State v. McClendon

• Citation: 868 S.E.2d 459,362 Ga.App. 322
• Decision Date: 20 January 2022
• Docket Number: A21A1675
• Parties: The STATE v. MCCLENDON.
• Court: United States Court of Appeals (Georgia)

362 Ga.App. 322

868 S.E.2d 459

The STATE

v.MCCLENDON.

A21A1675

Court of Appeals of Georgia.

January 20, 2022

Matthew S. Swope, John Herbert Cranford Jr., Newnan, for Appellant.

Michael George Kam, Newnan, Kamau Kessonya Mason, Lithonia, for Appellee.

Pinson, Judge.

Rhonda Dee McClendon, an accountant, was indicted on 13 counts of theft by taking for withdrawing funds from a client's bank accounts. She filed a plea in bar, contending that the charges were barred by the statute of limitation because the indictment issued more than four years after the alleged crimes were committed. The trial court granted the plea in bar, and the State now appeals under OCGA § 5-7-1 (a) (3). The State argues that the limitation period was tolled because McClendon's identity as the thief was not known until several years after the alleged crimes were committed. We conclude, however, that the State was chargeable with knowledge, more than four years before McClendon was indicted, of facts sufficient to support probable cause to arrest McClendon for the thefts. McClendon's indictment thus issued after the limitation period expired, so we affirm.

Background

The indictment here issued on November 13, 2020. In it, Rhonda McClendon, a certified public accountant, was charged with withdrawing funds, "unlawfully and in breach of her fiduciary obligation," from accounts belonging to John Bone and his company, Maritime Sales Leasing, Inc., over a period of a few months from March to July 2015.

When these alleged thefts occurred, the undisputed evidence shows that McClendon was acting as Bone's personal and corporate accountant. The parties had a longstanding business relationship, dating back about 15 years.

In June 2015, Bone was contacted by his bank about irregular transactions involving checks apparently signed by McClendon and made payable to business entities associated with her. Although McClendon had signature authority on Bone's accounts, the withdrawals—which totaled nearly $300,000—were unusually large for the time period they spanned. Later investigation revealed that many of these checks did not match up with any corresponding invoice from McClendon's firm.

After the bank contacted Bone, he contacted McClendon. McClendon denied any knowledge about the transactions. She told Bone that she had signed a number of blank checks of his and put them in her firm's safe, to be used only if a check was needed at a time when neither Bone nor McClendon was available to sign. She posited that one of her employees must have "gotten those checks out of the safe and made them out and deposited them in her various accounts to cover up some other form of theft that was taking place in her office." She promised to find out who was responsible and to repay Bone all funds that were not payment for services.

McClendon's denials, apologies, and promises are documented in a series of emails exchanged between McClendon and Bone in July 2015. In an email on July 14, 2015, she wrote that she had "discovered who the thief [was]" and that this employee "was taking my money, and when there wasn't enough, she went to the safe and took presigned checks from your account to provide what she needed to cover her theft." McClendon wrote that she had fired the employee and intimated that she planned to press charges. She continued promising she would "do whatever it takes" to resolve the situation. In a later email, McClendon said she had "turned everything over to [a] forensic accountant" in Atlanta and retained one or more firms "in DC" "to get to the bottom of this." She also said she "[was] not accusing or positing anything until [she had] facts" but that she "fully intend[ed] to make [Bone] whole."

Bone was skeptical. In a July 21, 2015, email, Bone told McClendon:

The bottom line here is that these checks were made out to you, signed by you and deposited into your account. Almost 300k in five months out of my account into your account.... Whatever happened in your office is not my concern and is your responsibility. I find it hard to believe that you left pre-signed checks on all four of my accounts where someone else had access to them and then that someone made them out to you or your firm and then deposited them into your account. It's like reverse fraud or something. Doesn't make sense.

Bone went on in the email to tell McClendon that she should be focusing on "how and when you are going to pay this back ... as I do not think that you would want to face a legal challenge on this mess." Despite the situation, however, McClendon continued to work for Bone for some period of time thereafter.

More than a year after the withdrawals were discovered, Bone hired counsel. In June 2017, Bone sued McClendon and several corporate entities ostensibly associated with her. In June 2018, McClendon was deposed, and Bone and his counsel, David Mecklin, learned that McClendon had withheld documents and information about certain bank accounts she held. After McClendon continued to resist producing these bank records, Mecklin obtained them through third-party discovery in September and October 2018. Mecklin's review revealed that some of Bone's funds had ultimately been transferred into a personal account belonging to McClendon. Based on this revelation and other information gained during discovery, Mecklin reported the matter to law enforcement in October 2018.

McClendon was initially indicted on September 4, 2019, on two counts of theft by taking. McClendon filed a plea in bar, contending that the indictment was time-barred by the four-year statute of limitation for theft by taking by a fiduciary.¹ In November 2019, following a hearing, the trial court denied the plea in bar.² But in April 2020, the trial court granted a demurrer and quashed the indictment, finding that the charges were not pled with sufficient specificity.

McClendon was re-indicted on November 13, 2020. Each of the 13 counts alleged a separate unauthorized withdrawal, the first occurring on March 9, 2015, and the last occurring on July 6, 2015. As to each count, the indictment alleged that "the statute of limitations ... was tolled pursuant to OCGA § 17-3-2 (2) in that the person committing the crime was unknown until 2018."

McClendon again filed a plea in bar on statute of limitation grounds. Following a hearing, the court concluded that the indictment had not issued until after the limitation period had expired. In reaching this conclusion, the court rejected the State's assertion that the limitation period had been tolled until 2018, when Bone was for the first time able to trace his funds to McClendon's personal account. Instead, the court found that, "as of at least July 21, 2015," Bone "had sufficient subjective knowledge that would lea[d] a reasonable person to believe that [McClendon] had committed [the thefts]."

Because that date was more than four years prior to the date of the indictment,³ the court granted the plea in bar.

Discussion

In criminal cases, the statute of limitation runs "from the time of the criminal act to the time of indictment." Riley v. State , 305 Ga. 163, 167 (3), 824 S.E.2d 249 (2019) (punctuation omitted). Criminal statutes of limitation are supposed to protect people from having to defend against charges for long-past conduct as to which the "basic facts may have become obscured by the passage of time," so they are construed "liberally ... in favor of repose." Id. (punctuation omitted). Accord Countryman v. State , 355 Ga. App. 573, 578 (1), 845 S.E.2d 312 (2020). And the State bears the burden to prove that the indictment issued within the applicable limitation period or, if it did not, that a tolling exception applies. Riley , 305 Ga. at 167 (3), 824 S.E.2d 249 ; Lewis v. State , 306 Ga. 455, 462–63 (4), 831 S.E.2d 771 (2019).

Here, the State argues that the so-called "person-unknown" exception applies. See Lewis , 306 Ga. at 463 (4), 831 S.E.2d 771. This exception applies when the identity of the person who committed the crime is unknown, and it tolls the limitation period from the time the crime was committed until that person's identity becomes known to the State. OCGA § 17-3-2 (2) ("[t]he period within which a prosecution must be commenced ... does not include any period in which ... [t]he person committing the crime is unknown"); Riley , 305 Ga. at 168–69 (3), 824 S.E.2d 249.

When does the identity of the perpetrator become "known" to the State in this context? Ultimately, it is when the State becomes aware of facts that give rise to probable cause to arrest that person for the crime. Riley , 305 Ga. at 169 (3), 824 S.E.2d 249 (statute of limitation is tolled "until the State possesses sufficient evidence to authorize the lawful arrest of that person for the crime charged"). Probable cause exists when the facts known to the State could lead a reasonably prudent person to conclude that there is a "probability"—more than mere suspicion, but less than absolute certainty—that the defendant committed the offense. Hughes v. State , 296 Ga. 744, 749 (2), 770 S.E.2d 636 (2015) ; see Riley , 305 Ga. at 169 (3), 824 S.E.2d 249 ("[t]he test of probable cause requires merely a probability"). In this context, the State is charged with knowledge of the facts actually known by the victim. Jannuzzo v. State , 322 Ga. App. 760, 762 (1), 746 S.E.2d 238 (2013). Accord Riley , 305 Ga. at 168 (3), 824 S.E.2d 249.

Thus, to establish that the person-unknown exception applies, the State must show that the facts within its knowledge—including knowledge imputed from the victim—were not enough to lead a reasonably prudent person to identify the defendant as the perpetrator until a time that, relative to the indictment, was within the limitation period. See Riley , 305 Ga. at 169 (3), 824 S.E.2d 249 ("[T]he State has the burden of proving that it lacked probable cause to arrest the defendant for a time sufficient to deem the indictment or other charging document timely."); Countryman , 355 Ga. App....