Pruitt v. State

• Decision Date: 05 March 2019
• Docket Number: A18A1687
• Parties: PRUITT v. The STATE.
• Court: Georgia Court of Appeals

349 Ga.App. 101

825 S.E.2d 490

PRUITT

v.The STATE.

A18A1687

Court of Appeals of Georgia.

March 5, 2019

Jessica Ruth Towne, Lawrenceville, for Appellant.

Penny Alane Penn, Dist. Atty., Ramsey Robertson Magaro, Asst. Dist. Atty., for Appellee.

Reese, Judge.

A jury found Kimberly McAfee Pruitt ("the Appellant") guilty of five counts of theft by deception.¹ Specifically, the Appellant received convictions for three counts of theft by deception against B. D., and two counts of theft by deception against S. L. The trial court sentenced the Appellant to serve twenty years, first seven years in confinement and the remaining years on probation. She appeals from the denial of her motion for new trial, arguing that the evidence was insufficient to support her convictions and that the trial court improperly excluded testimony and limited cross-examination of witnesses by defense counsel. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict,² the evidence shows that, in 2011 to 2012, the Appellant owned a business, McAfee & Associates, and worked as an "independent paralegal[ ]" for several attorneys, including Tony Axam.³ She often served as a "point of contact" between the attorneys and their clients and, as part of her duties, she accepted payments from the clients toward their legal fees. During the relevant time period, the Appellant allegedly obtained funds from two clients, B. D. and S. L., by falsely telling them that the funds were required for their legal representation or other expenses.

(a) The Appellant’s interactions with B. D.

Specifically, in August 2011, the Appellant met a 71-year-old woman, B. D., who was seeking an attorney to defend her son, C. D., who had been charged with, inter alia, possession of child pornography. The Appellant recommended Tony Axam, one of the attorneys for whom she was working.

In September 2011, B. D. signed a fee agreement for her son’s legal representation with Axam for $100,000, plus $25,000 for a computer forensic expert. After signing the fee agreement, B. D. wrote two checks to "McAfee & Associates[,]" one for $10,000 in September 2011 and the other for $15,000 in October 2011. B. D. gave the checks to the Appellant for the "forensic person." B. D. testified that she thought that McAfee & Associates was the "forensic person[,]" and that she did not realize that the Appellant’s name was listed on one of the invoices for McAfee & Associates or that the Appellant’s e-mail address was "KimMcAfeePruitt@live.com" until trial.

In September 2012, C. D. pled guilty to the child pornography charges. B. D. testified that, in September 2012, prior to her son entering a guilty plea, she wrote a check for $5,000 to the Appellant because the Appellant told her that Axam "needed [$5,000] more to work with the witnesses and interview and things like that," and B. D. believed her.

After learning of her son’s guilty plea, B. D. contacted Axam because she was "shocked" and unhappy that he charged her an additional $5,000 for her son’s defense. B. D. met with Axam who told her that he did not charge her another $5,000. After the meeting, she sent Axam a copy of the $5,000 check, but she did not receive a response from him. B. D. subsequently contacted the Forsyth County Sheriff’s Department to "report a crime[,]" and eventually spoke to a detective in the white collar unit.

According to Tammy Loehrs, an owner of a computer forensic company located in Arizona, she worked on C. D.’s child pornography case on behalf of Axam’s law firm, with the Appellant as her point of contact. Loehrs testified that, for the past 16 years, her usual retainer fee, in child pornography cases, was $7,500, which was the amount she charged in C. D.’s case. Loehrs received a $7,500 payment, plus $1,000 for additional work on the C. D. matter from the Appellant. Loehrs was not asked to prepare a report of her findings in C. D.’s case.

(b) The Appellant’s Interactions with S. L.

In 2010, the Appellant began working for attorney Romin Alavi.⁴ At the time, Alavi defended E. L., the husband of S. L., on a possession of child pornography charge. According to S. L., the Appellant worked as a "legal aide" for Alavi and served as the couple’s point of contact for Alavi’s firm. After E. L.’s 2012 trial, S. L. maintained contact with the Appellant. S. L. testified that the Appellant recommended Axam to handle E. L.’s appeal. The couple signed a contract with Axam, wrote a check for the $35,000 retainer fee, and gave it to the Appellant who was serving as Axam’s "contact" for E. L.’s appeal. S. L. testified that after paying the retainer fee, the Appellant told her "there was some research that [the Appellant] needed to do, ... that a new law had come out that might help [E. L.,] and that [Axam] wanted her to break it down. [The Appellant] said that it would take about 60 hours of work, and after that was done, it might help [E. L.’s] case." S. L. paid the Appellant for the work in two installments. She wrote a check to the Appellant for $1,000 in August 2012 so the Appellant would "look into it[.]" In September 2011, S. L. wrote the Appellant a second check for $2,000 because the Appellant told her that the research "looked really promising[.]" S. L. testified that she asked the Appellant more than once for a report of the Appellant’s legal research, but she never received it. A detective from the Forsyth County Sheriff’s Department contacted S. L. and interviewed her regarding the $1,000 and $2,000 checks for legal research that she wrote to the Appellant.

Axam testified on behalf of the State and denied requesting extra money from B. D. to represent C. D. He testified that, if additional funds were needed by him in a case, he "call[ed his client or the family member] directly and [amended] the contract." When questioned about expert witnesses, he testified that if he needed one, he charged the client extra. He understood that, in C. D.’s case, the forensic expert from Arizona cost $25,000 because he thought that the Appellant told him that fee and "according to the contract, [the $25,000 fee was] to go to the forensic specialist, not to [him]." Axam further testified that he did not think he authorized the Appellant to bill 60 hours of legal research to E. L.’s case and was not aware of a "new law" that might have helped E. L.’s appeal.

The Appellant testified at trial that she owned the business, McAfee & Associates. She averred that she worked as an "independent paralegal" for several attorneys. For C. D.’s case, the Appellant was paid a flat fee by Axam. She testified that, during her initial meeting with B. D., B. D. "knew [the Appellant] was McAfee & Associates, [and] that [the Appellant] actually subcontracted out, because [the Appellant] told [B. D.] that [the Appellant] worked for a few attorneys." She denied telling B. D. that the $25,000 fee was just for the forensic expert Loehrs, testifying that she told B. D. the "exam" of the computer would cost $7,500 and it would cost "$2,000 to $2,500 more" if Loehrs wrote a report. When questioned about the extra $5,000 she requested from B.D., the Appellant testified that a month before trial, "there was a large balance that was owed, ... [because the Appellant] had done a lot of extra work[.]" She testified that, if she had billed by the hour on C. D.’s case, she would have charged B. D. another $8,000.

With regard to S. L., the Appellant testified that she asked for $1,000 "[t]o start doing research[ ]" on sex offender registry laws. She further testified that she performed 12 to 13 hours of computer legal research on the matter. During cross-examination, the Appellant admitted that she deposited checks from S. L. for $1,000 and $2,000 into her personal account.

Following her convictions, the Appellant filed a motion for new trial. After a hearing, the trial court denied the Appellant’s motion. This appeal followed.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia .^{[5 ]} As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.⁶

With these guiding principles in mind, we turn now to the Appellant’s specific claims of error.

1. The Appellant argues that the evidence was insufficient to support her convictions on the five counts of theft by deception. We disagree.

Under OCGA § 16-8-3 (a), "[a] person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property." Further, under OCGA § 16-8-3 (b) (1), "[a] person deceives if he intentionally [c]reates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false[.]"⁷

The State charged the Appellant with three counts of committing theft by deception for obtaining checks from B. D. in the amounts of $10,000 (Count 1), $15,000 (Count 2), and $5,000 (Count 3).⁸ Regarding Counts 1 and 2, the evidence showed that B. D. wrote two checks totaling $25,000 to the Appellant’s company based on the Appellant’s false statement that the computer forensic expert charged $25,000 for her services, when the expert actually charged only $8,500. The jury was authorized to find beyond a reasonable doubt that the Appellant knowingly made false statements regarding the expert’s charges in order to keep at least $500 out of each check from B. D. Thus, the evidence was sufficient to support the Appellant’s convictions on Counts 1 and 2.⁹

In addition, B. D. paid the Appellant $5,000 when the Appellant told her that Axam...