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Lowery v. State

Court of Appeals of Georgia, First Division

June 27, 2018

LOWERY
v.
THE STATE WEIDMAN
v.
THE STATE

          BARNES, P. J., MCMILLIAN and REESE, JJ.

          MCMILLIAN, JUDGE.

         Co-Defendants Matthew Daniel Lowery and Susan Lorraine Weidman appeal from the denial of their motions for new trial following their convictions under the Georgia Racketeer and Corrupt Organizations Act ("RICO"), OCGA §§ 16-14-1 et seq. (the "Act"). Finding no error, we affirm.

         Viewed in the light most favorable to support the verdict, [1] the evidence showed that between February and September 2011, as part of a plan to assert claims of adverse possession against a series of properties in DeKalb, Forsyth, and Fulton Counties that had been foreclosed upon, Weidman, Lowery, Ian Greye, and Giulio Greye[2] broke into and occupied homes located on those properties, even though they had no valid legal right to do so. In connection with these activities, Weidman and Ian Greye signed a written agreement entitled "Susan Weidman's Real Estate Acquisition Method Profit Sharing and Non-Disclosure Agreement" (the "Agreement") on February 14, 2011. After reciting that Weidman had "developed a proprietary method for claiming abandoned property and seeks the assistance of Ian Greye to execute the business model[, ]" the Agreement provided that Weidman would identify suitable "abandoned" properties and take steps to assert legal claim to them, while Ian Greye would physically occupy the properties. Exhibit A was a printed list of "Abandoned Properties Claimed by Susan Wiedman," and additional properties were later added to the Agreement.

         Lowery's actions

         To meet his obligations under the Agreement, Ian Greye enlisted Lowery, who was a close childhood friend, to help in occupying the numerous properties identified by Weidman. The evidence showed that Lowery lived for some period in three of the nine properties listed in Exhibit A to the Agreement: 6645 Shade Tree Way in Cumming, Forsyth County, Georgia ("Shade Tree"); 130 Champlain Street, in Decatur, DeKalb County, Georgia ("Champlain"); and 7975 Spalding Hills, Fulton County, Georgia ("Spalding Hills") (collectively, the "Properties").

         Lowery's girlfriend, Kelly Cude, testified at trial that she met Lowery when he was staying at Shade Tree and moved in with him shortly thereafter. When confronted at Shade Tree by the realtor who was handling the sale of the property, Lowery presented a lease purporting to show that he had rented the property through a company called "Hillsdale Property Management." Lowery and Cude left that property about three weeks after Cude moved in when the police told them they needed to find another place to live and the electricity was cut off. When the police arrived to tell them they could not stay there, Lowery not only claimed to be a tenant but he also completed a form provided by police, representing himself as Weidman's victim and indicating that he wanted to press charges against her. Lowery also represented to a news reporter that he had paid Weidman "a large amount of rent" for Shade Tree.

         Lowery and Cude next moved to Champlain for about a week[3] before moving to Spalding Hills. Before Lowery and Cude moved there, Lowery went with Weidman to visit the property, where he saw Weidman remove for-sale signs and enter the house through the back door. Cude said Lowery "seemed really freaked out" by Weidman's actions at Spalding Hills, but they decided to move in anyway. They stayed there about a week and could only enter the house through the back door or the garage. When officers from the Sandy Springs Police Department inspected Spalding Hills in October 2011, they discovered that the ceiling in the garage was ripped out and the door leading from the garage inside the house had been kicked open. They also found furniture and personal items inside the house, including a wristband from a hospital with Lowery's picture and name on it and a medical receipt with Cude's name on it. Despite Lowery's claims to be a paying tenant at Shade Tree, Cude testified that Lowery had no job or any other source of income while they were living together, and he never paid rent to live in any of the three houses.

         Weidman's Actions

         After the realtors hired to sell the foreclosed Properties (collectively, the "Realtors") discovered the Greyes and/or Lowery residing in the houses or other evidence of occupation, they undertook steps to remove the occupiers from the Properties, including summoning police or offering to pay them to leave as a cheaper alternative to the eviction process. On some of these visits, the Realtors and police observed Weidman at the Champlain and Spalding Hills properties, and a motion-activated video camera installed by the realtor at the Shade Tree house captured photographs of Weidman unloading furniture from a van into the house. Lowery and Ian Greye also identified her to police and the press as the purported landlord of the Shade Tree and Champlain properties.[4] While police were at Champlain on or around September 13, 2011, Weidman informed them that she had filed a claim of adverse possession against the property "as an experiment to see what would happen in the courts." A television reporter was also on the scene and interviewed Weidman, and during that interview, she admitted that she was occupying and allowing others to occupy the Champlain property based on a claim of adverse possession.[5]

         After the police and/or Realtors visited the Properties and confronted its occupants, the Realtors received cease and desist letters from "Susan Hoffman" and/or "Jonathan Levin," who purported to be attorneys affiliated with the law firm of "Gates, Levin, & Hoffman" located at 1050 East Piedmont Road in Marietta, Cobb County, Georgia. Some of the Realtors also received documentation and correspondence reflecting that an entity named "Hillsdale Property Management" was purporting to be the leasing agent and was located at the same Cobb County address. After the broker representing Shade Tree was unable to locate either an attorney named "Susan Hoffman" or a law firm named "Gates, Levin, & Hoffman," he contacted the State Bar of Georgia to file a complaint alleging the unauthorized practice of law. The State Bar of Georgia pursued that complaint and determined that the bar had no record of "Gates, Levin, & Hoffman," "Susan Hoffman," or "Jonathan Levin" practicing law in Georgia. On September 27, 2011, a bar investigator conducted a telephone interview with Weidman, who admitted making up the names of "Gates, Levin, & Hoffman" and its purported lawyers and signing and sending the correspondence in their names. The matter was subsequently referred to the Cobb County District Attorney's office.

         Investigation and charges

         In October 2011, Weidman and Lowery were arrested and criminally charged in DeKalb County in connection with the occupation of the Champlain property, but the matter was later transferred to Cobb County, where Weidman resides. An investigator with the DeKalb County District Attorney's office investigated Weidman and Lowery in connection with that county's charges. A search warrant was executed on Weidman's Cobb County home, and the investigator testified that the search resulted in the discovery of the Agreement signed by Weidman and Ian Greye, as well as loan documents, and copies of correspondence with certified mail receipts from "Gates, Levin, & Hoffman," and other fictitious entities and persons. In addition, police found a rental agreement between Weidman and a third-party corporation that rented mailboxes to the general public and was located at the 1050 East Piedmont Road address. The investigator also conducted a short interview with Weidman in which she admitted that she had moved into Champlain as part of an experiment in adverse possession.

         Weidman and Lowery were ultimately charged in Cobb County with three counts of violating Georgia RICO: Count 1 - Conspiracy to Acquire Property Through a Pattern of Racketeering Activity; Count 2 - Acquiring Property Through a Pattern of Racketeering Activity; and Count 3 - Participating in an Enterprise Through a Pattern of Racketeering Activity. A jury convicted Weidman on all three counts and acquitted Lowery on Count 1, but the jurors convicted him on the remaining counts.

         Case No. A18A0177

         In Case No. A18A0177, Lowery asserts that the State's evidence of venue was insufficient to support his RICO convictions and that the trial court erred in instructing the jury on the concept of deliberate ignorance.

         1. RICO venue.

         Lowery asserts that the State failed to prove that Cobb County was the proper venue for the RICO charges against him because the evidence showed that he was not personally involved in any racketeering activity in that county, and thus he contends that his convictions should be reversed.

         Our Supreme Court has held that "venue is a jurisdictional fact and an essential element that the State must prove beyond a reasonable doubt for every crime." Lanham v. State, 291 Ga. 625, 626 (2) (732 S.E.2d 72) (2012). See also Jones v. State, 272 Ga. 900, 901 (2) (537 S.E.2d 80) (2000). Generally, under Georgia law, "defendants should be tried in the county where the crime occurred. OCGA § 17-2-2 (a)." Lanham, 291 Ga. at 626 (2). Georgia's RICO statute has its own venue provision defining where a RICO crime occurs. At the time of the crimes charged in this case, that statute provided that "[i]n any criminal proceeding brought pursuant to this chapter, the crime shall be considered to have been committed in any county in which an incident of racketeering occurred or in which an interest or control of an enterprise or real or personal property is acquired or maintained." See former OCGA § 16-14-11.[6]

         Here, the only incidents of racketeering activity that the indictment alleges occurred in Cobb County are incidents of mail fraud under 18 U.S.C. § 1341 including letters sent by Weidman to the Realtors and others representing that they were from the fake law firm.[7] "Venue under Georgia's RICO act [that] is premised upon a predicate act of mail fraud can be placed only in counties from which, to which, or through which such mailings occurred." Dover v. State, 192 Ga.App. 429, 433 (2) (385 S.E.2d 417) (1989). Lowery does not dispute that the cited mailings were sent from or through Cobb County, nor does he dispute that Cobb County is the proper venue for such acts. Further, he does not dispute that Weidman sent the fraudulent letters or that she is guilty of mail fraud.[8] Rather, Lowery contends that because the State presented no evidence showing that he participated in these acts of mail fraud or any other acts of racketeering activity in Cobb County, venue was not proper in that county as to the charges against him.

         In support of this argument, he notes that the jury acquitted him of Count 1 of the indictment, which charged Weidman, Lowery, and the Greyes "individually and as parties concerned in the commission of a crime," with unlawfully conspiring "to acquire directly and indirectly control of property through a pattern of racketeering activity" in violation of OCGA § 16-14-4 (c). Based on this acquittal, Lowery argues that he cannot be considered a party to the crime of, or part of a conspiracy to commit, mail fraud and contends that the State cannot rely on the incidents of mail fraud to lay venue for his RICO convictions on Counts 2 and 3 of the indictment.[9]

         The gist of Lowery's argument, therefore, is that the Act's venue provision requires not only that an incident of racketeering have occurred in the county bringing the RICO charges, but also that each defendant alleged to have participated in the enterprise and pattern of racketeering activity must have personally committed an act of racketeering activity in that county or have participated in a conspiracy to commit ...


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