Sallee v. State

• Decision Date: 13 November 2014
• Docket Number: No. A14A1439.,A14A1439.
• Citation: 329 Ga.App. 612,765 S.E.2d 758
• Court: Georgia Court of Appeals
• Parties: SALLEE v. The STATE.

329 Ga.App. 612

765 S.E.2d 758

SALLEE

v.The STATE.

No. A14A1439.

Court of Appeals of Georgia.

Nov. 13, 2014.

Certiorari Denied Feb. 2, 2015.

Mark Sallee, pro se.

Gary Drew Bergman, Asst. Dist. Atty., Smyrna, William Jeffrey Langley, Dist. Atty., Charles Callison Olson, Asst. Dist. Atty., for Appellee.

Opinion

MILLER, Judge.

Following a jury trial, Mark Thomas Sallee was convicted of one count of insurance fraud (OCGA § 33–1–9 ).¹ In an out-of-time appeal, Sallee appeals from the denial of his motion for new trial, contending that (1) insufficient evidence supported his conviction; (2) the trial court erred in denying his general and special demurrers and his plea in abatement; (3) there was a fatal variance in the evidence; (4) the trial court erred in denying his motion for a mistrial based on juror misconduct; (5) the trial court improperly commented on the evidence; (6) Sallee was selectively and vindictively prosecuted; (7) the trial court was biased; and (8) Sallee's trial counsel was ineffective. This Court discerns no error. For the reasons that follow, we affirm Sallee's conviction.

Viewed in the light most favorable to the conviction,² the evidence shows that from 1995 to 2005, home builder John David Grice was married to Kim Grice Pack. In 2005, Grice purchased a 25–acre lot in Cutcane Ridge subdivision in Mineral Bluff for development and subsequently conveyed Lot 5 (“the Property”) to Pack. Pack obtained a loan from Home Bank and Grice built a house on the Property. Pack also obtained a builder's risk insurance policy on the Property from Zurich Assurance Company of America (“Zurich”).

In 2006, after Grice and Pack divorced, Pack entered into a sales contract to sell the Property to Grice. On Friday, August 4, 2006, Pack sold the Property to Grice for $180,000. Pack paid off her Home Bank loan and earned a profit of approximately $15,000.³ Grice financed the purchase with a new loan from Home Bank, but he did not obtain any insurance on the Property.

Attorney Michael Birchmore, representing Home Bank, handled the closing. At closing, Pack executed a warranty deed, Grice executed a security deed, and both Pack and Grice signed a settlement statement.

Two days later, on August 6, 2006, a fire on the Property destroyed the house. The next day, Grice told Birchmore about the fire and asked Birchmore to delay recording the deed because Grice did not have insurance on the Property. In a letter to Home Bank, Birchmore proposed recording the deed the following day and he sent the documents to be recorded on August 8. The deeds, however, were not filed and the original deed was lost. Shortly after the fire, Pack contacted Zurich to see if the fire was covered by her builder's risk policy but Zurich determined that Pack would not be able to file a claim since she had sold the Property prior to the fire.

Grice retained Sallee to represent him in a malpractice claim against Birchmore for failing to ensure that Grice had insurance on the property at the time of the sale. Grice told Sallee that he had executed a security deed and Pack had executed a warranty deed at the August 4, 2006 closing, and Pack had been paid approximately $15,000. Sallee ultimately decided not to pursue and claims against Birchmore; however, Sallee advised Grice to make a claim against Pack's insurance policy because the closing had not been completed and the deed to the Property, showing that Grice was the owner, had not yet been recorded.

Grice and Sallee then approached Pack and told her that they had determined that because the deeds had not been filed, Pack could file an insurance claim on the Property. Grice offered Pack $5,000 for her part in filing the claim. In October 2007, Sallee submitted an insurance claim to Zurich on Pack's behalf.

In March 2008, Sallee filed a bad faith lawsuit against Zurich on Pack's behalf. Although Sallee knew that Pack had received approximately $15,000 at closing, he told Zurich that Pack had not been paid for the sale of the property.

In December 2008, Sallee sent Pack a proof of loss statement to be filed with Zurich, claiming a loss of approximately $118,000. Sallee told Pack that he had found a loophole, the insurance claim was a windfall, and she could collect “free money” because Birchmore had not handled the closing properly. On December 8, 2008, Pack signed the proof of loss statement and Sallee submitted the statement to Zurich.

Pack later told Grice that she wanted to drop the claim because she had lied. Nonetheless, in December 2008, Zurich issued a check for just under $118,000 to Pack and Sallee. Sallee never told Pack that he had received the check and Pack never signed the check. Sallee cashed the check but later returned approximately $77,000 to Zurich, saying that he could not disburse the funds. Sallee kept the remainder of the money, approximately $40,000, as his fee.

The jury found Sallee guilty on one count of insurance fraud based on the submission of Pack's proof of loss statement.

1. Sallee contends that the evidence was insufficient to convict him of insurance fraud because there was no evidence that he made any affirmative misrepresentations, it was a matter of public record that Pack no longer owned the property at the time of the fire, and the insurance company did not rely on any alleged misrepresentation when paying Pack's claim. We discern no error.

A person commits the crime of insurance fraud by making or aiding in the making of a false or fraudulent written statement or representation of any material fact or by filing a claim “for the purpose of procuring or attempting to procure the payment of any false or fraudulent claim or other benefit by an insurer[.]” OCGA § 33–1–9(a). Furthermore, “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16–2–20(a). Although “mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred.” (Citations and punctuation omitted.) McWhorter v. State, 198 Ga.App. 493(1), 402 S.E.2d 60 (1991).

Pack's interest in the property terminated when she sold it. See Roach v. Ga. Farm Bureau Mut. Ins. Co., 173 Ga.App. 229, 230, 325 S.E.2d 797 (1984) (insured's interest in property terminates when property is sold). Nevertheless, Sallee approached Pack after the sale and encouraged her to file an insurance claim on the Property. Sallee knew that Pack's loan on the Property had been paid off on August 4, 2006 at the closing but nonetheless filed Pack's signed proof of loss statement with Zurich on December 8, 2008, in which she falsely claimed a loss of approximately $118,000 under her insurance policy.

While Sallee argues that there was no insurance fraud because an employee of Zurich testified that Zurich did not rely on Sallee's misrepresentations when it paid Pack's claim,⁴ reliance is not an element of criminal insurance fraud.

Rather, the State must prove that the defendant made a false statement for the purpose of procuring or attempting to procure payment of a false or fraudulent claim. Once a defendant makes a false statement for such purpose, the crime is complete, and it is irrelevant whether or not the claim is subsequently paid.

(Punctuation and footnote omitted.) Callaway v. State, 247 Ga.App. 310, 314(1)(b), 542 S.E.2d 596 (2000). Thus, it matters not whether Zurich relied on Sallee's misrepresentation in deciding whether to pay Pack's claim. Given the evidence set forth above, a jury was authorized to conclude that Sallee aided Pack in making a false or fraudulent written statement for the purpose of procuring or attempting to procure the payment of a false claim, which was all that was required to convict Sallee of insurance fraud. See id.

2. Sallee contends that the trial court erred in denying his general and special demurrers. We discern no error.

An accused may challenge the sufficiency of an indictment by filing a general or special demurrer. A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment. An indictment is sufficient to withstand a general demurrer if an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true; however, if an accused can admit to all of the facts charged in the indictment and still be innocent of a crime, the indictment is insufficient and is subject to a general demurrer.

An indictment is sufficient to withstand a special demurrer if it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

(Citations and punctuation omitted.) Raybon v. State, 309 Ga.App. 365, 366, 710 S.E.2d 579 (2011). We review a trial court's ruling on a general or special demurrer de novo in order to determine whether the allegations in the indictment are legally sufficient. See State v. Marshall, 304 Ga.App. 865, 698 S.E.2d 337 (2010) ; see also State v. Corhen, 306 Ga.App. 495, 501(4), 700 S.E.2d 912 (2010).

As to Count 2, the indictment alleged that on December 8, 2008, in violation of OCGA § 33–1–9, Sallee, Grice and Pack, individually and as parties concerned in the commission of crime

knowingly [made] and [aided] in the making of a fraudulent representation of material fact, to wit: Kim Grice [Pack] signed a Sworn Proof of Loss Statement claiming she had a loss of $117,849.82, a written statement, relating to a policy of insurance, for the purpose of procuring the payment of a fraudulent claim by Zurich Insurance Company[.]

(a)...