Heather Kimbrough v. State

THIRD DIVISION
DILLARD,
MCFADDEN and RICKMAN, 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 24, 2016
In the Court of Appeals of Georgia
A15A1738. KIMBROUGH et al. v. THE STATE.
MCFADDEN, Judge.
The state charged appellants Heather Kimbrough and Melissa Ann Mayfield
(“the defendants”), along with two other people, with violation of the Georgia
Racketeer Influenced Corrupt Organizations (RICO) Act, OCGA §§ 16-14-1 et seq.
and certain drug offenses. The defendants filed general and special demurrers to the
Georgia RICO Act count of the indictment. The trial court denied the demurrers, and
we granted the defendants’ application for interlocutory review. On appeal, the
defendants argue that the indictment fails to specify how they violated the Georgia
RICO Act. We hold that the Georgia RICO Act count, which largely tracks the
language of the statute, is sufficient to withstand the demurrers and thus affirm the
trial court.
1. State’s request to dismiss the appeal.
Initially, we reject the state’s argument that we should dismiss the appeal
because Kimbrough did not timely file her demurrers. A defendant may file a general
demurrer at any time before the trial court. Jackson v. State, 316 Ga. App. 588, 592
(2) (730 SE2d 69) (2012). It is true that a defendant must file a special demurrer
“within ten days after the date of arraignment, unless the time for filing is extended
by the court.” OCGA § 17-7-110. See Palmer v. State, 282 Ga. 466, 468 (651 SE2d
86) (2007). But the state points to nothing in the appellate record showing the date
of arraignment so as to support its argument that Kimbrough’s special demurrer was
untimely. See McHugh Fuller Law Group v. PruittHealth-Toccoa, 297 Ga. 94, 98 (2)
(772 SE2d 660) (2015) (appellee may designate for inclusion in the appellate record
any materials that the appellant has omitted). In any event, it is not a ground for
dismissing an appeal that a special demurrer, or for that matter any motion, was not
timely filed in the trial court. See OCGA § 5-6-48 (b).
2. Demurrers.
“A demurrer to an indictment may be general or special. A general demurrer
challenges the very validity of the indictment [while] the special objects merely to its
form or seeks more information. . . .” Stinson v. State, 279 Ga. 177, 180 n. 3 (2) (611
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SE2d 52) (2005) (citation omitted). “We review a trial court’s ruling on a general or
special demurrer de novo in order to determine whether the allegations in the
indictment are legally sufficient.” Sallee v. State, 329 Ga. App. 612, 616 (2) (765
SE2d 758) (2014) (citations omitted).
The defendants challenge count one of the indictment which charged them and
two other people with:
the offense of RACKETEER INFLUENCED AND CORRUPT
ORGANIZATIONS – CONDUCTING OR PARTICIPATING IN AN
ENTERPRISE THROUGH PATTERN OF RACKETEERING
ACTIVITY (OCGA § 16-14-4 [b]) in that the said accused, in the State
of Georgia and County of Gwinnett, between the 20th day of January,
2012 and the 12th day of July, 2012, being associated with an enterprise
to wit: Executive Wellness and Rehabilitation, did participate in,
directly and indirectly, such enterprise through a pattern of racketeering
activity, as more particularly described in this count and this indictment,
which counts are incorporated herein by reference as if fully set forth.
At all times material to this Count of this indictment, the enterprise was
a corporation or a group of people associated in fact although not a legal
entity. The pattern of racketeering activity consisted of the following:
between the 20th day of January, 2012 and the 12th day of July, 2012,
in Gwinnett County, Georgia, the accused did commit the offense of
Violation of the Georgia Controlled Substances Act: Unauthorized
Distribution (OCGA § 16-13-43), in that said accused unlawfully
obtained possession of Oxycodone, a Schedule II Controlled Substance,
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by withholding information from various practitioners, to wit: [five
named individuals], that the accused had obtained a controlled substance
of a similar therapeutic use in a concurrent time period from another
practitioner, contrary to the laws of said State, the peace, good order and
dignity thereof.
The next 21 counts of the indictment charged Kimbrough and Mayfield with specific
acts in violation of OCGA § 16-13-43, which prohibits the unauthorized distribution
of controlled substances. Under former OCGA § 16-14-3 (9) (A) (i),1 violations of
OCGA § 16-13-43 could be racketeering activity.
(a) General demurrer.
In a general demurrer, a defendant
challenges the validity of an indictment by asserting that the substance
of the indictment is legally insufficient to charge any crime, and it
should be granted only when an indictment is absolutely void in that it
fails to charge the accused with any act made a crime by the law. Put
another way, the true test of the sufficiency of an indictment to
withstand a general demurrer is found in the answer to the question: Can
the defendant admit the charge as made and still be innocent? If he can,
the indictment is fatally defective.
1
In 2015, the General Assembly revised OCGA § 16-14-3, and a substantially
similar provision is now found at OCGA § 16-14-3 (5) (A) (xxxiv).
4
Poole v. State, 326 Ga. App. 243, 247-248 (2) (a) (756 SE2d 322) (2014) (citation
and punctuation omitted). And “[e]very indictment of the grand jury which states the
offense in the terms and language of [our] Code or so plainly that the nature of the
offense charged may easily be understood by the jury shall be deemed sufficiently
technical and correct.” OCGA § 17-7-54 (a). “Thus, an indictment couched in the
language of the statute alleged to have been violated is not subject to a general
demurrer.” State v. Wyatt, 295 Ga. 257, 260 (2) (759 SE2d 500) (2014) (citation and
punctuation omitted). Here, count one of the indictment substantially tracks the
language of OCGA § 16-14-4 (b), which provides that, “It shall be 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.”
Count one was thus sufficient to withstand the defendants’ general demurrers. Wyatt,
295 Ga. at 260 (2).
(b) Special demurrer.
The defendants argue that the trial court erred by denying their special
demurrers because count one fails to inform them of: the manner in which they
allegedly participated in the enterprise; the enterprise’s relationship to the alleged
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racketeering activity; and which substantive counts in the indictment constitute the
predicate acts. We disagree.
“By filing a special demurrer, an accused claims, not that the charge in an
indictment is fatally defective and incapable of supporting a conviction (as would be
asserted by general demurrer), but rather that the charge is imperfect as to form or that
the accused is entitled to more information.” State v. Delaby, 298 Ga. App. 723, 724
(681 SE2d 645) (2009) (citations and punctuation omitted). See also Christian v.
State, 288 Ga. App. 546, 548 (2) (654 SE2d 452) (2007) (defendant seeking “greater
specificity with regard to the . . . circumstances of the alleged crime” must file special
demurrer). We must determine
not whether the indictment could have been clearer, but whether it states
the elements of the offense and sufficiently apprises the defendant of
what [s]he must be prepared to meet, and, in case any other proceedings
are taken against [her] for a similar offense, whether the record shows
with accuracy to what extent [s]he may plead a former acquittal or
conviction.
Delaby, 298 Ga. App. at 724-725 (citation and punctuation omitted).
(i) Participation in the enterprise and the enterprise’s relationship to the
alleged racketeering activity.
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We reject the defendants’ arguments that the indictment does not sufficiently
allege the manner in which they participated in the enterprise and the enterprise’s
relationship to the alleged racketeering activity. We note at the outset that our
Supreme Court has rejected a vagueness and overbreadth challenge to OCGA § 16-
14-4 (b)’s “participate in [an] enterprise” language. (As detailed in Division 2 (a),
OCGA § 16-14-4 (b) provides that, “It shall be 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.”). In Chancey v. State, 256
Ga. 415 (349 SE2d 717) (1986), the court rejected the contention that OCGA § 16-
14-4 (b) “is vague and overbroad in that it makes it unlawful to ‘associate’ or
‘participate’ even ‘indirectly’ in an enterprise.” Id. at 427-428 (III) (4) (D). The court
ruled that the challenge lacked merit because the statute requires “such participation
in the enterprise [to] be ‘through a pattern of racketeering activity.’” Id. at 428 (III)
(4) (D). Further, the court held “that ‘any person’ of average intelligence, on a clear
reading of that statute, together with relevant definitional provisions, could not help
but realize that they would be criminally liable for participating in ‘any enterprise,’
including their own, ‘through a pattern of racketeering activity.’” Id. (citations and
punctuation omitted).
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Largely tracking the statutory language, and in accordance with the principles
of Chancey, count one of the indictment alleges that the defendants participated in
Executive Wellness through a pattern of racketeering activity. It generally describes
the racketeering activity as unlawfully obtaining possession of oxycodone by
withholding information from the practitioners who prescribed the drug and then
describes that activity more specifically by incorporating the remaining counts of the
indictment, which set out the predicate acts with more specificity.
This is sufficient to allege the manner in which the defendants participated in
the enterprise: they participated by allegedly committing the predicate acts. Moreover,
count one provides a nexus between the predicate acts and the enterprise by use of the
preposition “through.” See Rodriguez v. State, 284 Ga. 803, 807 (1) (671 SE2d 497)
(2009) (addressing similar Georgia Street Gang Terrorism and Prevention Act).
“Because the Georgia RICO Act was modeled after the federal statute, [our
supreme c]ourt has found federal authority persuasive in interpreting the Georgia
RICO statute. . . .” Williams Gen. Corp. v. Stone, 279 Ga. 428, 430 (614 SE2d 758)
(2005). Federal courts have rejected similar challenges to RICO indictments. See
United States v. McDonough, 959 F2d 1137, 1140-1141 (1st Cir. 1992); United States
v. Cauble, 706 F2d 1322, 1334 (B) (5th Cir. 1983).
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It is true, as the defendants argue, that where the statutory definition of an
offense includes generic terms, the state may be required to state the “species of acts
charged [and] descend to particulars.” Delaby, 298 Ga. App. at 725 (citation and
punctuation omitted). But here, the state did just that, specifying in the counts
alleging predicate acts the acts that amounted to the defendants’ participation in the
enterprise. We conclude that the indictment, when read as a whole, was sufficient to
withstand the special demurrer on the these grounds. See State v. Pittman, 302 Ga.
App. 531, 534-535 (690 SE2d 661) (2010) (finding indictment that in one count
tracked the generic language of OCGA § 16-14-4 (a) and then in other counts
included detailed predicate acts was sufficient to withstand special demurrer).
(ii) Predicate acts.
We reject the defendants’ argument that the indictment does not clearly specify
the predicate acts alleged against them. As noted above, count one provides that the
defendants engaged in
a pattern of racketeering activity, as more particularly described in this
count and this indictment, which counts are incorporated herein by
reference as if fully set forth. . . . The pattern of racketeering activity
consisted of the following: . . . the accused did commit the offense of
Violation of the Georgia Controlled Substances Act: Unauthorized
Distribution (OCGA § 16-13-43), in that said accused unlawfully
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obtained possession of Oxycodone, a Schedule II Controlled Substance,
by withholding information from various practitioners. . . .
More succinctly, count one specifies that the pattern of racketeering activity was
unlawfully obtaining oxycodone, and it incorporates as predicate acts the remaining
counts of the indictment charging the defendants with unlawfully obtaining
oxycodone.
Two of the counts against only Mayfield, counts 12 and 13, allege that she
unlawfully obtained hydrocodone, not oxycodone. Hydrocodone and oxycodone,
although both opioids, are depicted as two different controlled substances in our
Code. See OCGA § 16-13-26 (1) (A) (ix) & (xiv). To the extent that Mayfield argues
that the word “counts” means that the hydrocodone counts against her are also
charged as predicate acts, we disagree. The indictment is specific: it alleges that the
defendants’ unlawfully obtaining possession of oxycodone amounted to a pattern of
racketeering activity. And to the extent the word “counts” can be read to include
counts 12 and 13 – in spite of the sentence specifying that it is oxycodone at issue in
the RICO count – this is mere surplusage. “An allegation in an indictment that is
wholly unnecessary to constitute the offenses charged is mere surplusage.” Fair v.
State, 284 Ga. 165, 167 (2) (a) (664 SE2d 227) (2008) (citation and punctuation
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omitted). “Mere surplusage will not vitiate an indictment. . . . “ State v. Corhen, 306
Ga. App. 495, 499 (2) (700 SE2d 912) (2010) (citation omitted). Reading the word
“counts” to include counts 12 and 13
is not essential to charge an offense under Count 1 . . . so [such a
reading] may be omitted without affecting the validity of the individual
charges. . . . [T]o the extent that the language is confusing to [Mayfield]
because it fails to notify [her] as to what [predicate acts she] must
defend against, disregarding or omitting [such a reading of] the language
as surplusage resolves that confusion.
Id. at 499 (2).
Judgment affirmed. Dillard and Rickman, J.J., concur.
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