Townsend v. State

• Decision Date: 24 September 2020
• Docket Number: A20A1478
• Citation: 357 Ga.App. 111,848 S.E.2d 210
• Court: Georgia Court of Appeals
• Parties: TOWNSEND v. The STATE.

357 Ga.App. 111

848 S.E.2d 210

TOWNSEND

v.The STATE.

A20A1478

Court of Appeals of Georgia.

September 24, 2020

Reconsideration Denied October 15, 2020

Clarke & Towne, David Edward Clark, for Appellant.

Penny Alane Penn, District Attorney, Heather Nicole Dunn, Assistant District Attorney, for Appellee.

Markle, Judge.

Following a jury trial, Quentin Townsend was convicted of three counts of theft by taking and one count of forgery in the first degree. He now appeals, arguing that the trial court erred in failing to merge his convictions, and that his order of restitution must be vacated. Although we affirm the trial court's order awarding restitution, and conclude that the convictions for theft by taking and forgery do not merge, for the reasons that follow, we vacate Townsend's convictions and sentences for theft by taking, and remand the case for the trial court to merge these convictions so that only one theft by taking conviction remains and resentence Townsend accordingly. On remand, the trial court must also correct a scrivener's error in the restitution order.

Viewing the evidence in the light most favorable to the verdict, Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the record shows that the two victims were interested in opportunities for ownership of minor league basketball teams.¹ An acquaintance suggested that they contact Townsend, who owned another minor league team with his wife. Ultimately, the victims met with Townsend and decided to invest money for an interest in an Atlanta team. The victims formed Jayhawk Development, LLC, to handle the business related to this investment. Not long after this initial collaboration, the victims decided they wanted to move to ownership of a team in a different minor league, the NBA D-League ("NBADL"), and they discussed the options with Townsend. Townsend told the victims that he knew people in the NBADL and that they needed to put together an application to submit to the league. Townsend told them that the fee to obtain a team license was $1 million, but that they would only have to put in $500,000 if they could get a major league team to sponsor them. Townsend then suggested that they put up a significant amount of funds as a show of good faith. For their 20 percent share of the team, the victims would need to offer $200,000.

In January 2008, the victims gave Townsend $40,000 toward their ownership interest. Townsend told them that he was in contact with the NBADL and the Atlanta Spirit, the owners of the Atlanta Hawks, and he gave the victims a NBADL ownership application to complete. Townsend also showed them a letter that appeared to be from a member of the NBADL operations department setting out all of the financial obligations and the expected operating budget for ownership of a team.

Based on that letter, in February 2008, the victims gave Townsend another $60,000 toward their ownership interest in a NBADL team. However, they later learned that no major league team would sponsor them, and as a result, Townsend told the victims that they would need to proffer their share of the entire $1 million to show they were serious about bringing a NBADL team to Atlanta. In June 2008, the victims gave Townsend another $100,000.

Townsend's deception continued over the summer of 2008 when he told the victims that members of the NBADL leadership were coming to Atlanta and that he would be meeting with them to discuss the victims’ NBADL application. In reality, the NBADL had never given Townsend approval to move forward with the process to obtain a NBADL team, and the purported letter from the operations manager that Townsend showed the victims was fake. And Townsend never actually submitted the victims’ ownership application to the NBADL.

Eventually, the victims realized that Townsend was attempting to defraud them, and they contacted police and filed a civil suit against him. When he learned of the suit, Townsend agreed to reimburse the victims, and he signed a consent judgment in the civil case. Nevertheless, he failed to repay the money.

Based on this scam, Townsend was indicted for three counts of theft by taking and a single count of forgery arising from the fake NBADL letter. Following a trial, at which Townsend testified, the jury convicted him of all counts.

At sentencing, Townsend requested first offender status and the opportunity to make restitution, saying that he thought he could pay the victims back. The trial court sentenced Townsend to ten years on each count, to run consecutively, with the first ten years served in confinement. And it ordered Townsend to pay restitution to "Jayhawk Sports" in the amount of $200,000. Townsend now appeals.²

1. Townsend first argues that the trial court erred by failing to merge his convictions. Specifically, he contends that the forgery conviction (Count 4) merged into one of the theft by taking convictions (Count 2) as a matter of fact because the forgery was used to accomplish the theft. He also argues that the theft convictions in Counts 1 and 2 should merge because the dates on which the offenses occurred were not material elements in the indictment. We agree that the theft by taking convictions should merge, but conclude that the forgery conviction would not merge.

"Whether offenses merge is a legal question, which we review de novo." (Citation and punctuation omitted.) Fordham v. State , 352 Ga. App. 520, 526 (3), 835 S.E.2d 360 (2019).

(a) Forgery and Theft by Taking.

To begin, we note that much of Townsend's argument is premised on the theory that he was convicted of theft by deception; but Townsend was not charged with – or convicted of – theft by deception. Instead, he was charged with and convicted of theft by taking.

In Count 2 of the indictment, Townsend was charged with taking over $500 from the victims on February 21, 2008. Count 4 charged that Townsend made or altered a letter allegedly sent by the NBADL.

Under OCGA § 16-1-6,

[a]n accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

As we have explained,

[t]o answer the question of whether offenses merge, the Supreme Court of Georgia has adopted the "required evidence" test .... So, when determining whether convictions for multiple crimes merge for purposes of sentencing, the applicable rule is that when the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Importantly, though, when one crime is completed before the other begins, there is no merger.

(Citations and punctuation omitted.) Smith v. State , 354 Ga.App. 882-88 (3), 842 S.E.2d 305, 311-312 (3) (2020). In other words, "[t]wo offenses will merge as a matter of fact if one of them is established by proof of the same or less than all the facts required to prove the other. The key question is whether the State ‘used up’ its evidence in proving the crime[.]" (Citations and punctuation omitted.) Branan v. State , 285 Ga. App. 717, 720 (2) (b), 647 S.E.2d 606 (2007).

Here, forgery and theft by taking each requires proof of a fact that the other does not. See Cade v. State , 262 Ga. App. 206, 208 (1) (b), 585 S.E.2d 172 (2003) ; cf. Branan , 285 Ga. App. at 720-721 (2) (b), 647 S.E.2d 606 (theft by taking and securities fraud did not merge because fraud required proof of fraudulent statement, but theft offense did not). To prove theft by taking, the State had to show that Townsend took money belonging to the victims with the intent to deprive them of that property. See OCGA § 16-8-2. And to prove forgery, the State had to show that Townsend made or possessed the letter written by another with the intent to defraud the victims and that he delivered that writing to the victims. OCGA § 16-9-1 (a) (as it provided in 2008).

Each of these offenses requires proof that the other does not. Moreover, the two offenses involved different victims. See Verdree v. State , 299 Ga. App. 673, 684 (6) (b), 683 S.E.2d 632 (2009) (aggravated assault and armed robbery did not merge as a matter of fact where they involved different victims). As a result, there is no merit to Townsend's argument that these two offenses should merge.

(b) Theft by Taking Convictions.

With respect to his theft by taking convictions, Townsend argues that the offenses in Counts 1 and 2 merge because they involve the same crime committed on different dates, but the date was not made a material element. We are constrained to agree.³

It is a longstanding principle of Georgia law that a date or range of dates alleged in an indictment, without more, is not a material allegation of the indictment, and, consequently, unless the indictment specifically states that the alleged dates are material, the State may prove that the alleged crime was committed on any date within the statute of limitation. Thus, such an averment of materiality is necessary to overcome a plea of double jeopardy to a subsequent charge of committing the same act on a separate date. To make such dates a material allegation, the indictment must "specifically allege" that the date of the offense is material.

(Citations and punctuation omitted; emphasis supplied.) Thomas v. State , 352 Ga. App. 640, 642 (1) (a), 835 S.E.2d 640 (2019) ; see also Bradford v. State , 285 Ga. 1, 4 (3), 673 S.E.2d 201 (2009) ; Ledesma v. State , 251 Ga. 885 (1) (a), 311 S.E.2d 427 (1984).⁴

In Counts 1, 2, and 3 of the indictment, Townsend was...