Kohlhaas v. State

• Decision Date: 08 March 2007
• Docket Number: No. A06A2038.,A06A2038.
• Citation: 643 S.E.2d 350,284 Ga. App. 79
• Parties: KOHLHAAS v. The STATE.
• Court: Georgia Court of Appeals

284 Ga. App. 79

643 S.E.2d 350

KOHLHAAS v. The STATE.

No. A06A2038.

Court of Appeals of Georgia.

March 8, 2007.

Richard H. Kimberly, Jr., Atlanta, for appellant.

Patrick H. Head, District Attorney, Amy H. McChesney, Assistant District Attorney, for appellee.

ELLINGTON, Judge.

A Cobb County jury found Kimberlie Kohlhaas guilty beyond a reasonable doubt of six counts of felony theft by taking, OCGA § 16-8-2, and six counts of felony theft by conversion, OCGA § 16-8-4(a). Kohlhaas appeals from the denial of her motion for new trial, contending that the trial court erred in rejecting her claim that she received ineffective assistance of counsel, in admitting certain evidence and excluding other evidence, and in sustaining her convictions when the State's theory of conviction on the conversion charges "fail[ed] to state a claim as a matter of law." Finding no error, we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the record shows the following relevant facts. Nossi Taheri is the president of The Bag Company, a company that manufactures and imports ziplock bags. In 1999, Taheri hired Kohlhaas, an experienced accountant, as the company's accounting manager. Unbeknownst to Taheri, Kohlhaas had twice embezzled money from former employers, acts that resulted in two felony theft convictions.²

From 1999 until May 2002, Kohlhaas diverted over $100,000 of The Bag Company's funds to her personal use. Kohlhaas accomplished this by depositing payments to the company into a petty cash bank account over which she had complete control, instead of depositing the payments into the company's primary bank account as she was supposed to do. Kohlhaas also overpaid the company's bills from the primary account and, when the company received a refund check, she deposited the refund into the petty cash account. Kohlhaas admitted that she was the only one who ever wrote checks on the petty cash account. She also admitted that she withdrew cash from the account and wrote checks on it to pay for her personal expenses. In addition, she used a company credit card to purchase personal items, and paid the credit card bill from the petty cash account. The State presented evidence of at least 12 separate acts of theft by taking or theft by conversion committed by Kohlhaas during her employment.

Kohlhaas does not deny that she deposited checks in the petty cash account instead of the primary account, that "she wrote and cashed Bag Company checks from the petty cash account into her own personal account and/or for her personal benefit," and that "she paid her personal credit card bills with funds from the petty cash account." Her defense at trial, however, was that she did these acts with the knowledge, permission, and assistance of Taheri and that Taheri had the motive to lie at trial about his approval of these expenditures. Kohlhaas also claimed that Taheri pursued the theft claims against her to retaliate against her because she had cooperated in an Internal Revenue Service(IRS)investigation of Taheri for tax evasion and because he needed a "scapegoat" to draw the IRS's attention away from his allegedly illegal transactions.

1. On appeal, Kohlhaas complains that the trial court erred in granting the State's motion in limine to exclude evidence concerning the IRS investigation of Taheri and The Bag Company. Kohlhaas argues that the evidence was relevant to show Taheri's motive in pursuing the theft claims against her, to show Taheri's course of conduct and bent of mind in allegedly mishandling his company's funds, and to attack the bias and veracity of Taheri and other witnesses.

According to the State's motion in limine, Kohlhaas was a confidential informant who surreptitiously gave financial records from The Bag Company to the IRS. Based upon information provided by Kohlhaas, the IRS obtained and executed a search warrant to search the company and Taheri's home. Documents, computers, and other items obtained during the search were later returned to Taheri and the company after the IRS "dropped" the investigation. The State argued that the details of the IRS investigation should be excluded from Kohlhaas' trial because they were not relevant to Kohlhaas' guilt or innocence of the crimes charged. The motion recognized, however, that the "fact the IRS investigated [The Bag Company] and that [Taheri] believes that Kim Kohlhaas was an informant is relevant because it can be used to show that the witnesses have a reason to lie. It may affect the victim's veracity or bias." Even so, the State argued that the "details of the IRS investigation other than that the victims think Kim Kohlhaas was an IRS snitch are irrelevant and do not show any additional reasons to question the bias or veracity of the victim." Further, the State argued the IRS investigator should be prohibited from testifying about the substance of the investigation under federal law prohibiting current and former federal officers or employees from disclosing information obtained during their service as officers or employees.

Following a motion hearing, the court ruled that the fact that there was an IRS investigation of Taheri and The Bag Company was admissible, but the substance of the investigation, i.e., whether Taheri evaded taxes, was irrelevant to the issue of whether Kohlhaas embezzled company funds as charged in the indictment. Specifically, the court ruled that "[t]he fact that Ms. Kohlhaas was involved in [the investigation] is admissible. What the investigation went to is not admissible." Upon hearing this ruling, Kohlhaas' counsel responded, "Absolutely." Counsel also stated that he did not intend to present evidence about the investigation itself, but just evidence showing that there had been conversations between Kohlhaas and the IRS investigator concerning Taheri. Counsel reiterated that he was not going to ask the IRS investigator, "What did you find [during the investigation]?"

Under these circumstances, the record shows that trial counsel acquiesced in the court's decision to exclude evidence of the substance of the IRS investigation. "No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further." (Citation omitted.) Payne v. State, 273 Ga.App. 483, 485-486(3), 615 S.E.2d 564 (2005). Accordingly, this issue has been waived. Id.

2. Kohlhaas contends she received ineffective assistance of counsel at trial.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. [As the appellate court, we] accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76, 586 S.E.2d 313 (2003). "As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel." (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365(4), 541 S.E.2d 369 (2001).

(a) Kohlhaas contends trial counsel was ineffective for failing to introduce several documents at trial. At the motion for new trial hearing, appellate counsel tendered (or attempted to tender) these documents, which he enumerated as Defense Exhibits 2 through 17. This ineffectiveness claim fails for the following reasons.

First, as trial counsel acknowledged during the hearing, the charges against Kohlhaas involved only the management of the company's petty cash account, specifically, who had deposited money into and withdrawn money from that account. The record shows that none of the documents that Kohlhaas claims her counsel should have tendered at trial had the petty cash account number on them or referred in any way to the petty cash account.

Second, during the hearing, trial counsel testified that he did not tender Defense Exhibits 2, 3, 4, 5, 6, 8, 9, 12, 13, 14, 15, and 16 as a matter of trial strategy because the documents were irrelevant, they involved undisputed issues at trial, they were inadmissible under prior rulings of the court, and/or they were not helpful to or would undermine the defense. Such reasonable strategic decisions by counsel do not constitute ineffective assistance. Grier v. State, 273 Ga. at 365(4), 541 S.E.2d 369.

Third, Defense Exhibit 7 was, in fact, admitted at trial as part of another exhibit. Kohlhaas has failed to show why counsel was deficient for failing to tender this document separately or how she was harmed thereby.

Finally, as for the remaining documents, the record shows that Defense Exhibit 10 was an unauthenticated e-mail from Taheri to Kohlhaas concerning several large company checks but which makes no reference to the petty cash account. The trial court refused to admit Defense Exhibit 11 during the hearing to prove ineffective assistance because there was no evidence that counsel had ever seen the document prior to or during trial. Similarly, the court also refused to admit Defense Exhibit 17 to prove ineffective assistance, because the document was irrelevant and was not properly authenticated, and counsel did not receive it until after trial.

Under the circumstances, the record supports the trial court's finding that counsel's failure to tender these documents at trial did not constitute ineffective assistance....