Mathis v. State

• Decision Date: 19 October 2017
• Docket Number: A17A0858
• Citation: 343 Ga.App. 206,807 S.E.2d 4
• Parties: MATHIS v. The STATE.
• Court: Georgia Court of Appeals

343 Ga.App. 206

807 S.E.2d 4

MATHIS

v.The STATE.

A17A0858

Court of Appeals of Georgia.

October 19, 2017

Kevin Alan Anderson, for Appellant.

Leigh Ellen Patterson, Dist. Atty., Rome, Luke Anthony Martin, Asst. Dist. Atty., for Appellee.

Self, Judge.

Following a jury trial, the Superior Court of Floyd County entered judgments of conviction against Christopher Mathis on 52 counts related to Mathis' theft of more than $600,000 as the operator of a Ponzi scheme.¹

With the exception of correcting three of Mathis' sentences, the trial court denied Mathis' motion for new trial as amended and Mathis appeals. Mathis now contends that the trial court erred in a portion of its jury instruction and that it failed to merge his convictions for theft by conversion and theft by deception into his convictions for theft by taking. Because we conclude the trial court failed to merge Mathis' convictions for theft by taking, we vacate those convictions and remand to the trial court for resentencing. We find no additional error, and therefore affirm Mathis' remaining convictions.

Viewed in the light most favorable to the verdict, the evidence revealed that Mathis served as the elected chief magistrate of Floyd County. Mathis also owned a cattle farm. At various times throughout 2008 and 2009, Mathis approached at least 13 potential investors to solicit funds for an investment in cattle. According to the victims, most of whom had known Mathis for a substantial length of time, Mathis proposed purchasing the cattle and maintaining them on his farm, breeding them, and then selling them for a profit, splitting the profit with the victims. Collectively, the victims gave Mathis in excess of $898,000. With limited exceptions,² Mathis failed to repay the victims any of the money they invested or any return on their investment. On several occasions, Mathis gave a check to a victim representing the victim's original investment and their profit; however, those checks were dishonored upon presentment for insufficient funds. Of the 13 victims, 5 were over the age of 65. Mathis' scheme began to unravel when one of the victims received a bad check for $61,000 from Mathis and reported the check to the Rome Judicial Circuit District Attorney's Office. Local authorities contacted the Georgia Bureau of Investigation, which investigated and detailed Mathis' scheme.

1. Mathis first contends that the trial court erred by instructing the jury that it "may, if you choose, review the details of each charge" of the indictment during deliberations. According to Mathis, the trial court's instruction essentially told the jury it was not necessary to read the indictment, which was particularly harmful given the sheer size and technical nature of the indictment. However, in view of the jury charge in its entirety, we find no reversible error.

After the trial court administered the oath to the venire panel, but before jury selection, the trial court read the 52-count indictment in its entirety to the panel. Thereafter, in administering the oath to the jurors selected for trial, the trial court noted that Mathis was

charged with four counts of deposit account fraud, 13 counts of theft by taking, 13 counts of theft by conversions, 14 counts of theft by deception, five counts of exploitation of [an] elder person, one count of forgery in the first degree, one count of damaging, destroying and secreting property to defraud another and one count of violation of oath of public office for a total of 52 counts....

Following the charge conference, the trial court noted that the parties agreed "the Court could summarize the indictment in the same fashion it did when it administered the oath to the jury." As a result, the trial court charged the jury that Mathis was charged with

52 offenses consisting of 4 counts of deposit account fraud, 12 counts of theft by taking, 13 counts of theft by conversion, 14 counts of theft by deception, 5 counts of exploitation of an elder person, one count of forgery in the first degree, one count of damaging, destroying and secreting property and one count of violation of oath of public office.

The trial court further instructed the jury that "[y]ou will have the indictment out with you in the jury room during the deliberations, at which time you may, if you choose, review the details of each charge." Trial counsel did not object to the trial court's instruction at the close of its charge. Mathis now contends that the trial court's instruction to the jury that it "may, if you choose, review the details of each charge" is error.

As a threshold matter, because Mathis failed to raise this argument as a "specific objection and the grounds for such objection before the jury [retired] to deliberate," OCGA § 17-8-58 (a), the argument has been waived. See OCGA § 17-8-58 (b). Nonetheless, we are required to evaluate the allegedly erroneous jury instruction for plain error. See OCGA § 17-8-58 (b) ; State v. Kelly, 290 Ga. 29, 32-33 (2) (a), 718 S.E.2d 232 (2011) ; Reyes v. State, 322 Ga. App. 496, 501 (4), 745 S.E.2d 738 (2013). When analyzing jury instructions for plain error, we consider four prongs:

First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Emphasis in original.)

Reyes, 322 Ga. App. at 501 (4), 745 S.E.2d 738 (citing Kelly, 290 Ga. at 33 (2) (a), 718 S.E.2d 232 ). "Stated more succinctly, the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings." (Citation and punctuation omitted.) Alvelo v. State, 290 Ga. 609, 615 (5), 724 S.E.2d 377 (2012). To that end, "[j]ury instructions must be read and considered as a whole in determining whether the charge contained error." (Citations and punctuation omitted.) Reyes, 322 Ga. App. at 501 (4), 745 S.E.2d 738.

Pretermitting the remaining prongs of the plain error analysis, we conclude that Mathis cannot demonstrate the third prong: that an error in the trial court's charge "affected the outcome of the trial court proceedings." (Citation and punctuation omitted.) Reyes, 322 Ga. App. at 501 (4), 745 S.E.2d 738. See also Henderson v. State, 320 Ga. App. 553, 562 (8), 740 S.E.2d 280 (2013) ("[P]retermitting whether the first, second, or fourth prongs were satisfied, Henderson failed to satisfy the third."). Upon review of the instructions as a whole, the trial court recited the charges against Mathis and properly instructed the jury on the presumption of innocence, that no conviction could result "unless and until each element of the crime is proven to you beyond a reasonable doubt," that the State bore the burden "to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt," and that the burden of proof never shifts to the defendant. See, e.g., id.

In addition, the trial court's instruction comports with the relevant pattern jury instructions for the offenses charged. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed. 2007), §§ 2.64.20, 2.64.60, 2.64.90. Moreover, the trial court emphasized the importance of the indictment by stating that

if after considering the testimony and evidence presented to you together with the charge of the Court you should find and believe beyond a reasonable doubt that the defendant ... did ... commit the offenses as alleged in the indictment, you would be authorized as to each of said counts to find the defendant guilty.

(Emphasis supplied.) Similarly, the verdict form set out each count of the indictment separately. Finally, the indictment was provided to the jury during deliberations, and the verdict form prepared for the jury contained only those charges included in the indictment.

In conclusion, while the trial court's statement to the jury that it "may, if you choose, review the details of each charge" is imprecise and should be avoided, we conclude that Mathis has failed to demonstrate that the statement "affected the outcome of the trial court proceedings." See Reyes, 322 Ga. App. at 501 (4), 745 S.E.2d 738. Accordingly, when viewed in its entirety, we find there is no plain error in the trial court's charge. See Kelly, 290 Ga. at 32-33 (2) (a), 718 S.E.2d 232 ; Reyes, 322 Ga. App. at 501 (4), 745 S.E.2d 738.

2. Second, Mathis contends the trial court erred in failing to merge his convictions for theft by conversion and theft by deception into his convictions for theft by taking because "even if [each allegation of theft] involve[s] different elements, they were convictions from taking the same money from the same victim." While we agree that certain of Mathis' convictions should have merged for sentencing, we do not agree that theft by conversion and theft by deception merge into theft by taking.

"Whether two offenses should be merged is a question of law, and we apply a ‘plain legal error’ standard of review." Lavigne v. State, 299 Ga. App. 712, 714 (2), 683 S.E.2d 656 (2009). OCGA § 16-1-7 (a) provides that

When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if:

(1) One crime is included in the other; or

(2) The crimes differ only in that one is defined to prohibit a designated kind of conduct

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