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Akintoye v. State

Court of Appeals of Georgia, Third Division

March 16, 2017

AKINTOYE
v.
THE STATE.

          MILLER, P. J., MCFADDEN, P. J., and MCMILLIAN, J.

          Miller, Presiding Judge.

         Following a jury trial, Joseph Akintoye was convicted of two counts of theft by taking (OCGA § 16-8-2), two counts of theft by deception (OCGA § 16-8-3), two counts of exploitation of an elder person (OCGA § 30-5-8 (2012)), one count of violating Georgia's Racketeer Influenced and Corrupt Organizations Act (RICO) (OCGA § 16-14-4 (2012)), and three counts of money laundering (OCGA § 7-1-915).[1] Akintoye appeals from the denial of his motion for new trial, arguing that the evidence was insufficient to support his convictions. Akintoye also contends that the trial court erred in allowing improper hearsay testimony, allowing a text message exhibit to go with the jury during deliberations, and allowing a witness to testify as an expert with regard to evidence of other bad acts. Finally, Akintoye argues that his trial counsel was constitutionally deficient. For the reasons that follow, we affirm.

         Viewed in the light most favorable to his convictions, [2] the evidence shows that Akintoye resided in Jacksonville, Florida, where he ran an international car sales business and he conspired with Lizabeth Crawford ("Crawford") to scam money from the elderly.[3] Crawford would receive wired money into her bank account, from Akintoye's victims and other sources, then withdraw and deposit a similar or slightly lesser amount into Akintoye's bank account according to his instructions.[4] Over a period of eighteen months, Crawford received approximately $200, 000, which she then withdrew as cash or wired out of her account.

         On several occasions, money was withdrawn from Crawford's account and deposited to Akintoye's account very soon thereafter. Each time Crawford transferred funds into Akintoye's account, she retained approximately $650 to $1, 500 of the original funds.

         In this case, Akintoye was charged with crimes involving three victims, D. R., J. R. and J. M. With regard to these victims, the evidence pertinently showed:

         D. R.

         In 2012, D. R., a 74-year-old widow who lives in New York, began corresponding with someone through Match.com. This individual misled D. R. into believing that he was an American father and businessman, who was having financial difficulty in Malaysia and was trying to return to his children in New York City. On February 14 and 19, 2013, D. R. was directed to wire $35, 000 into Crawford's bank account under the auspice that this man needed this money for his hotel and if he did not pay the money he would be arrested. D. R. sent two wire transfers to Crawford's account - one for $25, 000 and one for $10, 000.

         Crawford withdrew the first payment of $25, 000 and deposited it into another account, and most of that money was then wired to Nigerian and Malaysian banks. With regard to the $10, 000 payment, all but $100 was withdrawn and deposited into another of Crawford's accounts, from which it was wired to the same foreign bank accounts.

          J. M.

         J. M. died about one month prior to trial; therefore, his grandson testified about the scam. The grandson testified that, on April 18, 2013, 91-year-old J. M. received a phone call at his home from a caller who identified himself as J. M.'s grandson. The caller told J. M. that he was in prison and needed J. M. to wire him money to secure his release. At trial, the grandson testified that J. M. immediately went to Wells Fargo, as instructed by the caller, and wired $6, 250 to Crawford's bank account. Later that evening, J. M. spoke to the grandson and was "very surprised" when he learned that the grandson had neither been in prison, nor spoken to him earlier that day. When the embarrassed, confused, and "distraught" J. M. learned that the earlier caller was not his grandson, they promptly notified Wells Fargo seeking to stop the transfer.

         That same day, Crawford went to a Cobb County Wells Fargo branch and withdrew $6, 175 of the funds J. M. had wired, and Crawford then deposited $5, 555 into Akintoye's account. Akintoye then texted Crawford asking, "Have you sent the money yet?" The withdrawal and deposit slips were later found in Crawford's possession, and the $5, 555 deposit appeared in Akintoye's bank account records.

         J. R.

         On April 22, 2013, 82-year-old J. R. received a phone call at her New Jersey home from a caller who identified himself as her grandson. The caller told J. R. that he had a cold and would not sound like himself, and said he was in jail and needed bail money. The caller informed J. R. that a deputy needed to speak with her. J. R. then spoke to a man who said he was the deputy, and who told her that her grandson needed $6, 500 to secure his release. Based on the caller's instructions, J. R. went to Wells Fargo and deposited $6, 500 into Crawford's account.

         That same day, Crawford received a text message from Akintoye instructing her to check her Wells Fargo account for a "6 K five deposit." Meanwhile, J. R. spoke with her actual grandson and learned that the prior phone call had been a scam, so she promptly notified Wells Fargo and the police. Wells Fargo's video surveillance system recorded Crawford trying to withdraw J. R.'s funds from a Cobb County branch.

         Following his trial, Akintoye was convicted of two counts of theft by taking, based on D. R.'s $25, 000 and $10, 000 transfers; two counts of theft by deception based on the $6, 250 wire transfer from J. M. and the $6, 500 wire transfer from J. R.; two counts of exploitation of an elder person based the funds taken from 91-year-old J. M. and 82-year-old J. R.; one count of RICO; and three counts of money laundering.[5] This appeal ensued.

         1. Akintoye contends that the evidence was insufficient to support his convictions. We disagree.

         As an initial matter, we note that each count in Akintoye's indictment included language stating that he committed the crimes as a co-conspirator and party to the crime.

A person who does not directly commit a crime may nevertheless be convicted as a party to that crime upon proof that he or she intentionally aided or abetted the commission of the crime, or intentionally advised, encouraged, hired, counseled, or procured another to commit the crime. All of the participants in a plan to [commit a crime] are criminally responsible for the acts of each, committed in the execution of the plan, and which may be said to be a probable consequence of the unlawful design, even though the particular act may not have actually been a part of the plan.

(Citations omitted.) Cisneros v. State, 299 Ga. 841, 846-847 (2) (792 S.E.2d 326) (2016). With regard to co-conspirators,

[t]he question of the existence of a conspiracy is ultimately for the jury to determine. The existence of a common design or purpose between two or more persons to commit an unlawful act may be shown by direct or circumstantial evidence. It may be shown by conduct as well as by direct proof or express agreement, by inference as well as deduction from conduct which shows common design on the part of persons charged to act together for the accomplishment of the unlawful purpose.

(Citations and punctuation omitted.) Brown v. State, 177 Ga.App. 284, 295 (9) (339 S.E.2d 332) (1985). "It is well settled that when individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one or more of the conspirators is in legal contemplation the act of all." (Citation and punctuation omitted.) Id. Moreover,

[t]he type of agreement necessary to form a conspiracy is not the meeting of the minds necessary to form a contract and may be a mere tacit understanding between two or more people that they will pursue a particular criminal objective.

(Citation and punctuation omitted.) Kilgore v. State, 251 Ga. 291, 299 (3) (c) (305 S.E.2d 82) (1983).

         a. Theft by Taking

          "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." OCGA § 16-8-2. The evidence as set forth was sufficient to support Akintoye's convictions as a co-conspirator and party to the crimes of theft by taking for unlawfully taking $25, 000 from D. R. on or about February 14, 2013, and taking $10, 000 from D. R. on or about February 19, 2013. See Williams v. State, 297 Ga.App. 150, 151 (1) (676 S.E.2d 805) (2009) (affirming defendant's theft by taking convictions based on evidence that defendant participated in scheme to transfer victim's cash into a third-party account and then withdrew the cash); Cisneros, supra, 299 Ga. at 847 (jury was authorized to convict defendant as a co-conspirator to sexual battery).[6]

         b. Theft by Deception

         "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." OCGA § 16-8-3 (a). Here, the evidence as set forth above was sufficient to sustain Akintoye's convictions as a party to the crimes of theft by deception for taking $6, 250 from J. M. and $6, 500 from J. R. by deceitful means with the intention of depriving the victims of their property. See e.g. Harris v. State, 324 Ga.App. 411, 414 (1) (c) (750 S.E.2d 721) (2013) (evidence ...


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