The State v. Corhen

• Decision Date: 18 October 2010
• Docket Number: No. A10A1600.,A10A1600.
• Citation: 700 S.E.2d 912,306 Ga.App. 495
• Parties: The STATE v. CORHEN et al.
• Court: Georgia Court of Appeals

306 Ga.App. 495

700 S.E.2d 912

The STATE

v.CORHEN et al.

No. A10A1600.

Court of Appeals of Georgia.

Sept. 15, 2010.

Reconsideration Denied Oct. 18, 2010.

COPYRIGHT MATERIAL OMITTED.

Paul L. Howard Jr., Atlanta, Patricia Anne Hooks, Lenny I. Krick, for the State.

Elizabeth Vila Rogan, Dennis Clarence Francis Jr., John Walter Kraus, Tawanna Latreece Payton, Stephen Randall Scarborough, for Corhen et al.

ELLINGTON, Judge.

The State of Georgia appeals ¹ from an order of the Superior Court of Fulton County that granted the defendants' demurrers to an indictment which charged them with residential mortgage fraud, felony theft by deception, or both. On appeal, the State contends that the trial court erred in quashing the indictment, arguing that certain allegations were mere surplusage and did not invalidate the indictment, that the indictment was not duplicitous, and that the indictment was sufficient to withstand general and special demurrers. The State also contends that the trial court erred in granting the defendants' “speaking demurrers.” For the following reasons, we reverse the trial court's order.

The record in this case shows that the State charged the defendants with ten counts of residential mortgage fraud, OCGA § 16-8-102, ² and three counts of felony theft by deception, OCGA § 16-8-3. ³ According to the State, all of the charges arose from a series of allegedly fraudulent real estate sales, in which a seller (Antinino Corhen) obtained inflated appraisals (by Joshua Davis, Sylas Dewitt and Ronald Lovvorn) for four residential properties in the Atlanta area. The seller, assisted by a real estate broker (Jephthah Jenkins) or real estate agents (Alisha Dorsey and Lashane Taylor), found buyers for the properties and then, acting in concert, they allegedly falsified the buyers' mortgage applications by inflating the buyers' income so that the buyers could obtain mortgages. The State contends that none of the properties were actually worth the price the buyers paid for them. After the closings, the seller allegedly paid the broker or agents substantial amounts of money from the sale proceeds without disclosing the payments in the closing documents. The buyers ultimately defaulted on the loans, and the lenders foreclosed upon the properties. ⁴

Before trial, the defendants filed general and special demurrers to the indictment, and the trial court conducted a hearing on the demurrers on February 5, 2010. During the hearing, the court expressed concern about the language of the indictment, stating that some of the counts “don't make any sense and they don't put anybody on notice about what they did wrong or should have known [was] wrong.” The court ultimately concluded that the indictment was “a mess” and summarily quashed the indictment in its entirety. The court did not articulate the legal basis for its ruling or indicate whether it granted the defendants' general or special demurrers. Consequently, on appeal, we must evaluate whether the indictment is sufficient to withstand both a general and special demurrer.

“The two requirements of an indictment are that it definitively inform the accused of the charges against him, so that he may present his defense and avoid surprises at trial, and that it protect the accused against another prosecution for the same offense.” (Citation and punctuation omitted.) State v. Pittman, 302 Ga.App. 531, 533, 690 S.E.2d 661 (2010). To that end, “each count set forth in an indictment must be wholly complete within itself, and plainly, fully, and distinctly set out the crime charged in that count.” (Footnote omitted.) Smith v. Hardrick, 266 Ga. 54, 55(1), 464 S.E.2d 198 (1995).

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.” (Citation and punctuation omitted; emphasis in original.) Dunbar v. State, 209 Ga.App. 97, 98(2), 432 S.E.2d 829 (1993).

An indictment shall be deemed sufficiently technical and correct to withstand a general demurrer if it “states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury.” OCGA § 17-7-54(a). Moreover, if an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true, then the indictment is sufficient to withstand a general demurrer; 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. Lowe v. State, 276 Ga. 538, 540-541(2), 579 S.E.2d 728 (2003).

In contrast, when determining whether an indictment is sufficient to withstand a special demurrer, the applicable standard is

not whether [the indictment] could have been made more definite and certain, but whether 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.

(Punctuation and footnote omitted.) State v. Barnett, 268 Ga.App. 900, 900-901(1), 602 S.E.2d 899 (2004). See Falagian v. State, 300 Ga.App. 187, 192-193(3), 684 S.E.2d 340 (2009) (“By special demurrer, an accused claims, not that the charge in an indictment is fatally defective and incapable of supporting a conviction ..., but rather that the charge is imperfect as to form or that the accused is entitled to more information.”) (citations and punctuation omitted). When presented with a special demurrer, the court should examine the indictment from the perspective that the accused is innocent, for this is what the law presumes. Nevertheless, the language of an indictment is to be interpreted liberally in favor of the State, while the accused's objections to the indictment, as presented in a special demurrer, are strictly construed against the accused. Johnson v. State, 233 Ga.App. 450, 451(1), 504 S.E.2d 290 (1998). “In reviewing a ruling on a special demurrer, we apply a de novo standard of review[,] because it is a question of law whether the allegations in the indictment are legally sufficient.” (Citation and footnote omitted.) State v. Pittman, 302 Ga.App. at 531, 690 S.E.2d 661. Further,

[b]ecause we are reviewing an indictment before any trial, we do not conduct a harmless error analysis to determine if [the defendant] has actually been prejudiced by the alleged deficiencies in the indictment; rather, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance.

(Citation and punctuation omitted.) State v. Delaby, 298 Ga.App. 723, 724, 681 S.E.2d 645 (2009).

1. As an initial matter, the State contends that the trial court erred in considering and granting the defendants' “speaking demurrers.” ⁵ The record shows, however, that the State not only failed to raise this issue below, but, during the hearing on the demurrers, the State acquiesced to and participated in arguments regarding the “facts” underlying the indictment, arguments which it now claims gave rise to the defendants' “speaking demurrers.” Under these circumstances, this alleged error is waived. See Davis v. Phoebe Putney Health Systems, 280 Ga.App. 505, 506(1), 634 S.E.2d 452 (2006) (“A party cannot participate and acquiesce in a trial court's procedure and then complain of it.”) (citation omitted); Williams v. State, 277 Ga.App. 106, 108(2), 625 S.E.2d 509 (2005) (“We are a court for the correction of errors of law committed by the trial court where proper exception is taken, and we will not consider issues and grounds for objection, even of a constitutional magnitude, which were not raised and determined in the trial court.”) (footnote omitted). Moreover, because we are reversing the trial court's dismissal order on other grounds, as shown below, this issue is moot.

2. The State contends that, to the extent that the trial court dismissed the entire indictment based upon language that the State had inserted between Count 1 and Count 2, such dismissal was error. The State argues that such language was unnecessary to any of the counts and, thus, was mere surplusage that did not invalidate the indictment. We agree.

“An allegation in an indictment that is wholly unnecessary to constitute the offenses charged is mere surplusage.” (Citation and punctuation omitted.) Fair v. State, 284 Ga. 165, 167(2)(a), 664 S.E.2d 227 (2008).

Mere surplusage will not vitiate an indictment, and need not be established in proof. The material facts which constitute the offense charged must be stated and they must be proved in evidence. But allegations not essential to such purpose, which might be entirely omitted without affecting the charge and without detriment to the indictment, are considered as mere surplusage, and may be disregarded in evidence.

(Punctuation and footnote omitted.) Striplin v. State, 284 Ga.App. 92, 95, 643 S.E.2d 361 (2007).

The record shows that Count 1 of the indictment charges Corhen, Davis, Dewitt, Lovvorn and Taylor with committing residential mortgage fraud, OCGA § 16-8-102(2), through the use of fraudulent appraisals. ⁶ Immediately following Count 1, the State inserted the language at issue: “The crime[s] set forth herein in this Count One and all subsequent counts of this indictment [are] part of a pattern of residential mortgage fraud as to Antinino Lauray Corhen, Sylas Y. Dewitt and Joshua Davis.” This language suggests that the State may have intended to charge Corhen, Dewitt and Davis with participating in a pattern of residential mortgage fraud ⁷ pursuant to OCGA § 16-8-105(b). ⁸

Pretermitting whether the language at issue is...