McMillan v. State

• Decision Date: 11 March 2004
• Docket Number: No. A03A2202.,A03A2202.
• Parties: McMILLAN v. The STATE.
• Court: Georgia Court of Appeals

266 Ga. App. 729

598 S.E.2d 17

266 Ga.App. 729

McMILLAN v. The STATE.

No. A03A2202.

Court of Appeals of Georgia.

March 11, 2004.

Reconsideration Dismissed April 2, 2004.

Rodney A. Williams, Decatur, for appellant.

Anthony McMillan, pro se.

Jeffrey H. Brickman, Dist. Atty., Rosemary W. Brewer, Asst. Dist. Atty., for appellee.

ANDREWS, Presiding Judge.

Anthony McMillan appeals from the trial court's denial of his amended motion for new trial following his conviction by a jury of violating the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, OCGA § 16-14-1 et seq. (Counts 1 and 2), misdemeanor theft by taking (Count 4), forgery (Count 9), false statements (Counts 28 and 30), and practicing dentistry without a license (Counts 22, 25, and 27).¹ 1. In his fourth enumeration, McMillan challenges the legal sufficiency of the evidence as to Counts 4 (theft by taking), 25 and 27 (practicing dentistry without a license), and 28 and 30 (false statements), and we consider this enumeration first.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations omitted.) Walker v. State, 258 Ga.App. 333, 574 S.E.2d 400 (2002).

So viewed, the evidence was that McMillan met Helen Jackson in New York in 1995. He introduced himself to her as a dentist, telling Jackson he had a practice in Atlanta. Jackson and McMillan began dating and, eventually, McMillan asked Jackson to loan him money to begin a business venture, making dental crowns to be exported to France. Jackson loaned him $6,000 for this purpose. In 1997, Jackson formed a corporation called The Helmac Group, Inc., which was to be used for McMillan's dental practice. Jackson was not a dentist, but a school administrator. It was agreed that the money made from the dental practice was to be paid to Helmac. Jackson traveled back and forth between her home in New Jersey and Georgia and assisted with the financial and managerial duties of Helmac from 1997 until she quit participating in 1998. Jackson found out McMillan was not a dentist in October or November 1998. She had observed him performing dental work on patient Linda Nichols in 1997. Jackson was never repaid her $6,000.

Jackson became aware that a number of checks written by McMillan on the Helmac account were being returned for insufficient funds. By looking at bank statements, Jackson found that money intended for Helmac was going into McMillan's personal account. On several occasions, Jackson saw McMillan performing dental work on patients.

In March 1995, Mark O'Laughlin, owner of Quality First Dental Lab, went to McMillan's office to solicit work for his lab. McMillan told him he was a dentist and showed O'Laughlin around his office. They discussed pricing and O'Laughlin began doing work for McMillan on partial dental frameworks. McMillan became delinquent in paying O'Laughlin and O'Laughlin filed suit against him. In response, McMillan filed an answer signed "Anthony McMillan, D.D.S."

In May 1998, Dr. Susan Savage, a medical doctor, met McMillan at a health fair. McMillan introduced himself to her as Dr. McMillan, a dentist. They eventually became acquaintances and McMillan proposed that they form a dental/medical business together. He told her that he would need no money from her because he had $10 million from various investors. That money, however, did not materialize and Dr. Savage agreed to put money into starting the business. Although McMillan had told Dr. Savage that the corporation would be in both names, when she saw the corporate documents for Family Medical & Dental Centers of America, P.C., they were in her name only. Dr. Savage also saw McMillan perform dental work on a patient.

Dr. Savage became aware that the corporate bank account had insufficient funds to cover an outstanding check. Because she knew that $6,000 had been received by Family Medical & Dental Centers that day, Dr. Savage contacted the person responsible for making the deposit and found out that money had been deposited into McMillan's personal account. McMillan had been endorsing checks payable to Dr. Savage's company and depositing them into an account on which he was the sole signatory. Dr. Savage was told by McMillan's sister that he did not have a dental license.

Hae Kim, responding to an ad in a Korean newspaper, went to Dental Age, the name of the clinic prior to Dr. Savage's becoming involved with McMillan, from 1995 to 1998. Even when other dentists worked on her, if a problem developed, McMillan was summoned for his advice. On one occasion, due to difficulty removing a temporary appliance from her mouth, McMillan took what she described as a "hammer" and attempted to remove it.

(a) Count 4 alleged that, between November 29, 1996, and March 31, 1999, McMillan "did unlawfully take currency with a value of greater than Five Hundred Dollars ($500.00) and being the property of The Helmac Group, Inc., with the intention of depriving said owner...." McMillan was convicted of misdemeanor theft by taking, i.e., taking currency worth less than $500.

Citing no authority, McMillan argues that the evidence was legally insufficient because the evidence was circumstantial since no auditing of McMillan's personal account and the Helmac account was done and some money from McMillan's account was used to pay some Helmac expenses.

OCGA § 16-8-2 requires the State to show the unlawful taking of property of another with the intention of withholding the property without justification permanently or temporarily.

To support a verdict, circumstantial evidence need exclude only reasonable hypotheses, not exclude every inference or hypothesis except that of a defendant's guilt and whether circumstances are sufficient for that purpose was a question for the jury which, here, resolved the conflicts against McMillan. Smith v. State, 257 Ga. 381, 382, 359 S.E.2d 662 (1987); Tweedell v. State, 248 Ga.App. 187, 189, 546 S.E.2d 306 (2001); Brown v. State, 245 Ga.App. 706, 709(1), 538 S.E.2d 788 (2000).

The evidence here of theft by taking from Helmac was legally sufficient. Leary v. State, 256 Ga.App. 639, 640(1), 569 S.E.2d 593 (2002); Jordan v. State, 242 Ga.App. 547, 549(1)(b), 528 S.E.2d 858 (2000).

(b) Count 25 charged McMillan with practicing dentistry without a license by, between May 1, 1999, and November 1, 1999, "hold[ing] himself out to the public and Susan Savage, as a person entitled to practice dentistry by identifying himself as Doctor of Dental Surgery...."

McMillan contends the evidence was insufficient because, he argues, Dr. Savage knew he was not licensed when they began their business together in May 1999. Dr. Savage's testimony on this point, however, was not as clear cut as presented by McMillan. She testified that she did not know he was not educated as a dentist until she spoke to McMillan's sister in England in late 1999. McMillan did not tell her he was not licensed until August 1999. Dr. Savage hired him as a consulting dentist, not to do work on patients because she knew he had not renewed his license, indicating that she previously believed he was licensed.

Any conflicts in Dr. Savage's testimony were for the jury to resolve and they resolved them against McMillan. OCGA § 24-9-80; Jones v. State, 258 Ga.App. 852, 854, 576 S.E.2d 18 (2002); Ramsey v. State, 214 Ga.App. 743, 744(1), 448 S.E.2d 790 (1994).

(c) McMillan also challenges his convictions on Counts 27, 28, and 30, which charged him as follows:

Count 27 — with practicing dentistry without a license by, between October 19, 1995, and February 5, 1996, "unlawfully hold[ing] himself out to the public and the State and Magistrate Courts of DeKalb County, Case Nos. 95A15886 and 95M45012, as a person entitled to practice dentistry by identifying himself as Doctor of Dental Surgery (DDS) and `Dr.', when he is not licensed to practice dentistry in the State of Georgia";

Count 28 — with false statements and writings by, between October 19, 1995, and February 5, 1996, "mak[ing] a false document, knowing the same to contain a false, fictitious and fraudulent statement in a matter within the jurisdiction of DeKalb County, Georgia, to-wit: DeKalb County Magistrate Court and DeKalb County State Court, by filing a document identifying himself as Doctor of Dental Surgery (DDS) and `Dr.', when he is not licensed to practice dentistry in the State of Georgia"; and

Count 30 — with false statements and writings by, on May 22, 1998, making "a false document, knowing the same to contain a false, fictitious and fraudulent statement in a matter within the jurisdiction of DeKalb County, Georgia, ... by filing a document identifying himself as a dentist by use of the words `Dental Age' and `Dr.', when he is not licensed to practice dentistry in the State of Georgia."²

These charges all related to documents filed with the magistrate and state courts in litigation filed against McMillan by Quality First Dental Lab, Inc. (Counts 27 and 28) and initiated by Dental Age, McMillan's company, against a former patient (Count 30). McMillan contends there was no evidence that identified him as the person named in the documents.

As to Counts 27 and 28, O'Laughlin, owner of Quality First Dental Lab, testified that he visited dentists' offices to solicit business for his lab. He met and visited with McMillan at his Dental Age office where McMillan represented himself as a dentist. O'Laughlin made partial dentures for McMillan's clients from March through August 1995. Because he was not fully paid, O'Laughlin filed suit in magistrate court against...