Martinez v. State

• Court: Georgia Court of Appeals
• Writing for the Court: DILLARD, Judge.
• Citation: Martinez v. State, 750 S.E.2d 504, 325 Ga. App. 267 (Ga. App. 2013)
• Decision Date: 21 November 2013
• Docket Number: No. A13A1445.,A13A1445.
• Parties: MARTINEZ v. The STATE.

325 Ga.App. 267

750 S.E.2d 504

MARTINEZ

v.The STATE.

No. A13A1445.

Court of Appeals of Georgia.

Nov. 21, 2013.

Reconsideration Denied Dec. 5, 2013.

Certiorari Denied June 2, 2014.

Gerard Bradley Kleinrock, for Appellant.

Robert D. James, Jr., Dist. Atty., Deborah D. Wellborn, Asst. Dist. Atty., for Appellee.

DILLARD, Judge.

Following a jury trial, Rodolfo Lara Martinez was convicted of five counts of forgery in the first degree and two counts of identity fraud. Martinez's conviction on one of the two counts of identity fraud was later reversed by the trial court in its order on a motion for new trial. On appeal, Martinez contends that, as to the forgery counts, the indictment fatally varied from the proof at trial. He also claims that the evidence was insufficient to support his remaining conviction for identity fraud, and that the trial court expressed an improper opinion as to what had been proven at the trial. We agree with Martinez that in August 2007, the fraudulent possession and use of the identifying information of corporations did not fall within the ambit of Georgia's identity-fraud statute, and so we reverse his conviction on that count. Martinez's other claims, however, are without merit, and so we affirm his convictions for forgery in the first degree.

Viewed in a light most favorable to the jury's verdict,¹ the evidence shows that on August 14, 2007, Martinez attempted to cash a check at Tower Package Store. The check, dated August 10, 2007, purported to be a payroll check issued by Labor Staffing, Inc., and payable to Martinez in the amount of $139.36. The cashier followed the store's usual practice by attempting to access Martinez's information on her computer, but instead she received instructions to immediately contact store security. The security officer determined that, according to the computer-generated information, the check was fraudulent, and so he detained Martinez and notified the DeKalb County Police.

When the responding detective arrived, the security officer gave him copies of four checks that had been previously cashed at the store by Martinez, but that had been returned by the bank as counterfeit. And after the detective arrested Martinez and read him his Miranda² rights, Martinez claimed that he was "paid that money for doing construction work." But when the detective offered to drive Martinez to any location where he performed work in order to confirm his story, Martinez was unable to remember any work location or name, address, or telephone number associated with his alleged employers.

At trial, the evidence showed that Martinez previously cashed four checks at the Tower Package Store dated May 25, May 26, May 29, and June 2, 2007, in the amounts of $98.76, $97.86, $148.61, and $146.64, respectively. All four checks purported to be payroll checks issued by Staff Zone, Inc. But according to Staff Zone's manager, the company did not issue any payroll checks to Martinez. The manager also examined photocopies of the checks purported to have been issued by Staff Zone and testified that they were not, in fact, company checks. And as to the check purported to have been issued by Labor Staffing, Inc., and which Martinez attempted to cash at Tower Package Store on August 14, 2007, Labor Staffing's employee in charge of accounting and payroll testified that it was not an authentic corporate check and that the real check bearing the same check number had already been issued by the company to another person in a different amount.

Ultimately, the jury found Martinez guilty of two counts of identity fraud and five counts of first-degree forgery. Martinez moved for a new trial, and the trial court found that the evidence was insufficient to sustain Martinez's conviction on one of the two counts of identity fraud. Martinez's motion for new trial was otherwise denied, and this appeal follows.

1. Martinez contends that the evidence was insufficient to support his forgery convictions. His arguments, however, are based on an alleged variance between the indictment and the proof presented by the State at trial. But setting aside the question of whether Martinez waived his fatal-variance claims by failing to raise them in a timely fashion below,³ they are nonetheless without merit.

(a) As to the four counts of forgery in the first degree corresponding to the four checks purportedly issued by Staff Zone, Martinez contends that the State failed to prove these crimes because the indictment alleged, but the evidence failed to show, that these checks were actually drawn on Staff Zone's account. We disagree with Martinez that there was a variance between the indictment and the proof presented by the State at trial.

At the outset, we note that a person commits the crime of first-degree forgery if "with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing 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 and utters or delivers such writing."⁴ And in four separate counts, the indictment alleged that Martinez possessed with intent to defraud, and that he uttered and delivered, four checks payable to himself, specifically identified by number, date, amount, and as also "drawn on Wachovia Bank, N.A. on the account of Staff Zone Inc."⁵ But according to Staff Zone's manager, the account number on the checks presented by Martinez was not Staff Zone's actual account number with Wachovia. As such, Martinez argues that the evidence showed that the checks were not drawn on Staff Zone's account, whereas the indictment charged him with uttering checks that were actually drawn on Staff Zone's account.

In considering Martinez's argument, our analysis necessarily begins with the general rule that "[i]f the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance."⁶ But in applying the fatal-variance rule, we must be ever mindful that Georgia no longer employs "an overly technical application of the ... rule, focusing instead on materiality."⁷ And the rule that allegations and proof must correspond is based upon the obvious requirements "(1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense."⁸ Thus, a variance is not fatal if the accused is "definitely informed as to the charges against him and is protected against another prosecution for the same offense."⁹

And here, the four checks at issue appear on their face to be drawn on Staff Zone's account at Wachovia. That the checking account number printed on the checks was not the correct account number was one of several ways in which Staff Zone's manager identified the checks as not being authentic company checks. Moreover, the logo and signatures on actual Staff Zone checks differed from those on the forged checks. But the indictment did not allege that the four checks contained Staff Zone's correct banking account number. Accordingly, we discern no actual, much less fatal, variance between the indictment and the evidence. Furthermore, the indictment—which also identifies each check by number, date, and amount—sufficiently apprised Martinez of what writings he was accused of forging,¹⁰ and he is protected from further prosecution for these offenses because, inter alia, copies of all the checks referenced in the indictment were introduced into evidence.¹¹ For the foregoing reasons, as to these four counts, we "reject any fatal variance claim and hold the evidence was sufficient"¹² for a rational trier of fact to find Martinez guilty beyond a reasonable doubt of forgery in the first degree.¹³

(b) Martinez also contends that the evidence was insufficient to establish that he was guilty of forgery in the first degree with respect to the check purportedly drawn on the account of Labor Staffing. The indictment alleged, in pertinent part, that Martinez knowingly possessed with intent to defraud, and did utter and deliver, "a check, being No. 94369 dated 8/13/2007, in the amount of $139.36 payable to [Martinez] drawn on SunTrust Bank on the account of Labor Staffing Inc." The check adduced at trial was dated August 10, 2007, not August 13, 2007, as alleged. But notwithstanding the indictment's error, the other information identifying the forged check, including the check number, dollar amount, and the designated payee, drawee bank, and account holder, was sufficient to apprise Martinez of the charge against him.¹⁴ Nor does Martinez face further prosecution for the same offense.¹⁵ Accordingly, we find no fatal variance here either. Additionally, as to this count, we conclude that a rational trier of fact could find that Martinez was guilty beyond a reasonable doubt of forgery in the first degree.¹⁶

2. In three claims of error, Martinez asserts that the crime of identity fraud, as applicable to the August 2007 incident at issue, protected only the identifying information of natural persons and not corporations. And here, Martinez was convicted of identity fraud for obtaining the bank account number of the corporate victim, Labor Staffing, Inc.¹⁷ Thus, Martinez contends that the evidence was necessarily insufficient to show that he violated OCGA § 16–9–121 (2007), as then applicable. He further asserts that his trial counsel, not realizing that OCGA § 16–9–121 (2007) did not apply to corporate victims, was ineffective in failing (i) to object to the trial court's instruction to the jury as to the elements of identity fraud, and (ii) by not filing a dispositive demurrer or motion in arrest of judgment. In contrast, the State argues that a corporation could be a victim of identity fraud under the 2007 version of the statute...