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Carr v. State

Court of Appeals of Georgia, Fourth Division

June 14, 2019

CARR
v.
THE STATE.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          Coomer, Judge.

         Following a jury trial, Jeffrey Carr was convicted on three counts of violating the Georgia Racketeer Influenced and Corrupt Organizations Act ("RICO").[1] On appeal, Carr challenges the sufficiency of the evidence to convict him on all counts, and argues the trial court erred in its instruction to the jury. Carr further contends that the trial court erred in the admission of certain opinion and ultimate issue testimony that was not based on a witness' first-hand knowledge. Lastly, Carr argues that his trial counsel was ineffective. Finding no error, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Falay v. State, 320 Ga.App. 781, 781 (740 S.E.2d 738) (2013) (citations omitted). So viewed, the evidence established that between 2009 and 2013 Carr took or received more than $3,046,934 from a 93 year old widow. The widow, who is characterized as a very frugal person, has an estate worth an estimated 20 to 25 million dollars. At trial, the widow testified that she never gave Carr permission to take three and a half million dollars from her, denied ever giving gifts of thousands of dollars to anyone, and denied ever purchasing vehicles for anyone.

         Following the widow's testimony at trial, the jury heard testimony from the widow's former business manager and attorney-in-fact under a previous financial power of attorney, Charles Olsen. Olsen testified that he and the widow would meet weekly or every other week so that he could assist the widow with financial and legal matters. Olsen served as the widow's attorney-in-fact from 2007 to 2010. Olsen stated that in the time that he served as her attorney-in-fact and business manager, only once did the widow give a gift worth thousands of dollars. Olsen, in his capacity as the widow's business manager, learned that certain property belonging to the widow had been sold without his knowledge or involvement at Carr's behest for a price below real market value. Olsen was ultimately removed as the widow's attorney-in-fact after Carr insinuated himself into the widow's life and Olsen's relationship with the widow diminished. During the four years Olsen served as the widow's business manager and attorney-in-fact, he received approximately $65,000 as compensation for his services.

         The widow's conservator testified that he was appointed by the court to represent the widow in 2014. He became the widow's personal attorney in March 2013, and was given financial power of attorney about a month later. At that time, the widow's taxes from 2010 to 2013 had not been paid, her estate was in disarray, and the widow was not aware of the seriousness of her financial condition. The conservator, who specializes in fiduciary law, testified that Carr engaged in egregious transactions while administering the widow's estate. Specifically, the conservator testified that there was "transfer after transfer after transfer after transfer of money" to Carr's name from the widow's accounts, and noted that such transfers were uncommon for someone with a financial power of attorney. The conservator found two transactions to Carr's personal accounts particularly suspicious and problematic: one transfer for around $1 million and another transfer for around $700,000. Those transfers related to the controversial sale of property that had belonged to the widow, at which the widow was not present for the sale. The conservator noted the irregularity in how over the course of one year, nearly 100 checks were written to Carr in flat amounts with no real accounting as to how and why they were written. The conservator testified that throughout his time of involvement with the widow's estate, she never directed him to give gifts of thousands of dollars to non-family members.

         The investigator in charge of the case testified that he first became aware of potential irregularities with the widow's bank account in 2011. The investigator discovered that 47 checks totaling $507,735 were drawn on an account that was funded by the widow. The investigator stated that several of the checks drawn on the widow's account were made payable to Carr for reimbursement of the widow's expenses; however, the investigator noted that Carr effectively double dipped because payments of those same expenses were paid directly out of the widow's account. There were a total of 96 transactions where checks were written payable to Carr wherein the memo line of the checks indicated that the funds were for specific purposes to be paid by Carr on behalf of the widow, yet the investigator could not find the corresponding transactions from Carr's account to show the payments had actually been made.

         The investigator further testified that through undue influence, Carr gained the trust of the widow and ultimately became the widow's 's attorney-in-fact under a financial power of attorney. His investigation revealed that Carr used his influence over the widow to isolate her from her friends and anyone who wanted to contact her. In one particular instance, after the widow was hospitalized to treat injuries from a fall, Carr arranged for her to receive rehabilitative treatment fifty to sixty miles away from her Cobb County home at a facility in Gainesville, Georgia, five miles from Carr's residence. The jury heard testimony that although the widow had expressed a desire to go to a rehabilitation facility near her home, Carr had her move to an assisted living facility near his home. Later, under questionable circumstances, the widow was moved to the residence of Carr's mother and father, who also lived in Gainesville, Georgia. A close friend of the widow testified that for the three years leading up to the trial, the widow had "just sort of disappeared" and that despite her best efforts, she was unable to get in contact with the widow. Starting in 2011, there were approximately three or four inquiries by adult protective services related to allegations of potential abuse of the widow. However, none of the referrals to adult protective services resulted in any official action.

         An expert in forensic accounting and fraud examination testified that after conducting a review of the various accounts belonging to the widow, Carr, and his father, the expert discovered that over $3 million left the widow's accounts and was designated for Carr, Carr's father, and other Carr family members. The expert noted that while some of the funds designated for Carr had been spent on "fun" items such as basketball tickets, clothing, jewelry, and other miscellaneous spending, she could not discern any benefit the widow may have received from the spending. The expert further testified that the widow was still paying her own expenses throughout the relevant period.

         The expert went on to testify regarding the predicate acts 1 through 25 in the indictment and confirmed them all with some exceptions. An example of an exception was in relation to predicate act 8 where the expert could see that approximately $63,000 in cash was withdrawn from the widow's accounts, but could not definitively state whether Carr or his father had deposited the checks or received the cash. The expert explained that while she could confirm from the documents that certain transactions occurred, she could not confirm who actually received the cash. The expert also testified that although she is not a handwriting expert, as part of her training and responsibility she looks for things that are "odd and suspicious" and is trained to identify discrepancies in signatures and handwriting. The expert stated that during her investigation, she noticed substantial differences in the signatures on the checks she reviewed.

         Carr was indicted on three counts of violating Georgia's RICO Act, and ultimately convicted on all counts and sentenced to 40 years with 10 to serve in confinement. Carr filed a motion for new trial, which the trial court denied following a hearing. This appeal followed.

         1. As a threshold matter, Carr contends that the evidence adduced at trial was insufficient for a jury to find him guilty beyond a reasonable doubt of all three counts in the indictment. More specifically, Carr argues that (1) the indictment did not sufficiently allege and the State did not prove any acts involving theft; and (2) there was no evidence of concealment to support the money laundering predicates. We disagree.

         In counts 1 through 3 of the indictment, the State charged Carr in considerable detail with conspiring to acquire money and property through a pattern of racketeering activity (OCGA § 16-14-4 (c)) which was carried out by his participation in an unlawful enterprise (OCGA § 16-14-4 (a)-(b)). OCGA § 16-14-4 (2010) provides that:

(a) It is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.
(b) It is 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.
© It is unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b) of this Code section.
"A person participates in a pattern of racketeering activity when he or she engages in at least two acts of racketeering activity in furtherance of one or more incidents, schemes, or transactions that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are ...

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