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Kimbrough v. State

Supreme Court of Georgia

April 17, 2017

KIMBROUGH et al.
v.
THE STATE

          Blackwell, Justice.

         Heather Leigh Kimbrough and Melissa Ann Mayfield were charged by indictment with a violation of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act.[1] The indictment alleges that Kimbrough and Mayfield, being associated with an enterprise, violated the Act by participating in the affairs of the enterprise through a pattern of racketeering activity, see OCGA § 16-14-4 (b), [2] and it identifies the alleged enterprise[3] and pattern of racketeering activity.[4] But other than the allegation that Kimbrough and Mayfield participated in the enterprise "through" a pattern of racketeering activity, the indictment says nothing at all about the alleged connection between the enterprise and the racketeering. Seeking more detail about that alleged connection, Kimbrough and Mayfield filed special demurrers. The trial court, however, denied the special demurrers, and Kimbrough and Mayfield appealed.[5]In Kimbrough v. State, 336 Ga.App. 381, 384-386 (2) (b) (i) (785 S.E.2d 54) (2016), the Court of Appeals held that the indictment contains enough detail about the connection between the enterprise and the racketeering activity to survive a special demurrer, and it affirmed the denial of Kimbrough and Mayfield's special demurrers. We issued a writ of certiorari to review that decision, and for the reasons that follow, we reverse.[6]

         1. In July 2013, a Gwinnett County grand jury returned a 50-count indictment against Kimbrough, Mayfield, Jason Dennis Doerr, and Samantha Shay Downard.[7] Count 1 charges all of the defendants with a violation of the RICO Act, alleging that they, "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." Count 1 further alleges that the pattern of racketeering activity consists of multiple violations of the Georgia Controlled Substances Act.[8] More specifically, Count 1 alleges that the racketeering activity involved the defendants unlawfully obtaining Oxycodone (a Schedule II controlled substance) by "withholding information from various [medical] practitioners . . . that [the defendants] had obtained a controlled substance of a similar therapeutic use in a concurrent time period from another practitioner." See OCGA § 16-13-43 (a) (6).[9] Count 1 says that the pattern of racketeering activity is "more particularly described" in subsequent counts of the indictment, and indeed, nineteen other counts charge various defendants with unlawfully obtaining Oxycodone by withholding information from a medical practitioner.[10] The remaining 30 counts charge various other violations of the Controlled Substances Act.[11] Altogether, the indictment identifies Executive Wellness and Rehabilitation as the enterprise at the bottom of the RICO charge, alleges that the defendants were associated with the enterprise and participated in it "through" a pattern of racketeering activity, and specifies nineteen predicate acts of racketeering that form the alleged pattern of racketeering activity. The indictment says nothing more, however, about the nature of the alleged connection between the enterprise and the pattern of racketeering activity. By their special demurrers, Kimbrough and Mayfield insisted upon greater detail about that connection.

         2. An indictment may be challenged by general or special demurrer. A general demurrer "challenges the sufficiency of the substance of the indictment." Green v. State, 292 Ga. 451, 452 (738 S.E.2d 582) (2013) (citation omitted) (emphasis supplied). If the accused could admit each and every fact alleged in the indictment and still be innocent of any crime, the indictment is subject to a general demurrer. See Lowe v. State, 276 Ga. 538, 539 (2) (579 S.E.2d 728) (2003). If, however, the admission of the facts alleged would lead necessarily to the conclusion that the accused is guilty of a crime, the indictment is sufficient to withstand a general demurrer. See id. A special demurrer, on the other hand, "challenges the sufficiency of the form of the indictment." Green, 292 Ga. at 452 (emphasis supplied). By filing a special demurrer, the 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 S.E.2d 645) (2009) (punctuation and citation omitted).[12]

         "Where a defendant challenges the sufficiency of an indictment by the filing of a special demurrer before going to trial, [s]he is entitled to an indictment perfect in form." State v. Grube, 293 Ga. 257, 259 (2) (744 S.E.2d 1) (2013). Even so, an indictment does not have to contain "every detail of the crime" to withstand a special demurrer. State v. English, 276 Ga. 343, 346 (2) (a) (578 S.E.2d 413) (2003). According to OCGA § 17-7-54 (a), an indictment "shall be deemed sufficiently technical and correct" if it "states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury." Subsection 17-7-54 (a) also requires, however, that an indictment state the offense "with sufficient certainty." See also Cole v. State, 334 Ga.App. 752, 755 (2) (780 S.E.2d 406) (2015). Consistent with these statutory directives, we have held that an indictment not only must state the essential elements of the offense charged, see Henderson v. Hames, 287 Ga. 534, 538 (3) (697 S.E.2d 798) (2010), but it also must allege the underlying facts with enough detail to "sufficiently apprise[] the defendant of what he must be prepared to meet." State v. English, 276 Ga. 343, 346 (2) (a) (578 S.E.2d 413) (2003) (citation and punctuation omitted). See also Delaby, 298 Ga.App. at 726; Stone v. State, 76 Ga.App. 96, 98 (2) (45 S.E.2d 89) (1947). As we have explained, when a court considers whether an indictment is sufficient to withstand a special demurrer, "[i]t is useful to remember that [a] purpose of the indictment is to allow [a] defendant to prepare [her] defense intelligently." English, 276 Ga. at 346 (2) (a) (citation and punctuation omitted).

         3. Turning to the indictment in this case, Count 1 charges Kimbrough and Mayfield with a violation of OCGA § 16-14-4 (b), which provides that "[i]t 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." An essential element of this offense is a connection or nexus between the enterprise and the racketeering activity. See Dorsey v. State, 279 Ga. 534, 540 (2) (b) (615 S.E.2d 512) (2005) (holding that evidence was sufficient to sustain RICO conviction because there was "a clear connection between the enterprise . . . and the predicate acts"). See also United States v. Welch, 656 F.2d 1039, 1062 (5th Cir. 1981) ("by the use of the word 'through'" in the federal RICO statute, Congress intended "to require a sufficient nexus between the racketeering activities and the affairs of the enterprise").[13] Although Count 1 identifies the enterprise with which the defendants allegedly were associated (Executive Wellness and Rehabilitation) and specifies the alleged racketeering activity through which they participated in the enterprise (unlawfully obtaining Oxycodone by withholding information from medical practitioners), the indictment fails to set forth any facts that show a connection between the enterprise and the racketeering activity, and the nature of that connection is not apparent from the identification of the enterprise, the general description of the racketeering activity in Count 1, or the subsequent counts charging more particularly the predicate acts of racketeering.

         To be sure, the indictment alleges that Kimbrough and Mayfield were "associated with" the enterprise and "participated" in it "through" the pattern of racketeering activity. But not knowing whether the enterprise is alleged to be a licit or illicit one, [14] how the defendants allegedly were "associated with" it, [15] or how the alleged racketeering activity relates in any way to the business or affairs of the enterprise, [16] Kimbrough and Mayfield cannot possibly ascertain from the indictment what they must be prepared to meet with respect to proof of the requisite connection between the enterprise and the alleged pattern of racketeering activity. The indictment does not disclose whether the State intends to prove the connection with evidence that, for instance:

• The defendants were clients of Executive Wellness and Rehabilitation and obtained Oxycodone for their own use by unlawfully obtaining prescriptions from medical practitioners employed by the enterprise;
• The defendants were clients of Executive Wellness and Rehabilitation and obtained Oxycodone for shared use at the facilities of the enterprise;
• The defendants unlawfully obtained prescriptions for Oxycodone and filled those prescriptions at Executive Wellness and Rehabilitation;
• The defendants worked for Executive Wellness and Rehabilitation and unlawfully obtained Oxycodone to supply to clients of the enterprise;
• The defendants were vendors or suppliers of Executive Wellness and Rehabilitation and unlawfully obtained Oxycodone for resale to the enterprise;
• The defendants unlawfully obtained Oxycodone, sold it, and used the proceeds to finance other activities of Executive Wellness and Rehabilitation; or
• Executive Wellness and Rehabilitation is an illicit association in fact that exists for the purpose of unlawfully obtaining, ...

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