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Law v. State

Court of Appeals of Georgia, Fifth Division

March 12, 2019

LAW
v.
THE STATE.

          MILLER, P. J., RICKMAN and MARKLE, JJ.

          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 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 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 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 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 S.E.2d 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 S.E.2d 57) (2015); see also Mitchell v. State, 282 Ga. 416, 419 (4) (651 S.E.2d 49) (2007). Here, 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 S.E.2d 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 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 S.E.2d 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 S.E.2d 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 ...


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