2d 419) (2001); see also OCGA § 29-5-22 (a) (“A
conservator shall at all times act as a fiduciary in the ward’s best interest and exercise
reasonable care, diligence, and prudence.”). Thus, even asserting a joint interest in an
account belonging to his ward put Law in a conflict-of-interest position thereby
breaching the duty of undivided loyalty he owed to his ward. See Harper, 150 Ga.
App. at 307 (where guardian asserted a joint interest in a CD along with his ward, he
breached the duty of undivided loyalty); OCGA § 29-5-2 (“No person may be
appointed or continue to serve as conservator of the estate of an adult who . . . has a
11
conflict of interest with the adult unless the court determines that the conflict of
interest is insubstantial or that the appointment clearly would be in the adult’s best
interest.”). In addition, Law was issued letters of guardianship and conservatorship
by the Probate Court which directed that he act in his mother’s best interest; that he
keep his mother’s funds separate from his own; and that he was specifically
prohibited from selling, giving away, or otherwise disposing of any of his mother’s
property without a court order.
Also, “[a] joint account belongs, during the lifetime of all parties, to the parties
in proportion to the net contributions by each to the sums on deposit, unless there is
clear and convincing evidence of a different intent.” OCGA § 7-1-812. This Code
section “creates a presumption that a party funding a joint account does not intend to
make a gift of the funds of the account during her life, but that the presumption is
subject to rebuttal by clear and convincing evidence of a contrary intent.” (Citation
and punctuation omitted.) Howard v. Leonard, 330 Ga. App. 331, 338 (2) (b) (765
SE2d 466) (2014). Whether there is a contrary intent is a question of fact. Id.Finally, it is well-established that “[c]riminal intent is a question for the jury
and may be inferred from conduct before, during and after the commission of the
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crime.” (Citation and punctuation omitted.) Glenn v. State, 279 Ga. 277, 277-278 (1)
(612 SE2d 478) (2005).
Here, the State presented evidence suggesting that Law isolated his mother
from other family members, took control of her life and finances, and personally
gained from doing so to the detriment of the beneficiaries of the 2009 will. Evidence
was presented to show that Law concealed required information on the Petition, such
as that he failed to list lineal descendants, that he under-reported her assets, and that
he failed to reveal his conflicts of interest to the probate court. The State also
presented extensive evidence of a pattern of transactions whereby Law, while he was
a guardian and conservator, wrote checks or executed transfers from his mother’s
individual account to one of several joint accounts he held with his mother, and then
transferred the same amount to an account bearing his name only. Law then used the
money in his own account to pay his personal expenses.
In conclusion, the jury was presented sufficient evidence from which it could
conclude that Law acted with guilty knowledge and criminal intent when taking funds
from his mother’s account, especially after he became her guardian and the
conservator of her assets. See, e.g., Amaechi v. State, 306 Ga. App. 333, 336 (1) (702
13
SE2d 680) (2010) (jury may resolve questions of intent from circumstantial
evidence). Accordingly, this enumeration of error is without merit.
5. Law contends that the trial court erred by failing to give the jury an
instruction on the definitions of gift and undue influence. Law, however, did not
propose any such charges, nor did he object to the failure of the court to give them.
Because Law failed to object, we are precluded from reviewing this claim of error
other than reviewing his contentions for plain error affecting the substantial rights of
the parties. See OCGA § 17-8-58 (b).
Plain error review involves four steps:
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.
14
(Citation, punctuation, and emphasis omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a)
(718 SE2d 232) (2011). “Satisfying all four prongs of this standard is difficult, as it
should be.” (Citation and punctuation omitted.) Id.Here, pretermitting a determination of the other steps, Law has failed to show
that any failure by the trial court to define the above terms affected his substantial
rights. “To prevail on this step, appellant has the burden to make an affirmative
showing that the error probably did affect the outcome below.” (Citation and
punctuation omitted.) Hampton v. State, 302 Ga. 166, 168 (2) (805 SE2d 902) (2017).
Here, the trial court’s charge as a whole instructed the jury on the presumption
of innocence, criminal intent, the requirement that the State prove every element of
the crimes beyond a reasonable doubt, mere suspicion, and the definition of the
relevant crimes. The court also instructed on the definition of exploitation, which
includes the concept of undue influence, in connection with Counts 1 and 2:
For the purposes of Counts One and Two, the term “exploitation” means
the illegal or improper use of a disabled adult or elder person or that
person’s resources through undue influence, coercion, harassment,
duress, deception, false representation, false pretense, or other similar
means for one’s own profit or advantage.
15
The court also instructed on the definition of theft by taking and fiduciary relationship
for Counts 5 through 100. In connection thereto, the court charged on the defense to
theft of “honest claim of right,” as follows:
It is a defense to a charge of theft by taking that the Accused person, (A)
was unaware that the property was that of another, or (B) acted under an
honest claim of right to the property involved or under a right to
acquire or dispose of it. Should you find from the evidence in this case
that the Accused acted under such claim of right as I have just instructed
you, then it would be your duty to acquit the defendant. The burden of
proof rests upon the State to prove beyond a reasonable doubt that the
Accused did not act under an honest claim of right to the property and
that the Accused was aware that the property was that of another. If the
State fails to prove such beyond a reasonable doubt, then you should
acquit the defendant.
(Emphasis supplied.)
When considered with the rest of the court’s charge, this charge adequately
allowed the jury to acquit Law for exploitation or for taking property of his mother
based on a claim of gift, which is essentially the defense of “honest claim of right.”
Indeed, the jury in fact acquitted him of numerous counts of theft by taking. Thus he
has not shown that the jury was not capable of determining guilt or innocence without
further definition of a gift. With regard to “undue influence” the term was a part of
16
the definition of exploitation, and that definition contained enough context and detail
to give the jury sufficient information to understand exploitation in connection with
Counts 1 and 2. Moreover, the State obviously asserted that Law exploited his mother
in other manners stated in the instruction, such as coercion or “other similar means
for one’s own profit or advantage.” In sum, Law has not carried his burden of making
an affirmative showing that lack of a definition of the terms in question probably
affected the outcome below.
6. Law contends the trial court erred by failing to charge on mistake of fact as
a defense to the counts of perjury and use of a false document in connection with
filing the Petition.
The law of misapprehension/mistake of fact provides that a person cannot be
found guilty of a crime “if the act or omission to act constituting the crime was
induced by a misapprehension of fact which, if true, would have justified the act or
omission.” OCGA § 16-3-5. “Mistake of fact is a defense to a crime to the extent that
the ignorance of some fact negates the existence of the mental state required to
establish a material element of the crime.” Jones v. State, 263 Ga. 835, 839 (2) (439
SE2d 645) (1994). “Generally, however, ignorance or mistake of fact constitutes a
defense to a criminal charge only if it is not superinduced by the fault or negligence
17
of the party doing the wrongful act.” (Citation and punctuation omitted.) Hines v.
State, 276 Ga. 491, 495 (5) (578 SE2d 868) (2003). And “[e]ven where an accused’s
sole defense is mistake of fact, such charge is not required where it is not authorized
by the evidence.” Taylor v. State, 293 Ga. App. 551, 555 (3) (667 SE2d 405) (2008).
In Count 3, the State asserted that Law committed perjury, OCGA § 16-10-70,
when he knowingly and willfully made a false statement in the Petition “when he
failed to disclose all of [his mother’s] personal assets and lineal descendants, and that
he held Power of Attorney over [her] and joint ownership of her property.” In Count
4, the State asserted that Law committed the offense of using a false document,
OCGA § 16-10-20, for essentially the same reasons. In his defense, Law testified that
he completely and correctly filled out the Petition, including page 12, and he implies
that perhaps his attorney and his attorney’s staff caused the omissions. He
characterizes this problem as “mistaken conduct beyond his control” and he argues
that he therefore was entitled to a charge on “misapprehension of fact.”
Here, it is undisputed that Law reviewed and verified the accuracy of the
information to be filed. Thus, if the document contained errors when he signed it, he
superinduced those errors. See, e.g., Taylor, 293 Ga. App. at 555 (3) (any mistake by
defendant regarding the authenticity of checks submitted to bank for payment were
18
superinduced by defendant’s own negligence in failing to question the payor or
examine the security features of the checks). Further, any mistake about what persons
were his mother’s lineal descendants is a mistake of law, and therefore does not
require a charge on mistake of fact. See Paul v. State, 331 Ga. App. 560, 564 (4) (769
SE2d 396) (2015) (“[F]ailure to give a charge on mistake of fact is not error where
the evidence shows that a party has made a mistake of law.”).
Finally, even if a charge on mistake of fact should have been given, we find no
reversible error because the court fully and adequately charged the jury regarding
perjury and filing a false document and that each required knowing and willful action:
[A] conviction generally should not be reversed in any case . . . where
the charge of the court fully and adequately covers the requisite
elements of the crime charged, the requirement of criminal intent to
commit the crime charged, and other material defenses thereto, and
where a reasonable trier of fact could find from the evidence proof of
guilt beyond a reasonable doubt. This is so because where the jury has
heard the defense and has been properly charged as to the state’s burden
of proof, the elements of the crime and the requirement of criminal
intent, and as to material defenses, a finding of guilt necessarily finds
the requisite criminal intent and therefore negates any possibility that the
jury, had it been charged mistake of fact, would have acquitted.
19
(Citations and punctuation omitted.) Hall v. State, 258 Ga. App. 156, 158 (2) (573
SE2d 415) (2002); see also Stillwell v. State, 329 Ga. App. 108, 110 (1) (764 SE2d
419) (2014) (same).
The court instructed the jury, for both perjury and false filing, that the State had
the burden of showing that Law “knowingly or wilfully” committed the crime. Thus,
the jury was instructed on Law’s defense that he did not know there were errors in the
Petition or that he did not wilfully file the Petition with errors included.
For the above reasons, we find no reversible error.
Judgment affirmed. Miller, P. J., and Markle, J., concur.
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