Jannuzzo v. State

• Decision Date: 09 July 2013
• Docket Number: No. A13A0683.,A13A0683.
• Citation: 322 Ga.App. 760,746 S.E.2d 238
• Parties: JANNUZZO v. The STATE.
• Court: Georgia Court of Appeals

322 Ga.App. 760

746 S.E.2d 238

JANNUZZO

v.The STATE.

No. A13A0683.

Court of Appeals of Georgia.

July 9, 2013.

John Da Grosa Smith, Atlanta, for Appellant.

Patrick H. Head, Amelia Greeson Pray, D. Victor Reynolds, Marietta, John C. Butters, for Appellee.

ANDREWS, Presiding Judge.

Paul Jannuzzo was found guilty by a jury of one count of theft by conversion in violation of OCGA § 16–8–4, and one count of violation of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act in violation of OCGA § 16–14–1 et seq. Among other claims, Jannuzzo asserts that the State failed to carry its burden to prove that the charges were brought within the applicable statutes of limitation. Because we find that the State failed to carry this burden on either count of the indictment, we reverse both convictions.

The indictment was filed on June 12, 2009, and alleged in the RICO count that, while Jannuzzo was general counsel for Glock, Inc., he acted in violation of OCGA § 16–14–4(a) and (c) by unlawfully conspiring with another Glock employee, Peter Manown, to engage in a pattern of racketeering activity by which they unlawfully acquired and maintained, directly and indirectly, interest in and control of personal property, including money, belonging to Glock, Inc., its founder, Gaston Glock, and companies associated with Glock, Inc. The indictment alleged that there was a pattern of racketeering activity by theft and conversion of property, including money, by use of clone bank accounts and forged documents; that this activity occurred between August 28, 1991 and August 26, 2007; and that it consisted of various predicate offenses under OCGA § 16–14–3(9)(A) as follows:

(1) that between February 12, 1999, and August 26, 2007, Jannuzzo committed theft by conversion of a LaFrance Specialties pistol owned by Glock, Inc. valued in excess of $500; (2) that while employed by Glock, Jannuzzo (in concert with Manown) unlawfully obtained $177,000, belonging to Glock, Inc., by fraudulent insurance billings; (3) that in or about April 1997, Jannuzzo (in concert with Manown) unlawfully obtained $98,633.80, belonging to Glock, Inc., Gaston Glock or associated companies, by use of a cloned account; (4) that on or about January 11, 2002, Jannuzzo (in concert with Manown) fraudulently created a fictitious document to facilitate an unapproved loan guarantee by a Glock associated company of a $3,400,000 loan; (5) that on or about June 4, 1998, Jannuzzo (in concert with Manown) by use of forged documents unlawfully obtained an unapproved loan of $1,000,000 by Glock, Inc. or associated companies; (6) that on or about August 31, 2000, Jannuzzo unlawfully transferred $60,000, belonging to Glock, Inc. or associated companies, to his individual account in the Cayman Islands, and unlawfully kept $10,000 of these funds; (7) that in or about September 2001, Jannuzzo illegally converted $18,570.25, belonging to Glock, Inc. or associated companies, by transferring the funds to his Cayman Island account; (8) that in or about September 2001, Jannuzzo converted $16,000 belonging to Glock, Inc. or associated companies, by directing that those funds be used to pay his personal debt.¹

The theft by conversion count sets forth the same offense alleged in the RICO count as a predicate offense—that between February 12, 1999, and August 26, 2007, Jannuzzo committed theft by conversion of a LaFrance Specialties pistol owned by Glock, Inc. valued in excess of $500.

The trial court denied Jannuzzo's pre-trial plea in bar asserting that the applicable statutes of limitation barred prosecution on the theft by conversion and RICO counts. Nevertheless, at trial the burden remained on the State to prove that the charged offenses occurred within the applicable statutes of limitation, or, if an exception was alleged that would toll the running of the statute, to prove that the exception tolled the statute. Jenkins v. State, 278 Ga. 598, 604, n. 31, 604 S.E.2d 789 (2004); Merritt v. State, 254 Ga.App. 788, 789, 564 S.E.2d 3 (2002). “[C]riminal limitations statutes are to be liberally interpreted in favor of repose.” Sears v. State, 182 Ga.App. 480, 482, 356 S.E.2d 72 (1987) (punctuation and citation omitted), overruled on other grounds, Johnston v. State, 213 Ga.App. 579, 445 S.E.2d 566 (1994). The running of a statute of limitation for a criminal offense is ordinarily not interrupted unless an exception tolls its operation. Id. “[E]xceptions will not be implied to statutes of limitation for criminal offenses, and ... [a]ny exception to the limitation period must be construed narrowly and in a light most favorable to the accused.” Id. (punctuation and citations omitted); Womack v. State, 260 Ga. 21, 23, 389 S.E.2d 240 (1990).

1. As to the felony theft by conversion count, OCGA § 17–3–1(c) requires that prosecution for this offense “shall be commenced within four years after the commission of the crime....” In the present case, however, the State alleged in the indictment that, because the accused and the crime were unknown to the State, the four-year statute of limitation was tolled under the exception set forth in OCGA § 17–3–2(2). The exception set forth in OCGA § 17–3–2(2) provides that the limitation period is tolled while “[t]he person committing the crime is unknown or the crime is unknown.” Under this exception, the statute of limitation is tolled until the victim has actual knowledge of the crime—what the victim actually knew. State v. Campbell, 295 Ga.App. 856, 857, 673 S.E.2d 336 (2009); Beasley v. State, 244 Ga.App. 836, 837–838, 536 S.E.2d 825 (2000). Constructive knowledge—what the victim should have known—does not extinguish the tolling period. Campbell, 295 Ga.App. at 857, 673 S.E.2d 336. For purposes of this exception, the actual knowledge of the victim is imputed to the State. Id.;Womack v. State, 260 Ga. at 22, 389 S.E.2d 240 (knowledge of the victim is the knowledge of the State); State v. Lowman, 198 Ga.App. 8–9, 400 S.E.2d 373 (1990) (limitation period does not commence to run until the offense is known to the prosecutor or to the person injured by the offense). It follows that the four-year statute of limitation for the prosecution of this offense began to run on the date that the victim, Glock, Inc. (Glock), had actual knowledge of the offense. Because the indictment was filed on June 12, 2009, to prove that Jannuzzo was indicted for theft by conversion within the four-year limitation period, the State had the burden of producing evidence that Glock's first actual knowledge of the offense occurred within four years prior to that date-no earlier than June 13, 2005.

Under OCGA § 16–8–4, a person commits the offense of theft by conversion when he lawfully obtains property of another under an agreement or legal obligation to make a specified disposition of the property, and then knowingly converts the property to his own use in violation of the agreement or obligation.The indictment alleged that on February 12, 1999, while Glock employed Jannuzzo, Glock gave Jannuzzo temporary custody of a LaFrance pistol; that when Jannuzzo left employment with Glock on or about February 13, 2003, he did not return the pistol to Glock; that, after Jannuzzo left employment with Glock, he denied having possession of the pistol; and that, when Jannuzzo was later arrested on August 26, 2007, on an unrelated charge, the pistol was found in his possession. On these allegations,the indictment charged that Jannuzzo committed the offense of theft by conversion of the pistol between February 12, 1999, and August 26, 2007.

At trial, evidence showed that Glock owned guns made by Glock and other manufacturers, including the LaFrance pistol, and that Glock loaned or assigned these guns to various Glock employees to be used for business purposes for demonstration, display, and as sales samples. As required by federal Bureau of Alcohol, Tobacco and Firearm (ATF) regulation, Glock kept written records of the employees to whom the guns had been loaned showing when the gun was loaned and when the gun was returned. Glock's general counsel at the time of the trial, Carlos Guevara, testified that: “As far as Glock requirements to comply to ATF regulations, we have to account for every single pistol, firearm in our possession.” Guevara identified documents kept by Glock in compliance with ATF regulations which showed that the LaFrance pistol was purchased by Glock on August 20, 1997, loaned by Glock to Jannuzzo on November 3, 1997, returned by Jannuzzo to Glock on April 27, 1998, loaned by Glock to Jannuzzo on September 10, 1998, returned by Jannuzzo to Glock on September 15, 1998, and loaned by Glock to Jannuzzo on February 12, 1999. The Glock records showed that the pistol was not returned to Glock after it was loaned to Jannuzzo on February 12, 1999. Glock vice president of operations, James Mathis, part of whose job was to keep track of the loaned guns, testified that in 2001 he took an inventory of the non-Glock guns for the purpose of selling any that were no longer needed. Mathis identified the LaFrance pistol as one of the non-Glock guns, and spoke about the pistol to Jannuzzo, who told him that the pistol was not to be sold, “that one is mine.” Jannuzzo left his employment with Glock in February 2003. Glock's former general counsel, Kevin Connor, testified that, within a couple of weeks after Jannuzzo left his employment with Glock in February 2003, Jannuzzo called him, told him he had a number of guns in his possession, including the LaFrance pistol, and asked him to find out what the Glock records showed as to who had possession of those guns. Connor said that he told his superior at Glock, Robert Glock, about the conversation with Jannuzzo, and gave Mr. Glock a list of the guns that Jannuzzo said he had in his possession, including...