Ware v. The State
| Decision Date | 14 July 2010 |
| Docket Number | No. A10A0503.,A10A0503. |
| Citation | 305 Ga.App. 229,699 S.E.2d 435 |
| Parties | WAREv.The STATE. |
| Court | Georgia Court of Appeals |
Gerard B. Kleinrock, for appellant.
Gwendolyn Keyes Fleming, Dist. Atty., Leonora Grant, Asst. Dist. Atty., for appellee.
Following the denial of his motion for new trial, Timothy Ware appeals his convictions for theft by taking by a fiduciary, use of false documents within the jurisdiction of state or political subdivision, violation of the Crimes Against the Elderly Act, and two counts of financial transaction card theft. He contends that trial counsel was ineffective, the evidence was insufficient to sustain his conviction for violating the Crimes Against the Elderly Act, and that the trial court provided an inadequate and incomplete answer to a jury question. Following our review we affirm.
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, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 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.
(Citation omitted.) Wilhelm v. State, 237 Ga.App. 682, 516 S.E.2d 545 (1999).
So viewed, the evidence reflects that Ware was the godson of the then eighty-year-old victim, Frank Johnson. Ware's parents and Johnson and his deceased wife were good friends for over 50 years. In the years preceding the alleged crimes Johnson rarely had much contact with Ware other than occasional overnight stays when Ware traveled to Augusta for medical treatment.
In 2005, Johnson had a stroke while Ware was staying with him, and Ware took him to the hospital for emergency treatment. Ware continued staying with Johnson during his illness, and afterward when Johnson fell after returning home and was hospitalized in February and March of 2005. Johnson testified that he was confused and disoriented during much of the time and that Ware often visited him in the hospital with “documents” requiring his signature, including a power of attorney.
In March 2005, Johnson was moved to a rehabilitation facility for further treatment. Approximately two weeks later a close friend of his came from Virginia to help him move to a rehabilitation facility in Virginia near her home. Ware picked her and Johnson up and drove them to a UPS store. Ware came out of the store with “a large stack of papers,” and a UPS worker accompanied him to notarize what Johnson was told was a purchase agreement to buy his home. His friend assumed the document was a purchase agreement as well, and witnessed the document, which in reality was a quitclaim deed giving Ware the home. Johnson testified that he never intended to give the home to Ware, but that Ware offered to purchase it for $275,000 in three yearly installments.
Two days later, as Johnson was preparing to leave for Virginia, he signed additional “documents” as directed by Ware that he later found out were a living trust encompassing all of Johnson's property and making Ware the trustee during Johnson's life and thereafter as successor trustee with the power to “hold, administer, and distribute all property,” a durable financial power of attorney naming Ware his agent and conservator, and a living will authorizing Ware to make health care decisions on Johnson's behalf. Johnson testified that it was never his intent to give Ware any of the powers granted in the documents.
While he was in Virginia, Johnson on more than one occasion asked Ware to provide him with the sales contract for the purchase of the house, but Ware refused and continued living in the house even though Johnson told him to “move and get, get out of [his] house.” Approximately nine months later, Johnson moved out of the assisted living facility in Virginia and moved into a condominium, where he was able to live independently. During this time, he received a letter from one of his life insurance companies requesting that he verify his request to change his beneficiary designation. Aware that he had not made the request, and with the assistance of his friend, he began to investigate his financial affairs and discovered that Ware had opened four credit cards in Johnson's name and received $6,000 in cash advances from the cards. He also learned that Ware had put all of Johnson's money in a trust account, and had sold Johnson's house and kept the proceeds. Johnson called the police, who upon completing their investigation, arrested Ware.
1. Ware first contends that trial counsel was ineffective for failing to object to the testimony of two credit card company representatives regarding who was responsible for the card charges, and for failing to object as hearsay to the contents of a letter from an insurance company. To prevail on his claim of ineffective assistance of counsel, Ware must show both that trial counsel's performance was deficient and that, but for that deficient performance, there is a reasonable probability that the result of his trial would have been different. Wilson v. State, 286 Ga. 141, 143(3), 686 S.E.2d 104 (2009). A failure to make either of these showings precludes a finding that counsel was ineffective. Braithwaite v. State, 275 Ga. 884, 885(2)(b), 572 S.E.2d 612 (2002). There is a strong presumption that counsel was effective, and we will uphold the trial court's determination that trial counsel was effective unless that determination was clearly erroneous. Kania v. State, 280 Ga.App. 356, 360(5), 634 S.E.2d 146 (2006).
(a) Ware argues that his trial counsel rendered ineffective assistance by failing to object to conclusory testimony from two credit card company investigators. Ware complains that trial counsel should have objected when the investigators at Citibank and Chase Bank testified that each company had determined that Johnson was not responsible for the charges on the cards. He argues that the testimony implicated him by default as the party responsible for the charges.
At the motion for new trial hearing, trial counsel testified that the investigators Ware's defense was essentially justification based on Johnson's...
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