Allen v. State, A18A1196

• Decision Date: 23 October 2018
• Docket Number: A18A1196
• Citation: 347 Ga.App. 731,820 S.E.2d 747
• Parties: ALLEN v. The STATE.
• Court: Georgia Court of Appeals

347 Ga.App. 731

820 S.E.2d 747

ALLEN

v.The STATE.

A18A1196

Court of Appeals of Georgia.

October 23, 2018

Rachel Dawn Ackley, for Appellant.

Matthew Carl Krull, Michellle Lea Dissman, for Appellee.

McFadden, Presiding Judge.

After a jury trial, Michael Anthony Allen was convicted of misdemeanor theft of services and misdemeanor fourth-degree forgery. Allen appeals the denial of his motion for new trial. He argues that the evidence does not support his convictions, but we find the evidence sufficient; that trial counsel was ineffective, but he has not shown both deficient performance and prejudice; that the trial court erred by allowing witnesses to give hearsay testimony, but the testimony fell within a hearsay exception; that the trial court erred by allowing the state to use a piece of demonstrative evidence, but the state properly authenticated the evidence; and that the trial court erred by refusing to continue the trial, but Allen did not ask for a continuance. So we affirm.

1. Sufficiency of the evidence.

Allen argues that the evidence was insufficient to prove the element of intent. When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation omitted; emphasis in original). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id."As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld." Miller v. State , 273 Ga. 831, 832, 546 S.E.2d 524 (2001) (citations and punctuation omitted).

So viewed, the record shows that Allen took a riding lawnmower to an Ace Hardware store to be repaired. Allen paid for the service with a check for $257. The bank did not honor the check.

The check was riddled with indicia of forgery. The name printed on the check was "Michal Allan," while the defendant’s name is Michael Allen. The check listed a Live Oak, Florida address, but the zip code for the address printed on the check was off by one digit. The address printed on the check for the bank, BB&T, was the address of a retail business, not a bank. The check numbers printed in the top corner and bottom corner of the check did not match. The printed routing and account numbers were centered on the check, which is rare for personal checks, and most importantly, the routing number was invalid.

Ace never received money for Allen’s service, and Allen never came back to the store to try to pay.

A person commits the offense of fourth-degree forgery

when with the intent to defraud he or she knowingly ... [m]akes, alters, possesses, utters, or delivers any check written in the amount of less than $1,500.00 in a fictitious name or in such manner that the check as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority....

OCGA § 16-9-1 (e) (1) (punctuation omitted). "[K]nowingly passing as genuine a forged instrument is conclusive of the intent to defraud." Collins v. State , 258 Ga. App. 400, 401-402 (1), 574 S.E.2d 423 (2002) (citations and punctuation omitted).

"A person commits the offense of theft of services when by deception and with the intent to avoid payment he knowingly obtains services ... which [are] available only for compensation." OCGA § 16-8-5. "Deception, in turn, involves providing, either implicitly or explicitly, knowingly false information to another." Jones v. State , 285 Ga. App. 822, 825 (2), 648 S.E.2d 133 (2007) (citation omitted). "The essential ingredient of the offense is the intention to avoid payment. As is usual in cases of this type, there is no direct evidence that appellant obtained services by deception and with the intention of avoiding payment. The question then becomes whether the circumstantial evidence warranted the conviction." Williamson v. State , 191 Ga. App. 388, 389, 381 S.E.2d 766 (1989) (citations and punctuation omitted).

Given the apparent, obvious deficiencies with the check, the jury had before it sufficient evidence to "have found the essential elements of the crime[s] beyond a reasonable doubt." Jackson , 443 U.S. at 319 (III) (B), 99 S.Ct. 2781. See Taylor v. State , 293 Ga. App. 551, 553 (1), 667 S.E.2d 405 (2008) (citation omitted) (even if jury accepted defendant’s claim that she did not know checks were fraudulent, "the knowledge element of a violation of a criminal statute can be proved by demonstrating either actual knowledge or deliberate ignorance," and had defendant questioned the person who gave her the checks or examined the checks, she would have noted discrepancies, such that a reasonable jury could have determined "at the very least, [defendant] remained deliberately ignorant of the fraudulent nature of the checks") (citations and punctuation omitted).

2. Effective assistance of counsel.

Allen argues that trial counsel was ineffective because he failed to present evidence that Allen had obtained the check from a legitimate, third-party source and had successfully used checks from this checkbook before. Specifically, Allen argues that counsel should have contacted the legal team or subpoenaed a representative from Deluxe Corp., the company from which Allen claimed to have purchased the checks, and should have subpoenaed Allen’s bank records or a representative from Allen’s bank to testify at trial. Allen has not proven that counsel’s performance was professionally deficient.

To prove such an ineffective assistance claim, an appellant must prove both that his counsel’s performance was professionally deficient and that, but for the unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland v. Washington , 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 LE2d [L.Ed.2d] 674 (1984). We need not review both elements of this test if the appellant fails to prove one of them.

It is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics. And tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances. Moreover, a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.

Stripling v. State , 304 Ga. 131, 138 (3) (b), 816 S.E.2d 663 (2018) (citation and punctuation omitted).

Trial counsel testified at the motion for new trial hearing that Allen told him he had obtained the check from Deluxe Corp., which prints custom checks, and that he had written several checks from that checkbook that had cleared without a problem. Trial counsel testified that he asked Allen for documentation on Deluxe Corp., but Allen only provided a printed advertisement. Trial counsel testified that he searched the internet for information about Deluxe Corp. and tried to call the company, but he reached only an automated answering system.

Trial counsel asked Allen for copies of the checks from that checkbook that had cleared, but Allen never provided any. Further, according to counsel, Allen told him that he banked with Chase and he showed counsel Chase bank records. But the check written to the Ace Hardware was drawn on a BB&T account; Allen told counsel that he had never had a BB&T account. That was why counsel pursued the defense that he did—that the check given to Ace was the result of a printing mistake. In support of that defense, on cross-examination, trial counsel got an investigator to admit that customers can buy checks from third-party vendors, that they can customize their own checks, and that sometimes checks contain printing errors.

At the hearing on the motion for new trial, Allen did not introduce any documents from Deluxe Corp. showing that he had ordered the checks. Nor did he introduce his banking records or any cancelled checks drawn from the same checkbook. Allen did not introduce the testimony of any representative of Chase that similar checks had cleared his account. He introduced no evidence that he contends trial counsel should have found and introduced.

"Under these circumstances, considered without the distorting effects of hindsight, trial counsel’s decision[s were] not patently unreasonable, and [Allen’s] ineffective assistance claim therefore fails." Stripling , 304 Ga. at 139 (3) (b), 816 S.E.2d 663.

3. Hearsay .

Allen argues that the trial court erred by finding that certain testimony fell within the market-reports-and-commercial-publications exception to the hearsay rule. Under that exception, "[m]arket quotations, tabulations, lists, directories, or other published compilations generally used and relied upon by the public or by persons in the witness’s particular occupation" are not excluded by the hearsay rule. OCGA § 24-8-803 (17).

Specifically, Allen objects to an investigator’s testimony that he ran the routing number printed on the check through an American Bankers Association website to verify the routing number’s validity. Allen argues that the hearsay exception does not apply because the investigator never testified that the website was relied upon by the banking industry or the police. See United States v. Masferrer , 514 F.3d 1158, 1162 (II) (C) (i) (11th Cir. 2008) (data from Bloomberg Financial Service was admissible under Fed. Rule Evid. 803 (17)...