REDFORD v. STATE (2011)

Court of Appeals of Georgia.

REDFORD v. The STATE.

No. A11A0615.

Decided: April 01, 2011

Donald Franklin Samuel and Amanda RourkClark Palmer, for Redford. James David McDade, Judge James Edward Barker and James Alan Dooley, for the State.

A Douglas County jury found Julian Redford guilty beyond a reasonable doubt of acquiring control of money through a pattern of racketeering activity in violation of OCGA § 16–14–4(a),¹ based on multiple predicate acts of forgery in the first degree. Following the denial of his motion for a new trial, Redford appeals, contending the trial court erred in failing to instruct the jury, as he requested, on the offense of forgery in the first degree as a lesser-included offense of racketeering. For the reasons explained below, we affirm.

Viewed in the light most favorable to the jury's verdict,² the evidence shows the following. From November 2002 to June 2005, Redford took checks issued by insurance companies and made payable to his employer, Wren's Body Shop, forged the checks with the name of Phil Wren, who was authorized to endorse checks for the company, cashed the checks at a nearby check-cashing business, and kept the money for himself.³ The State offered evidence of 42 such checks, in amounts ranging from $746.26 to $5165.33 and totaling over $100,000. During the 32–month period, he cashed as few as zero and as many as four checks during a single month. In a single count indictment, the State charged Redford with acquiring control of money through a pattern of racketeering activity in violation of OCGA § 16–14–4(a), listing the forgeries as the predicate acts.

Redford requested that the jury be instructed:

If you do not believe beyond a reasonable doubt that the defendant is guilty of Violation of Georgia RICO Act, but do believe beyond a reasonable doubt that the defendant is guilty of Forgery in the First Degree, then you would be authorized to find the defendant guilty of Forgery in the First Degree[.]

The trial court denied the request.

Redford contends that, because forgery in the first degree was the only predicate offense for the charge of racketeering, proof of the racketeering charge would necessarily establish every element of forgery in the first degree and, therefore, forgery was a lesser-included offense of racketeering. He contends that the jury might have found that he committed acts of forgery but found that each forgery was a separate incident and, though repeated, not part of a larger scheme or pattern of interrelated acts, as required to prove racketeering. Redford contends that he was harmed by the trial court's failure to give the requested charge, in that he was sentenced to twenty years, the maximum sentence for racketeering,⁴ because he would have faced a maximum sentence of only ten years imprisonment if the jury had found him guilty of forgery in the first degree as a lesser-included offense of the single count of racketeering.⁵

Under Georgia law, the finder of fact in a criminal case may be authorized, depending on the evidence, to convict the defendant of a lesser-included offense, instead of the greater, charged offense, even though that lesser-included offense is not explicitly presented in the indictment or accusation. See OCGA § 16–1–6 (“An accused may be convicted of a crime included in a crime charged in the indictment or accusation.”); Bennett v. State, 244 Ga.App. 149, 151(2), 534 S.E.2d 881 (2000); Fulton v. State, 232 Ga.App. 898, 899(1), 503 S.E.2d 54 (1998). A crime is included in another crime, inter alia, when “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the [other] crime[.]” OCGA § 16–1–6(1).⁶

It is well established that, when a defendant is charged with one offense, and when there is some evidence, no matter how slight, presented to the jury that shows that the defendant committed a lesser-included offense, then the court must, upon timely written request, instruct the jury on the lesser-included offense. Edwards v. State, 264 Ga. 131, 133, 442 S.E.2d 444 (1994).⁷ On the other hand, where the State's evidence establishes all of the elements of the charged offense, and where there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. Id.

Under the Georgia RICO Act, “[i]t 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(a). The Act provides that “[r]acketeering activity” means, inter alia, “to commit, to attempt to commit, or to solicit, coerce, or intimidate another person to commit any crime which is chargeable by indictment under the following laws of this state,” and then lists 40 different criminal offenses under Georgia law. OCGA § 16–14–3(9)(A).⁸ One of those offenses is forgery in the first degree as defined in OCGA § 16–9–1.⁹ OCGA § 16–14–3(9)(a) (viii). A “[p]attern of racketeering activity” is defined as, inter alia,

[e]ngaging 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, provided at least one of such acts occurred after July 1, 1980, and that the last of such acts occurred within four years, excluding any periods of imprisonment, after the commission of a prior act of racketeering activity[.]

OCGA § 16–14–3(8)(a). Thus, as Redford contends, the State could not carry its burden of proving that he was guilty of racketeering as charged without also proving that he committed at least two acts that satisfied all of the elements of the offense of forgery in the first degree plus the additional element that the acts of forgery were part of a pattern of interrelated acts and not isolated incidents. Raines v. State, 219 Ga.App. 893, 894(1), 467 S.E.2d 217 (1996).¹⁰ In other words, the offense of forgery in the first degree was established by proof of less than all of the facts that established the offense of racketeering.¹¹

It does not necessarily follow, however, that Redford was entitled to a jury instruction on forgery in the first degree as a lesser-included offense of racketeering. 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.¹² In this case, the district attorney opted to obtain an indictment only for racketeering. Even though that charge of racketeering was predicated on conduct which is “chargeable by indictment” under OCGA § 16–9–1, “relating to forgery in the first degree,”¹³ Redford was not charged with forgery under OCGA § 16–9–1, but only with acquiring control of money through a pattern of racketeering activity under OCGA § 16–14–4(a). The jury was properly instructed that it was authorized to convict Redford only if the State had proved beyond a reasonable doubt that he acquired control of money through at least two of the specified separate acts of forgery and that the forgeries he committed were part of a pattern of interrelated racketeering activity, as defined in the RICO Act. Dorsey v. State, 279 Ga. 534, 540(2)(a), 615 S.E.2d 512 (2005). In the event the jury had found that Redford committed some or all of the specified forgeries, but did not find beyond a reasonable doubt that those forgeries constituted a pattern of interrelated racketeering activity, as defined in the Act, the jury would have been required to acquit Redford; it would not have been authorized to convict him, instead, of forgery. Raines v. State, 219 Ga.App. at 894(1), 467 S.E.2d 217. Based on all of the foregoing, we conclude that Redford was not entitled to a jury instruction on forgery in the first degree as a lesser-included offense of racketeering. Consequently, the trial court did not err in failing to give Redford's requested charge.

Judgment affirmed.

ELLINGTON, Chief Judge.

MILLER, P.J., and DOYLE, J., concur.