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
October 19, 2017
In the Court of Appeals of Georgia
A17A0858. MATHIS v. THE STATE. SE-027C
SELF, Judge.
Following a jury trial, the Superior Court of Floyd County entered judgments
of conviction against Christopher Mathis on 52 counts related to Mathis’ theft of
more than $600,000 as the operator of a Ponzi scheme.1 With the exception of
1
The jury returned verdicts of guilty against Mathis on four counts of felony
deposit account fraud (OCGA § 16-9-20) (counts 1, 6, 10, and 14); thirteen counts of
theft by taking (OCGA § 16-8-2) (counts 2, 7, 11, 15, 18, 21, 27, 31, 34, 38, 41, 45,
and 48); thirteen counts of theft by conversion (OCGA § 16-8-4) (counts 3, 8, 12, 16,
19, 22, 28, 32, 35, 39, 42, 46, and 49); fourteen counts of theft by deception (OCGA
§ 16-8-3) (counts 4, 9, 13, 17, 20, 23, 25, 29, 33, 36, 40, 43, 47, and 50); five counts
of exploitation of an elder person (OCGA § 30-5-8.C) (counts 5, 24, 30, 37, and 44);
and one count each of first degree forgery (OCGA § 16-9-1 (b)) (count 26), secreting
property to defraud another (OCGA § 16-9-53) (count 51), and violation of oath of
public office (OCGA § 16-10-1) (count 54). Counts 52 (theft by taking) and 53
(livestock theft [OCGA § 16-8-20]) were severed from Mathis’ trial, and he entered
pleas of guilty to these two counts following trial for the remaining 52 counts.
correcting three of Mathis’ sentences, the trial court denied Mathis’ motion for new
trial as amended and Mathis appeals. Mathis now contends that the trial court erred
in a portion of its jury instruction and that it failed to merge his convictions for theft
by conversion and theft by deception into his convictions for theft by taking. Because
we conclude the trial court failed to merge Mathis’ convictions for theft by taking, we
vacate those convictions and remand to the trial court for resentencing. We find no
additional error, and therefore affirm Mathis’ remaining convictions.
Viewed in the light most favorable to the verdict, the evidence revealed that
Mathis served as the elected chief magistrate of Floyd County. Mathis also owned a
cattle farm. At various times throughout 2008 and 2009, Mathis approached at least
13 potential investors to solicit funds for an investment in cattle. According to the
victims, most of whom had known Mathis for a substantial length of time, Mathis
proposed purchasing the cattle and maintaining them on his farm, breeding them, and
then selling them for a profit, splitting the profit with the victims. Collectively, the
victims gave Mathis in excess of $898,000. With limited exceptions,2 Mathis failed
2
For example, Mathis repaid three early victims in full and a fourth early
victim almost in full, but then only paid one couple $5,000 following their original
investment of $59,500 and gave another couple $1,400 and one head of beef for
slaughter following their original investment of $25,000.
2
to repay the victims any of the money they invested or any return on their investment.
On several occasions, Mathis gave a check to a victim representing the victim’s
original investment and their profit; however, those checks were dishonored upon
presentment for insufficient funds. Of the 13 victims, 5 were over the age of 65.
Mathis’ scheme began to unravel when one of the victims received a bad check for
$61,000 from Mathis and reported the check to the Rome Judicial Circuit District
Attorney’s Office. Local authorities contacted the Georgia Bureau of Investigation,
which investigated and detailed Mathis’ scheme.
1. Mathis first contends that the trial court erred by instructing the jury that it
“may, if you choose, review the details of each charge” of the indictment during
deliberations. According to Mathis, the trial court’s instruction essentially told the
jury it was not necessary to read the indictment, which was particularly harmful given
the sheer size and technical nature of the indictment. However, in view of the jury
charge in its entirety, we find no reversible error.
After the trial court administered the oath to the venire panel, but before jury
selection, the trial court read the 52-count indictment in its entirety to the panel.
Thereafter, in administering the oath to the jurors selected for trial, the trial court
noted that Mathis was “charged with four counts of deposit account fraud, 13 counts
3
of theft by taking, 13 counts of theft by conversions, 14 counts of theft by deception,
five counts of exploitation of [an] elder person, one count of forgery in the first
degree, one count of damaging, destroying and secreting property to defraud another
and one count of violation of oath of public office for a total of 52 counts. . . .”
Following the charge conference, the trial court noted that the parties agreed “the
Court could summarize the indictment in the same fashion it did when it administered
the oath to the jury.” As a result, the trial court charged the jury that Mathis was
charged with “52 offenses consisting of 4 counts of deposit account fraud, 12 counts
of theft by taking, 13 counts of theft by conversion, 14 counts of theft by deception,
5 counts of exploitation of an elder person, one count of forgery in the first degree,
one count of damaging, destroying and secreting property and one count of violation
of oath of public office.” The trial court further instructed the jury that “[y]ou will
have the indictment out with you in the jury room during the deliberations, at which
time you may, if you choose, review the details of each charge.” Trial counsel did not
object to the trial court’s instruction at the close of its charge. Mathis now contends
that the trial court’s instruction to the jury that it “may, if you choose, review the
details of each charge” is error.
4
As a threshold matter, because Mathis failed to raise this argument as a
“specific objection and the grounds for such objection before the jury [retired] to
deliberate,” OCGA § 17-8-58 (a), the argument has been waived. See OCGA § 17-8-
58 (b). Nonetheless, we are required to evaluate the allegedly erroneous jury
instruction for plain error. See OCGA § 17-8-58 (b); State v. Kelly, 290 Ga. 29, 32-33
(2) (a) (718 SE2d 232) (2011); Reyes v. State, 322 Ga. App. 496, 501 (4) (745 SE2d
738) (2013). When analyzing jury instructions for plain error, we consider four
prongs:
First, there must be an error or defect — some sort of deviation from a
legal rule — that has not been intentionally relinquished or abandoned,
i.e., affirmatively waived, by the appellant. Second, the legal error must
be clear or obvious, rather than subject to reasonable dispute. Third, the
error must have affected the appellant’s substantial rights, which in the
ordinary case means he must demonstrate that it affected the outcome of
the trial court proceedings. Fourth and finally, if the above three prongs
are satisfied, the appellate court has the discretion to remedy the error
— discretion which ought to be exercised only if the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings. (Emphasis in original.)
Reyes, 322 Ga. App. at 501 (4) (citing Kelly, 290 Ga. at 33 (2) (a)). “Stated more
succinctly, the proper inquiry is whether the instruction was erroneous, whether it was
5
obviously so, and whether it likely affected the outcome of the proceedings.”
(Citation and punctuation omitted.) Alvelo v. State, 290 Ga. 609, 614 (5) (724 SE2d
377) (2012). To that end, “jury instructions must be read and considered as a whole
in determining whether the charge contained error.” (Citations and punctuation
omitted.) Reyes, 322 Ga. App. at 501 (4).
Pretermitting the remaining prongs of the plain error analysis, we conclude that
Mathis cannot demonstrate the third prong: that an error in the trial court’s charge
“affected the outcome of the trial court proceedings.” Reyes, 322 Ga. App. at 501 (4).
See also Henderson v. State, 320 Ga. App. 553, 562 (8) (740 SE2d 280) (2013)
(“[P]retermitting whether the first, second, or fourth prongs were satisfied, Henderson
failed to satisfy the third.”). Upon review of the instructions as a whole, the trial court
recited the charges against Mathis and properly instructed the jury on the presumption
of innocence, that no conviction could result “unless and until each element of the
crime is proven to you beyond a reasonable doubt,” that the State bore the burden “to
prove every material allegation of the indictment and every essential element of the
crime charged beyond a reasonable doubt,” and that the burden of proof never shifts
to the defendant. See, e.g., id.
6
In addition, the trial court’s instruction comports with the relevant pattern jury
instructions for the offenses charged. See Suggested Pattern Jury Instructions, Vol.
II: Criminal Cases, 4th ed. (2007) §§ 2.64.20, 2.64.60, 2.64.90. Moreover, the trial
court emphasized the importance of the indictment by stating that “if after
considering the testimony and evidence presented to you together with the charge of
the Court you should find and believe beyond a reasonable doubt that the defendant
. . . did . . . commit the offenses as alleged in the indictment, you would be authorized
as to each of said counts to find the defendant guilty.” (Emphasis supplied.) Similarly,
the verdict form set out each count of the indictment separately. Finally, the
indictment was provided to the jury during deliberations, and the verdict form
prepared for the jury contained only those charges included in the indictment.
In conclusion, while the trial court’s statement to the jury that it “may, if you
choose, review the details of each charge” is imprecise and should be avoided, we
conclude that Mathis has failed to demonstrate that the statement “affected the
outcome of the trial court proceedings.” See Reyes, 322 Ga. App. at 501 (4).
Accordingly, when viewed in its entirety, we find there is no plain error in the trial
court’s charge. See Kelly, 290 Ga. at 32-33 (2) (a); Reyes, 322 Ga. App. at 501 (4).
7
2. Second, Mathis contends the trial court erred in failing to merge his
convictions for theft by conversion and theft by deception into his convictions for
theft by taking because “even if [each allegation of theft] involve[s] different
elements, they were convictions from taking the same money from the same victim.”
While we agree that certain of Mathis’ convictions should have merged for
sentencing, we do not agree that theft by conversion and theft by deception merge
into theft by taking.
“Whether two offenses should be merged is a question of law, and we apply a
‘plain legal error’ standard of review.” (Citation omitted.) Lavigne v. State, 299 Ga.
App. 712, 714 (2) (683 SE2d 656) (2009). OCGA § 16-1-7 (a) provides that
[w]hen the same conduct of an accused may establish the commission
of more than one crime, the accused may be prosecuted for each crime.
He may not, however, be convicted of more than one crime if:
(1) One crime is included in the other; or
(2) The crimes differ only in that one is defined to prohibit a
designated kind of conduct generally and the other to prohibit a specific
instance of such conduct.
8
Here, Mathis was charged with theft by taking, theft by deception,3 and theft by
conversion.4 Under OCGA § 16-8-2, “[a] person commits the offense of theft by
taking when he unlawfully takes or, being in lawful possession thereof, unlawfully
appropriates any property of another with the intention of depriving him of the
property, regardless of the manner in which the property is taken or appropriated.”
(Emphasis supplied.) As a result,
[u]nder the [theft by taking] statute, the phrase “regardless of the manner
in which the property is taken or appropriated” is a catch-all phrase
rendering our theft by taking statute broad enough to encompass theft by
conversion, theft by deception or any other of the myriad and even
yet-to-be-concocted schemes for depriving people of their property.
Thus, the [S]tate may indict someone for theft by taking, but prove theft
by deception. . . . Or, the [S]tate may prove theft by conversion. . . .
3
“A person commits the offense of theft by deception when he obtains property
by any deceitful means or artful practice with the intention of depriving the owner of
the property.” OCGA § 16-8-3 (a).
4
Theft by conversion occurs when, “having lawfully obtained funds or other
property of another including, but not limited to, leased or rented personal property,
under an agreement or other known legal obligation to make a specified application
of such funds or a specified disposition of such property, he knowingly converts the
funds or property to his own use in violation of the agreement or legal obligation.”
OCGA § 16-8-4 (a).
9
Patterson v. State, 289 Ga. App. 663, 665-666 (1) (658 SE2d 210) (2008). Using
Counts 2 through 4 as an example, the indictment alleged that Mathis, “BETWEEN
THE 18th DAY OF FEBRUARY, 2008 AND THE 8th DAY OF JULY, 2010” did
“unlawfully appropriate [$25,000] with the intention of depriving [the victims] of said
property”; did “knowingly convert [$25,000] to his/her own use in violation of [an]
agreement and legal obligation [to make a specified disposition of the property]”; and
did obtain $25,000 from the victims
with the intention of depriving the [victims] of said property by deceitful
means and artful practice by CREATING THE IMPRESSION THAT
SAID MONEY WAS TO BE USED TO PURCHASE CATTLE, THE
OWNERSHIP OF WHICH WAS TO BE SHARED WHEN [MATHIS]
HAD NO INTENTION OF PURCHASING CATTLE FOR SHARED
OWNERSHIP[.] (Emphasis in original.)
In short, then, for the solicitation of a single sum of money from each of 13 separate
victims, the State indicted Mathis for theft by taking, theft by conversion, and theft
by deception, resulting in 13 counts5 of each crime.6
5
A fourteenth count of theft by deception (Count 25) was the result of one of
the 13 victim’s sons’ participation in the victim’s investment.
6
Compare Kilby v. State, 335 Ga. App. 238, 244 (3) (780 SE2d 411) (2015) (no
merger of multiple counts of theft by taking where defendant took money from
multiple victims); Arnold v. State, 293 Ga. App. 395, 398 (3) (667 SE2d 167) (2008)
10
We note that theft by taking proscribes certain criminal conduct generally,
while theft by conversion and theft by deception are specific crimes.7 As a result, we
conclude that Mathis’ convictions for theft by taking merge pursuant to OCGA § 16-
1-7 (a) (2).8 Cf. Adkins v. State, 301 Ga. 153, 160-161 (4) (800 SE2d 341) (2017)
(general crime of aggravated assault with a deadly weapon (OCGA § 16-5-21 (b) (2))
merged into specific crime of aggravated assault by discharging a firearm from within
a motor vehicle (OCGA § 16-5-21 (b) (4))); Spurgeon v. State, 214 Ga. App. 227
(447 SE2d 164) (1994) (dicta that “theft by taking charges merged with the [theft by]
deception charges”); Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463)
(1991) (in partial reliance upon OCGA § 16-1-7 (a) (2), general crime of possession
of marijuana merged with specific crime of possession of marijuana with intent to
distribute). But see Kennedy v. State, 205 Ga. App. 152, 156 (5) (a) (421 SE2d 560)
(no merger where defendant took sums from same victim on separate occasions).
7
For this reason, the “required evidence” test is not applicable. See Drinkard
v. Walker, 281 Ga. 211, 216, n. 32 (636 SE2d 530) (2006); Stuart v. State, 318 Ga.
App. 839, 843 (734 SE2d 814) (2012) (same).
8
Because theft by taking is the more general crime and Mathis’ sentences for
theft by taking must be vacated, see OCGA § 16-1-7 (a) (2), we need not decide in
the first instance whether theft by taking merges into theft by conversion or theft by
deception.
11
(1992) (dicta that “theft by conversion was merged into [a] theft by taking conviction
at sentencing”); Johnson v. State, 130 Ga. App. 134, 137-138 (3) (202 SE2d 525)
(1973) (physical precedent only) (specific crime of theft of motor vehicle merged into
general crime of theft by taking). Patterson, supra, and similar cases do not mandate
a different result, inasmuch as those cases address the sufficiency of the evidence
relative to proof of theft by conversion or theft by deception following an indictment
for theft by taking, rather than the potential merger of those charges. See, e.g.,
Patterson, 289 Ga. App. at 665-666 (1); Bradford v. State, 266 Ga. App. 198, 201-
202 (2) (596 SE2d 715) (2004); McMahon v. State, 258 Ga. App. 512, 514-515 (1)
(574 SE2d 548) (2002). Accordingly, we vacate Mathis’ sentences for theft by taking
and remand this case to the trial court for resentencing.9
9
Because theft by conversion and theft by deception each require proof of an
element or fact which the other does not, these convictions do not merge as a matter
of fact or law. Compare OCGA §§ 16-8-3 with 16-8-4. See Drinkard, 281 Ga. at 213,
215; Lavigne, 299 Ga. App. at 714-715 (2). Moreover, as Mathis has not alleged that
his convictions for theft by conversion (which requires lawful possession of “funds
or other property of another”; see OCGA § 16-8-4 (a)) and theft by deception (which
requires an unlawful taking “by any deceitful means or artful practice”; see OCGA
§ 16-8-3 (a)) represent a mutually exclusive verdict and since he did not object to the
verdict form, that issue has been waived. See Peoples v. State, 295 Ga. App. 731, 734
(673 SE2d 82) (2009) (“since [the defendant] does not contend on appeal that the
crimes at issue here are mutually exclusive, we do not reach the issue”); Smith v.
State, 282 Ga. App. 339, 341 (1) (638 SE2d 791) (2006) (“A defendant waives any
argument that the verdict contains mutually exclusive findings or is otherwise
12
Judgment affirmed in part, vacated in part, and case remanded for
resentencing. Dillard, C. J., and Ray, P. J., concur.
inconsistent, confusing, or irregular if he fails to object to the form of the verdict.”).
13