Tamara Cotman v. State

FOURTH DIVISION
DILLARD, C. J.,
RAY, P. J., and SELF, J.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

August 11, 2017

In the Court of Appeals of Georgia
A17A1050. COTMAN v. THE STATE.
A17A1051. WILLIAMSON v. THE STATE.

DILLARD, Chief Judge.

In 2010, Governor Sonny Perdue ordered a special investigation into the nearly

decade-long suspicions that administrators, principals, and teachers in the Atlanta

Public Schools System (“APS”) had engaged in widespread cheating on standardized

tests used to assess the progress of elementary and middle-school students in Georgia.

After the conclusion of that investigation, the State indicted thirty-five APS

administrators, principals, and teachers for crimes ranging from altering State

documents, providing false statements to law-enforcement officials, and conspiring

to violate the Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act.

Ultimately, the State jointly tried 12 defendants, including School Reform Team
Executive Director Tamara Cotman and elementary school teacher Angela

Williamson. Then, following a six-month trial, a jury convicted 11 of the defendants,

specifically convicting Cotman and Williamson of conspiring to violate RICO and

also convicting Williamson on two counts of making false writings and two counts

of false swearing.

In separate appeals, which we have consolidated for review at the parties’

request, Cotman and Williamson contend that the trial court erred by instructing the

jury that it could find that they violated either of the two subsections of the RICO

statute despite the indictment charging the violation in the conjunctive, failing to find

that this instruction created a fatal variance, and sentencing the defendants under the

RICO statute rather than the general conspiracy statute. Cotman further contends that

the trial court erred in denying her plea in bar of double jeopardy. Nevertheless, for

the reasons set forth infra, we affirm the convictions of both Cotman and Williamson.

APS, Academic Targets, and Adequate Yearly Progress

Viewed in the light most favorable to the jury’s verdict,1 the record shows that

on July 1, 1999, Dr. Beverly Hall became the superintendent of Atlanta Public

Schools. Dr. Hall’s administrative staff included Sharon Pitts (who worked as Hall’s

1
See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

2
Chief of Staff), Colinda Howard (who oversaw the Office of Internal Resolution

(“OIR”) and was tasked with investigating employee misconduct), Millicent Few

(who worked as the APS Director of Human Resources), and Veleter Mazyck (legal

counsel). Additionally, under Dr. Hall, APS was organized into four School Reform

Teams (“SRT”), which were specific geographic regions of metropolitan Atlanta and

more specifically the elementary and middle schools within those regions. During Dr.

Hall’s tenure, Tamara Cotman served as the Executive Director of SRT-4, and as with

all of the directors, her responsibilities included providing supervisory guidance to

the principals and schools within her region.

Immediately after Dr. Hall was hired as superintendent, she began working

with professional education consultants to devise a means by which to measure and

improve APS students’ academic progress. Then, after those consultations, Dr. Hall

established a system requiring students at all APS elementary and middle schools to

be tested so as to determine the numbers of students who “met academic

expectations” and the numbers who “exceeded” such expectations. Importantly, every

school in APS was required to meet a “Target” number—i.e., a percentage of students

in both of these categories, and Dr. Hall mandated that these Target numbers be

raised every year.

3
 In January 2002, around the same time that Dr. Hall began implementing her

Targets system for APS, the federal government enacted the No Child Left Behind

Act of 2001. Under this legislation, the State of Georgia received federal funding to

assist low-income school districts and, inter alia, was required to report whether its

schools were making what was termed “Adequate Yearly Progress” (“AYP”), which

was measured by students’ performance on the annually administered Criterion-

Referenced Competency Test (“CRCT”). Schools failing to achieve AYP received

additional federal funding to assist teachers and struggling students.

Although inextricably linked, the Targets established by Dr. Hall were separate

from the requirements for AYP and, in fact, were more stringent. But in addition to

the stated objective of being a means by which to measure students’ academic

progress during Dr. Hall’s tenure, Targets quickly became the primary means by

which to measure teachers and administrators’ performance. For instance, the SRT

Executive Directors, including Cotman, received salary raises if their schools made

Targets and AYP, and employees at individual schools would similarly receive

bonuses if their schools achieved their Target numbers. Indeed, Dr. Hall’s own

employment contracts also provided significant salary bonuses that were contingent

upon APS achieving its academic progress Targets.

4
 The failure to make Targets, however, often resulted in negative consequences

for APS employees. Specifically, teachers and administrators whose students and

schools failed to meet Targets could be demoted (resulting in a decreased salary),

transferred (also resulting in a decreased salary), or placed on what was termed a

Professional Development Plan (“PDP”), which was often a precursor to the

termination of one’s employment contract with APS. Unsurprisingly, the pressure

placed on administrators and teachers to make Targets became intense and was

exacerbated by the fact that many at APS believed the Targets to be patently

unreasonable. Despite such concerns, Dr. Hall was uncompromising in her stance that

Targets be met, informing one principal upon his termination for failing to meet

Targets, despite his school’s academic progress, that she “had no time for incremental

gains.”

Evidence of Cheating Throughout APS

Within a few years of Dr. Hall’s hiring as APS superintendent, large

improvements in APS students’ test scores led to suspicions that such gains may have

been the result of cheating. Initially, little in the way of concrete evidence

demonstrated widespread abuses. But in March 2005, a teacher at Parks Middle

School informed the Executive Director of SRT-2 that the newly hired principal was

5
explicitly promoting cheating on the CRCT. And when it appeared that the Director

would not be taking any action, the teacher sent anonymous letters directly to Dr. Hall

to inform her of what was taking place at the school. Shortly thereafter, the SRT-2

Director attended a staff meeting at Parks Middle School, acknowledged the

anonymous letters, but ordered that they cease, stating that the principal had the

backing of Dr. Hall and would not be leaving. Nevertheless, APS directed Reginald

Dukes, a private investigator who had worked with APS in the past, to investigate the

allegations. On June 30, 2006, after interviewing teachers, including the teacher who

first reported the issue, Dukes submitted a report to Dr. Hall, in which he concluded

that cheating had occurred at Parks Middle School. But Dr. Hall took no action as a

result of the report, and APS never hired Dukes again.

In July 2008, a summer re-test of the CRCT for students from several different

APS schools was conducted at Deerwood Academy. During that re-test, several

teachers collaborated to erase students’ incorrect answers and change them to the

correct ones, and as a result, Deerwood met its AYP target for that year. A few

months later, in October 2008, Kathleen Mathers became the executive director of the

Governor’s Office of Student Achievement (“GOSA”), an agency tasked with

providing data analysis on various education programs in the State. And in reviewing

6
data related to the CRCT, Mathers noticed abnormally dramatic increases in student

achievement within APS, including at Deerwood Academy, in comparison to scores

statewide. In addition, her office and the Assessment Division of the Georgia

Department of Education were receiving numerous anonymous complaints from

parents and teachers of cheating at APS schools. Around this same time, the Atlanta

Journal Constitution (“AJC”) published an article regarding the unusual gains in test

scores within APS, in which they quoted an expert in the field of psychometrics,2 who

stated that the gains were as “extraordinary as a snowstorm in July” and warranted

further investigation.

Based on her own suspicions and the AJC’s article, Mathers decided to conduct

a statewide erasure analysis on all of the 2008 CRCT summer re-tests. In essence,

such an analysis entailed scanning the tests with an Optical Mark Recognition

machine that determines if answer bubbles, in addition to the one ultimately filled,

also contain residual amounts of pencil graphite, indicating that the bubble had been

filled but later erased. The analysis was completed in April 2009, and based on the

results, which showed that 11 Deerwood students had significantly high instances of

2
Psychometrics is a field of study concerned primarily with developing and
evaluating the effectiveness of educational testing.

7
erasing a wrong answer and changing it to a correct one (i.e., wrong-to-right

erasures), as well as an additional investigation, GOSA concluded that cheating had

occurred at Deerwood Academy during the 2008 summer re-test. Thereafter, Mathers

attempted to schedule a meeting with Dr. Hall to discuss the erasure analysis, but

after being unable to do so, she had a copy of the report hand-delivered to Dr. Hall

at a local conference the superintendent was attending.

On June 23, 2009, Mathers met with APS OIR director Howard and Penn

Payne, an external investigator, who APS hired to look into the cheating allegations,

and informed them of GOSA’s findings. Following this meeting, on July 6, 2009, Dr.

Hall emailed Mathers to inform her that APS and Payne had completed investigations

and determined that there was no evidence cheating had occurred at Deerwood

Academy. Then, on August 21, 2009, APS released Payne’s report regarding

Deerwood, which found no evidence of cheating. Ultimately, however, Mathers

learned that the statements in Dr. Hall’s email and the conclusions in the Payne report

were false. In fact, APS had not conducted an internal investigation and, in a draft

report that Dr. Hall ordered Few and Howard to destroy, Payne actually concluded

that cheating probably occurred at Deerwood during the 2008 summer re-test.

8
 Unsatisfied with APS and Dr. Hall’s response to her concerns, in the autumn

of 2009, Mathers decided to conduct a statewide erasure analysis for the 2009 CRCT

administered the previous spring. The analysis was conducted by CTB/McGraw Hill,

and on January 22, 2010, it released its report, which included the number of wrong-

to-right erasures in each school in the state (and in each classroom of every school),

and flagged those schools with the highest numbers of wrong-to-right erasures. The

report flagged 58 APS schools as having moderate to severe wrong-to-right erasures.

Consequently, in February 2010, GOSA ordered APS, as well as other flagged

districts, to conduct an internal investigation into the suspected cheating and report

its findings by April of that same year. In light of this directive, Dr. Hall assembled

a Blue Ribbon Commission (“BRC”) to conduct APS’s investigation. The BRC then

hired KPMG and tasked its investigators with interviewing APS teachers and

administrators. But additionally, despite Mathers cautioning APS against questioning

the erasure analysis, the BRC hired a private company to conduct another such

analysis. And on August 2, 2010, based on the second erasure analysis and KPMG

investigators’ interviews of APS teachers and administrators, the BRC submitted its

report to GOSA, in which it found no evidence of cheating. Unconvinced, Mathers

rejected the BRC’s findings.

9
 The Governor’s Special Investigation into APS

Following her rejection of the BRC’s report, on August 26, 2010, Mathers

requested that Governor Perdue order a special independent investigation into the

suspected cheating on the CRCT within APS. Governor Perdue agreed and appointed

former Attorney General Michael Bowers, former DeKalb County District Attorney

Robert Wilson, and investigator Richard Hyde, with assistance from the Georgia

Bureau of Investigation, to investigate the matter. Subsequently, the special

investigators went to CBT/McGraw Hill’s headquarters in Indianapolis, Indiana, to

replicate and, therefore, verify GOSA’s previous erasure analyses of the 2008 and

2009 CRCTs. As a result, the investigators determined that the previous erasure

analyses may have even under-reported the numbers of wrong-to-right erasures on

those two tests. In addition, from October 2010 through May 2011, the special

investigators and GBI agents conducted over 2,100 interviews of APS teachers and

administrators employed throughout 55 schools. And despite APS leadership being

uncooperative and many teachers lying during interviews, eventually 82 teachers and

administrators admitted to cheating during the 2009 CRCT, with many further

admitting that such cheating had been occurring at numerous APS schools for years.

10
 On June 30, 2011, the special investigators released their report, concluding

that widespread cheating on the 2009 CRCT had occurred within 44 APS schools.

Specifically, the special investigators’ report found that teachers and administrators

had cheated by numerous means, including violating testing security and storage

protocols, changing students’ answers after the tests were completed, providing

students with correct answers while the tests were being administered, and copying

the tests and reviewing the correct answers with students prior to the tests being

administered. In addition, the special investigators found that testing irregularities

were witnessed but not reported as required by testing protocols, and that testing

coordinators and administrators signed documents stating that protocols were

followed despite being well aware that those averments were not true. The report also

found that the reasons provided by teachers and administrators for why they cheated

were myriad. Many witnesses explained that if they made Targets and AYP (which

they claimed was difficult to do without cheating), they received bonus money and

their schools’ achievement would be publicly recognized at APS’s annual year-end

convocation. But many more witnesses stated that they engaged in cheating or failed

to report cheating they witnessed because of APS’s culture of obsession with Targets

11
and AYP and of punishing anyone who spoke out with demotions or terminations of

employment.

Tamara Cotman and Cheating within SRT-4

As previously noted, from 2004 through 2011, Cotman served as the Executive

Director of SRT-4 within APS. In August 2007, Patricia Wells, the principal of Ben

Carson Middle School, who began working there the previous year, became

concerned that many of her students’ academic performance did not correlate with

their elementary school CRCT scores and, therefore, she asked some of the students

to explain the discrepancy. The students responded that their elementary school

teachers had provided them with the answers to the CRCT. And because Ben Carson

Middle School was within SRT-4, Principal Wells immediately reported the

information to Cotman. But Cotman did not report Wells’s allegations to OIR and

took no action to investigate them. Then, at the end of month, Cotman gave Wells a

negative performance evaluation. By October 2007, Cotman placed Wells on a PDP,

and in December 2007, Cotman informed Wells that for the next school year she

could either accept a demotion to an assistant principal position at a different school

or resign. Wells opted to resign.

12
 Similarly, in the spring of 2007, just before the CRCT, the principal of Scott

Elementary called a staff meeting, during which the teachers were shown methods for

cheating on the upcoming test. Tonette Hunter, a paraprofessional at the school, was

alarmed by the discussion and, thus, reported the incident directly to Cotman. To

Hunter’s surprise, Cotman advised her that the issue was none of her business and

that she needed to cease discussing it if she wanted to keep her job. A few days before

the end of that school year, Cotman terminated Hunter’s employment.

That same school year, Michael Milstead was hired as the principal for Harper-

Archer Middle School, and immediately, he began noticing a significant discrepancy

between many of his students’ poor academic performance and their high 5th grade

CRCT scores. Milstead alerted Cotman regarding this discrepancy, but she did not

investigate and, in fact, informed Milstead that other principals did not appreciate him

raising this issue. In addition, Cotman continued to place a significant emphasis on

making AYP and placed Milstead on PDPs on two occasions when his school failed

to meet the goals. Later, Cotman told Milstead that he should resign, as she would not

be renewing his contract, and Milstead did so in 2009. Just prior to his resignation,

Milstead observed that the previous year’s CRCT scores were significantly higher

than the year before, but he had no faith that those scores were legitimate.

13
 In yet another similar incident, Monica Hooker began working as a teacher at

Best Academy in its inaugural year (2007-2008), and she was given the added

responsibility of collecting testing data for the school. Hooker reported to her

principal that the students’ academic performance did not correlate with their high

CRCT scores from the previous spring. Cotman responded to Hooker’s report by

demoting her and transferring her to another school, complaining to Hooker that she

was not playing for the right team. Given Cotman’s constant focus on test scores,

Hooker understood her demotion to be a result of her refusal to cheat on the CRCT.

In the spring of 2008, D. C., a third-grade student at Blalock Elementary (a

school also within SRT-4), told his mother that his teacher had given students the

answers during the recent CRCT. The mother, who had recently heard a similar story

from her young niece, then reported her son’s revelation to the school’s principal and

Cotman. But rather than investigating or reporting the complaint to OIR, Cotman told

the mother that her son was lying. Unpersuaded, the mother filed a complaint with

APS’s central office. Subsequently, an investigator with OIR interviewed D. C. and

his mother, but no further action was taken. And on September 12, 2008, the mother

received a letter from Dr. Hall, stating that there was no evidence that cheating had

occurred at Blalock Elementary.

14
 In the spring of 2009, Mary Gordon, a teacher at Turner Middle School,

received the answers to the Common Assessment test and students’ answer sheets.

But Gordon refused to cheat on the test, and, in fact, reported the incident to Cotman,

who refused to investigate the matter. Instead, Cotman advised Gordon: “They just

do things like that at Turner.” Later, Gordon was placed on a PDP, and she eventually

resigned due to the stress caused by her work environment.

Caitlin Sims was the principal of Grove Park Elementary during the 2008-2009

school year, and she noted that under Cotman, Targets were the number one priority.

Indeed, Cotman constantly ranked schools against each other and used PDPs as

punishment. Sims also recalled an instance when Cotman gave the principals empty

frames and told them to put a picture in the frame of something important, such as a

mortgage or car note as motivation for improving their schools’ CRCT scores. After

the BRC began its investigation into the cheating allegations, Cotman asked Sims to

explain to the commission how the school’s education strategies had resulted in the

gains, but Sims refused, explaining that she was uncomfortable doing so based on the

fact that the high number of wrong-to-right erasures at Grove Park were difficult to

reconcile. Shortly after Sims’s refusal, Cotman placed her on a PDP.

15
 Angela Williamson and Cheating at Dobbs Elementary

Angela Williamson was a well-respected 4th grade teacher at Dobbs

Elementary, which is within SRT-2. As with most other schools within APS, the

pressure to meet Targets at Dobbs was tremendous, and the principal would stress at

every staff meeting that Targets had to be met by any means necessary. In fact, the

principal was so adamant about meeting these goals that she would tell Dobbs’s

teachers that they should find new professions if they were unable to make Targets.

In 2007, during CRCT testing, the assistant principal brought the completed

tests into a teachers’ meeting at the end of the day and instructed the teachers to

“clean up” the tests. When a few of the newer teachers looked confused as to the

meaning of this comment, Williamson explained: “If you want to keep your jobs, you

better clean these tests up.” Williamson then demonstrated how to use the high

achieving students’ tests as a guide for changing the answers on the lower achieving

students’ tests.

Several of Williamson’s former students revealed that during the CRCT testing,

she would walk around the classroom and provide students with the correct answers

if they appeared to be answering questions incorrectly. All of these students further

stated that Williamson admonished them not to tell anyone, often stating that “what

16
happened in her class, stayed in her class.” Nevertheless, a few of the students told

other teachers about Williamson’s actions. In addition, a paraprofessional, who

proctored the CRCT in Williamson’s class, observed her providing students with

answers, thus corroborating the students’ accounts of such instances. Moreover,

GOSA’s erasure analyses in both 2008 and 2009 showed that numerous students in

Williamson’s class had statistically significant high wrong-to-right erasures.

Procedural Background

On March 29, 2013, following the conclusion of the Governor’s Special

Investigation, the State charged Dr. Hall, Cotman, Williamson, and 32 other APS

administrators, principals, and teachers, via an indictment filed in the Superior Court

of Fulton County, with numerous crimes relating to the widespread cheating within

APS, including conspiring to violate the Georgia RICO Act, providing false

statements to law-enforcement officials, theft by taking, influencing witnesses, and

false swearing. More specifically, the State charged Cotman with one count of

conspiring to violate the RICO Act and one count of influencing a witness, and it

charged Williamson with one count of conspiring to violate the RICO Act, two counts

of providing false statements, and two counts of false swearing.

17
 On May 14, 2013, Cotman filed a special demurrer seeking to quash Count 4

of the indictment, which charged her with the offense of influencing a witness.

Specifically, Cotman argued that the allegation that she “did intimidate [principal]

Jimmye Hawkins” in an effort to hinder communication with the GBI was too vague.

Shortly thereafter, the State re-indicted Cotman solely on the charge of influencing

a witness, and then it filed a motion requesting that the trial court enter an order of

nolle prosequi as to Count 4 in the original indictment and join the new indictment

with the original for trial purposes. But Cotman filed a response objecting to joinder

and a motion demanding a speedy trial on the new indictment.

Subsequently, Cotman was tried separately on the sole charge in the new

indictment of influencing a witness, and on September 12, 2013, at the conclusion of

that trial, the jury found her not guilty. One month later, Cotman filed a plea in bar

of former jeopardy, arguing that the State was barred from trying her on either the

RICO or influencing-a-witness charges in the original indictment. The State filed a

response, and following a hearing, the trial court denied Cotman’s plea in bar as to

the RICO charge but granted it as to the influencing-a-witness charge. Cotman

appealed the denial of her plea in bar on the RICO charge, but this Court affirmed the

trial court’s ruling, concluding “that Cotman, having opposed the State’s invitation

18
to join the two indictments for a single trial, faces subsequent prosecution because of

her own election and thereby waived the protections against subsequent prosecutions

afforded by OCGA § 16-1-8 (b).”3

On September 29, 2014, after months of discovery, pre-trial motions, and 21

defendants electing to plead guilty, the trial for 12 of the indicted defendants,

including Cotman and Williamson, commenced.4 During the six-month trial,

numerous witnesses, including 14 of the defendants who had opted to plead guilty,

testified as to the evidence discussed supra. The State rested its case on February 11,

2015, and, thereafter, the defendants presented their respective cases over the course

of the following six weeks. Finally, on April 1, 2015, after nearly a week of

deliberation, the jury found Cotman and Williamson guilty on the charge of

conspiracy to violate the RICO Act and further found Williamson guilty on the two

charges of providing false statements and the two charges of false swearing. Both

Cotman and Williamson waived motions for new trial, and these appeals follow.

3
Cotman v. State, 328 Ga. App. 822, 826 (1) (762 SE2d 824) (2014).
4
By the time the trial commenced, Dr. Hall was gravely ill and, therefore, was
not tried with the aforementioned defendants.

19
 Analysis

1. Cotman and Williamson contend that the trial court erred by instructing the

jury that it could convict the defendants if it found that they violated either subsection

(a) or subsection (b) of the RICO Act despite the indictment charging the defendants

with conspiring or endeavoring to violate subsections (a) and (b), conjunctively. We

disagree that this instruction constituted error.

At the outset, we note that a trial court’s duty in delivering charges to the jury

is to “tailor those charges not only to the indictment but also adjust them to the

evidence at trial.”5 In doing so, a trial court should tailor its charges to “match the

allegations of indictments, either by charging only the relevant portions of the

applicable Code sections or by giving a limiting instruction that directs the jury to

consider only whether the crimes were committed in the manner alleged in the

indictment.”6 And importantly, “in reviewing an allegedly erroneous jury instruction,

5
Palencia-Barron v. State, 318 Ga. App. 301, 306 (3) (733 SE2d 824) (2012)
(punctuation omitted); accord Cash v. State, 297 Ga. 859, 863 (2) (778 SE2d 785)
(2015).
6
Braley v. State, 276 Ga. 47, 53 (31) (572 SE2d 583) (2002); accord Wheeler
v. State, 327 Ga. App. 313, 318 (3) (758 SE2d 840) (2014); see Holman v. State, 329
Ga. App. 393, 401 (2) (b) (ii) (765 SE2d 614) (2014) (holding that the instructions
from the trial court must “sufficiently limit the jury’s consideration to the allegations
and elements of the offense as charged in the indictment” (punctuation omitted)).

20
we apply the plain legal error standard of review.”7 Bearing these guiding principles

in mind, we turn now to the defendants’ specific claim of error.

At the time the indictment in this case issued,8 OCGA § 16-14-4 (a) of the

Georgia RICO Act provided: “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.” OCGA § 16-14-4 (b) provided: “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.” And subsection (c) of the Act provided: “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.”

7
Wheeler, 327 Ga. App. at 318 (3) (punctuation omitted); see Hartzler v. State,
332 Ga. App. 674, 680 (3) (774 SE2d 738) (2015) (noting that appellate review of a
jury charge is de novo).
8
In 2015, the RICO Act was amended in several minor respects, but those
amendments did not become effective until July 1, 2015, and have no bearing on
these appeals. See Ga. L. 2015, Act 98, § 2-25.

21
 In Count 1 of the indictment in this matter, the State charged all of the

defendants with violating OCGA § 16-14-4 (c) of the RICO Act in that

said accused . . . unlawfully conspired and endeavored to acquire and
maintain, directly and indirectly, an interest in and control of U.S.
Currency, the property of the Atlanta Public School System (“APS”) and
the Georgia Department of Education (“GaDOE”) as further specified
below, through a pattern of racketeering activity in violation of OCGA
§ 16-14-4 (a), and while employed by and associated with APS,
unlawfully conspired and endeavored to conduct and participate in,
directly and indirectly, APS through a pattern of racketeering activity,
in violation of OCGA § 16-14-4 (b), as described below and
incorporated by reference as if fully set forth herein; contrary to the laws
of said State, the good order, peace and dignity thereof . . . .

During the charge conference, the State requested that the court instruct the jury that

the State only had to prove that the defendants conspired to violate subsection (a) or

subsection (b), even though the indictment stated that the defendants had violated

both subsections, conjunctively. Over the defendants’ objection, the court agreed.

And indeed, after it instructed the jury on the State’s burden of proof and the law

pertaining to the RICO Act and conspiracy, the trial court instructed the jury

specifically regarding Count 1 of the indictment as follows:

22
 Some crimes, such as those charged in the indictment, may be
committed in more than one way. Each defendant may only be convicted
of the alleged charge in the specific manner that the defendant has been
charged in this indictment.

I charge you that, whereas in Count 1 of the indictment, the State
alleges that the defendant committed a crime in more than one way, the
State need not prove that the defendant committed the crime in each way
charged.

Rather, it is sufficient if you, the jury, should find beyond a
reasonable doubt that the defendant committed the crime in at least one
way, one of the ways alleged.

As previously noted, Cotman and Williamson contend that the trial court erred

in essentially instructing the jury that it could convict the defendants of violating

OCGA § 16-14-4 (c) disjunctively, i.e., by finding that the defendants committed the

crime in at least one of the two ways charged, even though the indictment charged the

offenses conjunctively. But it is well settled that

when a defendant is charged, as in this case, with the violation of a
criminal statute containing disjunctively several ways or methods a
crime may be committed, proof of any one of which is sufficient to
constitute the crime, the indictment, in order to be good as against a

23
 special demurrer, must charge such ways or methods conjunctively if it
charges more than one of them.9

And at trial, it is sufficient for the State to show that “it was committed in any one of

the separate ways listed in the indictment, even if the indictment uses the conjunctive

rather than disjunctive form.”10 Moreover, as noted supra, the trial court here also

charged the jury that the burden was on the State “to prove every material allegation

of the indictment and every essential element of the crime charged beyond a

reasonable doubt.” Accordingly, the trial court did not err in instructing the jury that

the State could prove that the defendants conspired to violate the RICO Act in at least

one way of the two ways alleged.11

9
Cash, 297 Ga. at 862 (2) (punctuation omitted); see also Young v. State, 226
Ga. 553, 554 (1) (176 SE2d 52) (1970) (“As a general rule, where a statute specifies
several means or ways in which an offense may be committed in the alternative, it is
bad pleading to allege such means or ways in the alternative; the proper way is to
connect the various allegations in the accusing pleading with the conjunctive term
‘and’ and not with the word ‘or.’” (citation and punctuation omitted)).
10
Cash, 297 Ga. at 862 (2) (punctuation omitted); accord Graham v. State, 337
Ga. App. 193, 197-98 (2) (786 SE2d 857) (2016); Gipson v. State, 332 Ga. App. 309,
317 (5) (786 SE2d 857) (2015).
11
See Cash, 297 Ga. at 862-63 (2) (holding that when a criminal statute
contains disjunctive ways a crime can be committed, the State can show it was
committed in any one of the ways listed in the indictment even if the indictment uses
conjunctive language); Graham, 337 Ga. App. at 196-97 (2) (holding that trial court

24
 In her reply brief, Cotman cites to United States v. Gipson12 and proffers the

novel contention that the trial court’s challenged instruction constituted error because

it allowed the jury to render a non-unanimous verdict as to Count 1. But pretermitting

whether Cotman has waived this contention, given that she failed to specifically

object to the trial court’s instruction on this ground,13 failed to object to the verdict

did not err by instructing the jury that the State did not have to prove all of the acts
listed in each count of the indictment because “[i]f a crime may be committed in more
than one way, it is sufficient for the State to show that it was committed in any one
of the separate ways listed in the indictment, even if the indictment uses the
conjunctive rather than disjunctive form” (punctuation omitted)); Gipson, 332 Ga.
App. at 317-18 (5) (holding that court’s charge was not error because the State may
show that a crime was committed in any one of the separate ways listed in the
indictment, even if the indictment uses the conjunctive rather than disjunctive form
and because the court further instructed that the burden was on the State to prove
every material allegation of the indictment and every material element of the crime
charged beyond a reasonable doubt).
12
553 F2d 453 (5th Cir. 1977).
13
See Graham, 337 Ga. App. at 197 (2) (noting that because the defendant
failed to lodge any specific objection to the jury instruction he now challenges, we
review the instruction to determine whether it constitutes plain error which affects
substantial rights of the parties under OCGA § 17-8-58 (b)).

25
form,14 and, as noted, raised this issue for the first time in her reply brief,15 it

nevertheless lacks merit.

In Gipson, the defendant was charged with one count of transporting a stolen

vehicle in interstate commerce, in violation of 18 USC § 2312, and one count of

selling or receiving a stolen vehicle moving in interstate commerce, in violation of

18 USC § 2313.16 Not long after beginning deliberations, the jury requested additional

instructions from the court via a note that read, “In Count Two, will he be guilty of

all counts or will it be broken down?”17 Perceiving that the question could be

interpreted several ways, the trial court gave instructions responsive to each

interpretation.18 In response to its third interpretation of the jury’s question, the court

charged the jury as follows:

14
See Jones v. State, 279 Ga. 854, 860 (7) (a) (622 SE2d 1) (2005) (holding
that because defendant did not raise any objection to the form of the verdict below,
he waived any right to assert error in that regard on appeal).
15
See Green v. State, 339 Ga. App. 263, 271 (3) (793 SE2d 156) (2016)
(declining to consider argument made for first time in reply brief that was beyond
scope of enumerated error).
16
Gipson, 553 F2d at 455 (I).
17
Id.
18
Id.

26
 A third question that may be the one that the jury is really asking is,
must there be an agreement by all twelve jurors as to which act of those
several charged in Count Two, that the defendant did. For example,
would it be possible for one juror to believe that the Defendant had
stored property, and another juror to believe that he had received
property, and so on. If all twelve agreed that he had done some one of
those acts, but there was not agreement that he had done the same act,
would that support a conviction? The answer is yes. If each of you is
satisfied beyond any reasonable doubt that he did any one of those acts
charged, and did it with the requisite state of mind, then there would be
a unanimous verdict, and there could be a return of guilty under Count
Two of the indictment, even though there may have been disagreement
within the jury as to whether it was receiving or storing or what.19

Subsequently, the defendant objected, but the trial court overruled the objection.20

And at the conclusion of the trial, the jury acquitted the defendant on Count One but

convicted him on Count Two.21 But the United States Court of Appeals for the Fifth

Circuit reversed the conviction, finding that the trial court’s instruction

authorized the jury to return a guilty verdict despite the fact that some
jurors may have believed that [the defendant] engaged in conduct only

19
Id. at 455-56 (I).
20
Id. at 456 (I).
21
Id. at 455 (I).

27
 characterizable as receiving, concealing, or storing while other jurors
were convinced that he committed acts only constituting bartering,
selling, or disposing. Thus, under the instruction, the jury was permitted
to convict [the defendant] even though there may have been significant
disagreement among the jurors as to what he did.22

Accordingly, the Fifth Circuit concluded that the instruction was “violative of [the

defendant’s] right to a unanimous jury verdict.”23

Nevertheless, in this matter, Cotman’s argument that the trial court’s

instruction similarly sanctioned a non-unanimous verdict strains credulity given that

the two cases are in no way factually analogous. Indeed, unlike the instruction at issue

in Gipson,24 the trial court in this matter did not instruct the jury that it could convict

the defendants if some of the jurors found that the defendants conspired to violate

subsection (a) of the RICO Act while others found that they conspired to violate

subsection (b). Rather here, in stark contrast to Gipson, the trial court concluded its

instructions by directing that “[w]hatever your verdict is, it must be unanimous; that

means agreed by all.”

22
Id. at 458-59 (II).
23
Id. at 459 (II).
24
See supra note 19 and accompanying text.

28
 Moreover, recognizing that Gipson in essence concerned verdict specificity and

unanimity problems in situations involving alternative theories of actus rea under a

criminal statute, the Supreme Court of the United States in Schad v. Arizona,25 found

the Fifth Circuit’s approach wanting, specifically noting,

[w]e are not persuaded that the Gipson approach really answers the
question, however. Although the classification of alternatives into
‘distinct conceptual groupings’ is a way to express a judgment about the
limits of permissible alternatives, the notion is too indeterminate to
provide concrete guidance to courts faced with verdict specificity
questions.26

Following on the heels of Schad, the Supreme Court of the United States reiterated

in Griffin v. United States,27 that “a general jury verdict was valid so long as it was

legally supportable on one of the submitted grounds—even though that gave no

assurance that a valid ground, rather than an invalid one, was actually the basis for

the jury’s action.”28 Given the foregoing and the particular circumstances presented

25
501 U.S. 624 (111 SCt 2491, 115 LE2d 555) (1991).
26
Id. at 635 (II) (A).
27
502 U.S. 46 (112 SCt 466, 116 LE2d 371) (1991) (Scalia, J.).
28
Id. at 49 (II); accord Jones v. State, ___ Ga. ___, Slip op. at 4 (1) (Case No.
S17A0301; decided May 1, 2017) (2017 WL 1548564).

29
in the case sub judice, Cotman’s additional contention that the trial court’s instruction

as to Count 1 constituted error because it allowed the jury to render a non-unanimous

verdict is without merit.

2. Cotman and Williamson also contend that the trial court erred in failing to

find that the challenged jury instruction resulted in a fatal variance between the

indictment and the evidence proven at trial. Again, we disagree.

We first note that the Supreme Court of Georgia has held that

[o]ur courts no longer employ an overly technical application of the fatal
variance rule, focusing instead on materiality. The true inquiry,
therefore, is not whether there has been a variance in proof, but whether
there has been such a variance as to affect the substantial rights of the
accused. It is the underlying reasons for the rule which must be served:
1) the allegations must definitely inform the accused as to the charges
against him so as to enable him to present his defense and not to be
taken by surprise, and 2) the allegations must be adequate to protect the
accused against another prosecution for the same offense. Only if the
allegations fail to meet these tests is the variance fatal.29

Here, in Count 1 of the indictment, the State charged all of the defendants in

considerable detail, as previously discussed, with violating OCGA § 16-14-4 (c) of

29
Delacruz v. State, 280 Ga. 392, 396 (3) (627 SE2d 579) (2006); accord
Jarrett v. State, 299 Ga. App. 525, 529 (4) (683 SE2d 116) (2009).

30
the RICO Act by conspiring and endeavoring to engage in racketeering in violation

of OCGA § 16-14-4 (a) and by conspiring and endeavoring to engage in racketeering

in violation of OCGA § 16-14-4 (b). But in their appellate briefs, Cotman and

Williamson do not argue that these allegations failed to inform them of the charges,

took them by surprise, or failed to protect them against an additional prosecution for

the same offense. Rather, the defendants argue—similarly to their first claim of

error—that a fatal variance resulted when the indictment charged a violation of

OCGA § 16-14-4 (c) in two ways conjunctively, but the court instructed the jury that

the State could prove a violation in either of the ways charged disjunctively. But we

reiterate that “[when] a person is charged in an indictment with a crime in two ways

by using the conjunctive ‘and’ but [when] the statute contains ‘or,’ if it is proven that

the defendant violated the statute in either way he may be convicted.”30 And in such

30
Jarrett, 299 Ga. App. at 530 (6) (punctuation omitted); see Stone v. State,
229 Ga. App. 367, 370 (1) (b) (494 SE2d 48) (1997) (noting that if a crime may be
committed in more than one way, it is sufficient for the State to show that it was
committed in any one of the separate ways listed in the indictment, even if the
indictment uses the conjunctive rather than disjunctive form).

31
circumstances, there is “no fatal variance between the court’s charge and the

indictment.”31

Furthermore, although even the most generous reading of the defendants’ briefs

gleans no contention on their part that a fatal variance occurred because the State

failed to sufficiently prove that the defendants violated OCGA § 16-14-4 (c) in either

of the ways alleged in the indictment, the record, nevertheless, demonstrates that the

State presented sufficient evidence that Cotman and Williamson conspired to violate

OCGA § 16-14-4 (a) and (b).

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 interrelated by

distinguishing characteristics and are not isolated incidents.”32 Additionally, under

the statute, the term “‘[r]acketeering activity’ means to commit” a number of crimes

31
Jarrett, 299 Ga. App. at 530 (6); see Thomas v. State, 192 Ga. App. 427, 427-
28 (385 SE2d 310) (1989) (holding that variation between indictment, which charged
defendant with receiving “and” retaining stolen property, and receiving stolen
property statute that trial court read to jury, which defined offense as receipt,
disposition “or” retention of such property, was not error).
32
See former OCGA § 16-14-3 (8) (A) (2011).

32
chargeable by indictment under the laws of Georgia, as set forth in OCGA § 16-14-3

(9) (A) (i) – (xxxvii), including the crimes of theft and those relating to perjury and

other falsifications.33 And under Georgia law, a person may be found guilty of a

RICO conspiracy “if they knowingly and willfully join a conspiracy which itself

contains a common plan or purpose to commit two or more predicate acts.”34

Here, as recounted in detail supra, the evidence showed that APS

administrators and teachers, including Dr. Hall, Cotman, and Williamson, received

bonuses and increases in their salaries if Targets and AYP were met and that those

goals were often met as a direct result of cheating on the CRCT. The evidence also

showed that, on several occasions, Cotman was informed regarding instances of

cheating but took no action to investigate such and, in fact, punished those who

reported cheating with demotions or terminations of employment. In addition, the

evidence showed that Williamson cheated on the CRCT, a State document, by

improperly providing students with correct answers and by changing wrong answers

to correct ones on tests that had been completed. The evidence further showed that

33
See former OCGA § 16-14-3 (9) (A) (ix), (xv) (2011).
34
Rosen v. Protective Life Ins. Co., 817 FSupp2d 1357, 1382 (II) (G) (N.D. Ga.
2011) (applying the Georgia RICO Act); accord Wylie v. Denton, 323 Ga. App. 161,
165 (1) (746 SE2d 689) (2013) (physical precedent only).

33
Williamson lied to law enforcement when confronted with claims that she cheated.

Thus, the evidence was sufficient to support the defendants’ convictions,35 and any

fatal variance claim in this regard lacks merit.

3. Cotman and Williamson further contend that the trial court erred in

sentencing them under the RICO Act rather than the general conspiracy statute,

arguing that sentencing them under the former violated the rule of lenity. Yet again,

we disagree.

As discussed at length, supra, Cotman and Williamson were charged and

convicted of conspiracy to violate the RICO Act under OCGA § 16-14-4 (c). And

OCGA § 16-14-5 (a), the sentencing section of the RICO Act, provides that “[a]ny

person convicted of the offense of engaging in activity in violation of Code Section

16-14-4 shall be guilty of a felony and shall be punished by not less than five nor

35
See Dorsey v. State, 279 Ga. 534, 540 (2) (b) (615 SE2d 512) (2005) (holding
that evidence was sufficient to establish that defendant, as county sheriff, acquired
property and money through a pattern of racketeering, thus supporting his conviction
under the RICO Act); Brown v. State, 321 Ga. App. 198, 204 (4) (739 SE2d 118)
(2013) (holding that the evidence that defendant conspired with other employees to
falsify overtime records in exchange for payment was sufficient to support
defendant’s RICO conviction); Martin v. State, 189 Ga. App. 483, 489-90 (5) (376
SE2d 888) (1988) (finding that evidence was sufficient to show that three attorneys
were part of RICO enterprise which engaged in ticket-fixing of alcohol-related
charges by removing files relating to charges from county solicitor’s office); see also
Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt. 2781, 61 LE2d 560) (1979).

34
more than 20 years’ imprisonment or the fine specified in subsection (b) of this Code

section, or both.”

In this matter, after conducting a hearing, the trial court sentenced Cotman to

twenty years, with seven years to serve in incarceration, and sentenced Williamson

to five years, with two years to serve in incarceration. And although these sentences

were within the range provided in OCGA § 16-14-5 (a), the defendants argue that

they should have been sentenced under the general conspiracy statute, which

provides:

A person convicted of the offense of criminal conspiracy to commit a
felony shall be punished by imprisonment for not less than one year nor
more than one-half the maximum period of time for which he could have
been sentenced if he had been convicted of the crime conspired to have
been committed, by one-half the maximum fine to which he could have
been subjected if he had been convicted of such crime, or both.36

Specifically, they argue that because the general conspiracy statute requires a trial

court to impose a sentence that is not more than one-half the maximum period of time

for which defendants could have been sentenced if they had been convicted of the

36
OCGA § 16-4-8.

35
crime conspired to have been committed,37 sentencing them under the RICO Act

violated the rule of lenity.

As we have previously explained, the rule of lenity “ensures that if and when

an ambiguity exists in one or more statutes, such that the law exacts varying degrees

of punishment for the same offense, the ambiguity will be resolved in favor of a

defendant, who will then receive the lesser punishment.”38 But the rule of lenity

comes into play only to “resolve ambiguities that remain after applying all other tools

of statutory construction.”39 Importantly, when “there is a specific and a general

criminal statute, the rule of lenity is not implicated, and a specific statute will prevail

37
See id.
38
Gordon v. State, 334 Ga. App. 633, 634 (780 SE2d 376) (2015) (punctuation
omitted); see McNair v. State, 293 Ga. 282, 283 (745 SE2d 646) (2013) (noting that
the rule of lenity provides that statutory ambiguity is resolved in favor of the
defendant, who will then receive the lesser punishment); Issa v. State, 340 Ga. App.
327, 341 (7) (796 SE2d 725) (2017) (same); Mathis v. State, 336 Ga. App. 257, 260
(784 SE2d 98) (2016) (same).
39
State v. Nankervis, 295 Ga. 406, 409 (2) (761 SE2d 1) (2014) (punctuation
omitted); see Woods v. State, 279 Ga. 28, 31 (3) (608 SE2d 631) (2005) (holding that
when a crime is penalized by a special law, the general provisions of the penal code
are not applicable); McWhorter v. State, 275 Ga. App. 624, 629 (2) (621 SE2d 571)
(2005) (same).

36
over a general statute, absent any indication of a contrary legislative [directive].”40

And here, the clear language of OCGA § 16-14-5 (a) demonstrates that it is a specific

law criminalizing a violation of any part of OCGA § 16-14-4.41 Consequently, the

trial court did not err in sentencing Cotman and Williamson under the specific

provisions of OCGA § 16-14-5 (a).42

4. Finally, Cotman contends that the trial court erred in denying her plea in bar

of double jeopardy. Once again, we disagree.

40
Nankervis, 295 Ga. at 409 (2) (punctuation omitted); see Woods v. State, 279
Ga. 28, 31 (3) (608 SE2d 631) (2005) (holding that when “a crime is penalized by a
special law, the general provisions of the penal code are not applicable”).
41
See OCGA § 16-14-5 (a).
42
See Nankervis, 295 Ga. at 409-10 (2) (holding that the rule of lenity did not
apply in prosecution for methamphetamine trafficking and, thus, trial court was
precluded from sentencing defendant for manufacturing a controlled substance given
that methamphetamine trafficking statute was more specific than general statutory
provisions for manufacturing controlled substances); Woods, 279 Ga. at 30-31 (3)
(holding that trial court did not err in sentencing defendant under OCGA § 16-13-33,
rather than the general “attempt” statute (OCGA § 16-4-6), because “the two
sentencing statutes are mutually exclusive and there is no uncertainty as to which
applies—OCGA § 16-13-33 renders OCGA § 16-4-6 inapplicable in prosecutions
under the Georgia Controlled Substances Act.”); McWhorter, 275 Ga. App. at 629-30
(2) (finding that general statute limiting sentece for conspiracy to one-half maximum
sentence for substantive crime did not apply when imposing sentence for offense of
conspiracy to manufacture methamphetamine because Controlled Substances Act
specifically allowed imposition of maximum sentence for substantive crime when
imposing sentence for conspiracy to commit crime).

37
 As discussed supra, in Count 4 of the original indictment, the State charged

Cotman with the offense of influencing a witness, specifically alleging that she “did

intimidate [principal] Jimmye Hawkins.” Cotman filed a special demurrer, which

prompted the State to re-indict her solely on the same charge of influencing Hawkins

but with additional details specifying the nature of the intimidation. The State then

filed a motion requesting that the trial court enter an order of nolle prosequi as to

Count 4 in the original indictment and join the new indictment with the original for

trial purposes. But Cotman objected to joinder, demanded a speedy trial on the new

indictment, and, at the conclusion of that trial, was acquitted.

Cotman then filed a plea in bar of former jeopardy, arguing that the State was

precluded from trying her on either the RICO or influencing-a-witness charges in the

original indictment. Subsequently, the trial court granted Cotman’s plea in bar as to

the influencing-a-witness charge but denied it as to the RICO charge. On appeal, we

affirmed the trial court’s ruling, concluding “that Cotman, having opposed the State’s

invitation to join the two indictments for a single trial, faces subsequent prosecution

because of her own election and thereby waived the protections against subsequent

prosecutions afforded by OCGA § 16-1-8 (b).”43 But in that same opinion, we also

43
Cotman, 328 Ga. App. at 826 (1).

38
noted that “Cotman [did] not argue substantive double jeopardy for purposes of the

appeal.”44 Thus, in this appeal, Cotman now contends that the trial court erred in

denying her plea in bar because the subsequent prosecution on the RICO charge was

barred by substantive double jeopardy.

It is well established that the prohibition against double jeopardy in both the

United States Constitution45 and the Georgia Constitution46 protects our citizens from,

inter alia, being prosecuted a second time for the same offense after an acquittal or

conviction.47 More specifically, double jeopardy protects against three types of

44
Id. at 825 (1) n.5.
45
See U.S. CONST. amend. V (“. . . nor shall any person be subject for the
same offence to be twice put in jeopardy of life or limb. . . .”); see also Brown v.
Ohio, 432 U.S. 161, 165 (II) (97 SCt 2221, 53 LE2d 187) (1977) (“Because it was
designed originally to embody the protection of the common-law pleas of former
jeopardy, the Fifth Amendment double jeopardy guarantee serves principally as a
restraint on courts and prosecutors. The legislature remains free under the Double
Jeopardy Clause to define crimes and fix punishments; but once the legislature has
acted courts may not impose more than one punishment for the same offense and
prosecutors ordinarily may not attempt to secure that punishment in more than one
trial.” (citation and footnote omitted)).
46
See GA. CONST. Art. 1, § 1, ¶ XVIII (“No person shall be put in jeopardy
of life or liberty more than once for the same offense except when a new trial has
been granted after conviction or in case of a mistrial.”).
47
See Phillips v. State, 298 Ga. App. 520, 521 (1) (680 SE2d 424) (2009) (“The
prohibition against double jeopardy in both the United States and Georgia

39
abuses: “(1) a second prosecution for the same offense after acquittal, (2) a second

prosecution for the same offense after conviction, and (3) multiple punishments for

the same offense.”48 And the standard of review of a “grant or denial of a double

jeopardy plea in bar is whether, after reviewing the trial court’s oral and written

rulings as a whole, the trial court’s findings support its conclusion.”49 Bearing these

guiding principles in mind, we turn now to Cotman’s specific claim.

The well established test for determining whether two offenses are sufficiently

distinguishable to avoid the prohibition against double jeopardy and, thereby, permit

the imposition of cumulative punishment, was delineated in Blockburger v. United

States,50 in which the Supreme Court of the United States held: “[t]he applicable rule

is that where the same act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine whether there are two offenses

Constitutions, among other things, protects against a second prosecution for the same
offense after acquittal or conviction.”).
48
Garrett v. State, 306 Ga. App. 429, 430 (702 SE2d 470) (2010), citing North
Carolina v. Pearce, 395 U.S. 711, 717 (89 SCt 2072, 23 LE2d 656) (1969).
49
Johns v. State, 319 Ga. App. 718, 719 (738 SE2d 304) (2013) (punctuation
omitted).
50
284 U.S. 299 (52 S.Ct. 180, 76 LEd. 306) (1932).

40
or only one, is whether each provision requires proof of a fact which the other does

not.”51 Furthermore, the Supreme Court of the United States has also “recognized that

the Blockburger test focuses on the proof necessary to prove the statutory elements

of each offense, rather than on the actual evidence to be presented at trial.”52

Accordingly, if each statute requires proof of an additional fact which the other does

not, the offenses are not the same under the Blockburger test.53

As previously noted, in her earlier trial, Cotman was acquitted on the charge

of influencing a witness under OCGA § 16-10-93 (b) (1) (C), which provides:

It shall be unlawful for any person knowingly to use intimidation,
physical force, or threats; to persuade another person by means of
corruption or to attempt to do so; or to engage in misleading conduct
toward another person with intent to . . . [h]inder, delay, or prevent the

51
Id. at 304; accord Garrett, 306 Ga. App. at 430. This constitutional test is
also codified under OCGA § 16-1-8 (b). See McCannon v. State, 252 Ga. 515, 519,
315 SE2d 413 (1984). Moreover, the Supreme Court of Georgia specifically adopted
the “required evidence” test under Blockburger for determining when one crime is
“included in” another under OCGA §§ 16-1-6 and 16-1-7 (a) (1). Drinkard v. Walker,
281 Ga. 211, 216 (636 SE2d 530) (2006).
52
Garrett, 306 Ga. App. at 431 (punctuation omitted), citing Illinois v. Vitale,
447 U.S. 410, 416 (100 SCt 2260, 65 LE2d 228) (1980).
53
See Garrett, 306 Ga. App. at 431 (punctuation omitted); see also Ledford v.
State, 289 Ga. 70, 71 (1) (709 SE2d 239) (2011) (applying “required evidence” test
for determining whether one offense is included in another).

41
 communication to a law enforcement officer, prosecuting attorney, or
judge of this state of information relating to the commission or possible
commission of a criminal offense or a violation of conditions of
probation, parole, or release pending judicial proceedings.

But racketeering is “a special type of compound offense, not simply a more serious

grade of forgery, robbery, homicide, or any of the other offenses specified in the Act

as predicate offenses.”54 And although influencing a witness can be a predicate

offense supporting a RICO charge,55 it is certainly not a necessary element of such a

charge. More importantly, it was not a predicate offense in Cotman’s RICO trial. In

fact, the amended indictment did not allege that Cotman engaged in influencing a

witness, either as a predicate act of the RICO charge or as a separate charge, and the

State presented no evidence during the trial pertaining to the charge for which

Cotman was acquitted in her first trial—i.e., her alleged attempt to intimidate

Principal Hawkins from speaking with the GBI. Furthermore, while Cotman is correct

that many of the same witnesses who testified during her first trial also testified

during her RICO trial, none of those witnesses testified regarding the specific meeting

54
Redford v. State, 309 Ga. App. 118, 122 (710 SE2d 197) (2011).
55
See former OCGA § 16-14-3 (9) (A) (xiv) (2011).

42
with Principal Hawkins that resulted in the influencing-a-witness charge. Regardless,

Cotman’s focus on such witness overlap in the two trials is misplaced given, as

discussed supra, that “the Blockburger test focuses on the proof necessary to prove

the statutory elements of each offense, rather than on the actual evidence to be

presented at trial.”56 Accordingly, Cotman’s prosecution on the RICO charge after

she was acquitted on the influencing-a-witness charge was not barred by substantive

double jeopardy.57

For all these reasons, we affirm Cotman and Williamson’s convictions in both

Case No. A17A1050 and Case No. A17A1051.

Judgment affirmed in both cases. Ray, P. J., and Self, J., concur.

56
See supra note 51 and accompanying text (emphasis added).
57
See Stepp v. State, 286 Ga. 556, 558-59 (690 SE2d 161) (2010) (holding that
defendant’s conviction in recorder’s court for violation of county ordinance
regulating her responsibilities as pet owner did not bar, on double jeopardy grounds,
subsequent prosecution in state court for misdemeanor reckless conduct, as violation
of county ordinance required proof of ownership of animal, whereas reckless conduct
statute did not, and violation of reckless conduct statute required proof of actual
bodily harm being caused, which ordinance did not); Southwell v. State, 320 Ga. App.
763, 763-65 (1) (740 SE2d 725) (2013) (holding that defendant’s separate convictions
for robbery by intimidation and felony theft by taking did not violate prohibition
against double jeopardy because robbery by intimidation was based on defendant’s
act of threatening victim with knife to obtain money, while theft was based on
stealing victim’s car and did not require proof that taking was by intimidation).

43