Whaley v. State

• Decision Date: 02 November 2017
• Docket Number: A17A0848
• Parties: WHALEY v. The STATE.
• Court: Georgia Court of Appeals

343 Ga.App. 701

808 S.E.2d 88

WHALEY

v.The STATE.

A17A0848

Court of Appeals of Georgia.

November 2, 2017

Ms. Ashleigh Bartkus Merchant, for Apppellant.

Mrs. Amelia Greeson Pray, Mr. D. Victor Reynolds, for Appellee.

Rickman, Judge.

Following a jury trial, Robert Whaley was convicted on one count of Violation of Georgia's Racketeer Influenced and Corrupt Organizations Act ("RICO") for acquiring money and property through a pattern of racketeering activity in violation of OCGA § 16-14-4 (a). Whaley contends that the evidence was insufficient to support his conviction; the RICO prosecution was time barred; and the trial court erred in allowing the State to introduce extrinsic act evidence, and his trial counsel rendered ineffective assistance by failing to make a proper objection to that evidence. We find no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Laster v. State, 340 Ga. App. 96, 97, 796 S.E.2d 484 (2017).

So construed, the evidence adduced at trial showed that throughout most of the time period relevant to this case, Whaley had a romantic relationship with and/or was engaged to marry Sharron Rice, with whom he also lived for about a year. From approximately May 2005 through July 2012, Rice was employed as accounts payable manager and eventually assistant comptroller for D. E. L. Development Corporation ("DEL"). In that capacity, Rice was responsible for processing all of DEL's accounts payable and issuing checks to DEL's various vendors. At no time did Rice have the authority to sign checks on behalf of DEL.

On a Friday, August 3, 2012, the President of DEL noticed certain inconsistencies during his monthly review of DEL's financial statements. After questioning his employees and being uncomfortable with Rice's demeanor, he ordered that an audit be conducted. The following Monday morning, he entered the office to discover that Rice had resigned, leaving him a resignation letter and her keys.

The subsequent audit and resulting investigation revealed that over the course of Rice's employment at DEL and during her relationship with Whaley, Rice created in excess of 841 false account payable entries within DEL's accounting software and thereby stole over $800,000 from DEL by writing unauthorized checks to herself and to the personal creditors of herself and Whaley.¹ During that time, Whaley and Rice also vacationed together to such places as Alaska, Jamaica, San Francisco and New York City.

Rice and Whaley were both arrested and charged with three separate counts alleging violations of OCGA § 16-14-4 (a) of the RICO Act.² Rice pled guilty to the charges. During Whaley's ensuing trial, the State introduced evidence that Rice and Whaley used four separate bank accounts to facilitate the theft of funds from DEL.

(a) Whaley's Hughes Services Account. On April 24, 2005, Whaley personally opened a SunTrust bank account as "Robert Whaley, d/b/a Hughes Services," and was the sole account holder. At that time, DEL conducted business with a vendor called "Hughes, MRO," to whom Rice issued checks on behalf of DEL.³ Rice began issuing unauthorized checks made out simply to "Hughes," which were then deposited into Whaley's Hughes Services Account. Although SunTrust was only able to provide records dating back to March 2006, those records demonstrated that from that date until Whaley closed the account on February 21, 2007, 256 checks totaling over $50,000 were deposited into Whaley's Hughes Services Account. Of that amount, only approximately $5,000 of the deposited funds were not connected to DEL.

Whaley used this to make cash withdrawals and pay personal bills. Additionally, over $27,000 was funneled back to Rice in the form of checks made payable to her.

(b) Whaley's and Rice's Joint LGE Account. Whaley and Rice owned a joint LGE account, which they opened in 2003 (the "Joint Account"). Rice's paychecks from DEL were directly deposited into the this account, and stolen funds were funneled to the Joint Account from Whaley's Hughes Services Account using checks written to Rice. The Joint Account was also used to pay Whaley's personal bills, and Whaley cashed checks written to himself from the Joint Account.

(c) Rice's Hughes Account. In March 2007, during a time that Whaley and Rice were having trouble in their relationship, Rice opened a different "Hughes" account at Regions Bank named Sharron Rice d/b/a Hughes. Rice testified that Rice's Hughes Account was meant to be "a continuation" of Whaley's Hughes Services Account in that its purpose was to deposit funds stolen from DEL. Rice wrote checks to Whaley from Rice's Hughes Account and its funds were also used to pay for Whaley's personal bills.

(d) Whaley's Personal Bank Account. Whaley maintained a personal checking account with SunTrust Bank. He deposited into this Personal Account checks written from Rice's Hughes Account.

Rice admitted that the purpose of moving funds stolen from DEL between the various accounts was to "wash" the money, which is a common practice among white collar criminals and is intended to make it difficult to determine the source and/or volume of stolen funds.

The State also admitted extrinsic act evidence pursuant to OCGA § 24-4-404 (b) of Whaley's 2005 guilty plea under the First Offender Act to theft by taking. Specifically, the State presented evidence that Whaley, while working as a computer technician, stole approximately $16,000 worth of computer equipment from a hospital with whom his employer had contracted and attempted to sell the equipment on eBay. He entered a guilty plea on April 25, 2005, and pursuant to the plea agreement, was ordered to pay $16,000 in restitution. He opened Whaley's Hughes Services Account the day before he entered his plea.

The jury found Whaley the jury found Whaley guilty, both individually and as a party to a crime, with conspiring to violate and with violating the RICO Act by acquiring money, directly and indirectly, through a pattern of racketeering activity.⁴ The trial court denied his motion for new trial, and this appeal follows.

1. The evidence set forth above was sufficient for a rational trier of fact to conclude that Whaley conspired with Rice to acquire money, directly and indirectly, through a pattern of racketeering activity in violation of OCGA § 16-14-4 (a). See OCGA § 16-14-3 (5) (A) (xii) (" ‘Racketeering activity’ means to commit, [or] to attempt to commit ... any crime which is chargeable by indictment under the laws of this state involving ... theft."); see generally Akintoye v. State, 340 Ga. App. 777, 782 (1) (d), 798 S.E.2d 720 (2017) ; Brown v. State, 321 Ga. App. 198, 204 (4), 739 S.E.2d 118 (2013).

Although Whaley maintains that he was not aware of the fraudulent nature of the funds, it was entirely within the purview of the jury to reject that defense. See Lopez v. State, 291 Ga. App. 210, 212, 661 S.E.2d 618 (2008) ( "[I]ssues of witness credibility ... [are] solely within the province of the jury and play no part in this Court's sufficiency of the evidence review.") (citation and punctuation omitted).

Further, Whaley's contention that the amount of money used for his benefit was small relative to the amount used for the benefit of Rice does not render the evidence insufficient. As a co-conspirator and party to a crime, the racketeering activity underlying Whaley's RICO violation included not only the acts of himself, but also of Rice.

[I]f two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose, so long as they are a natural and probable consequence of the conspiracy.

(Citations, punctuation, and emphasis omitted.) Hicks v. State, 295 Ga. 268, 272 (1), 759 S.E.2d 509 (2014) ; see also OCGA § 16-2-21 ("Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto....") It follows that the trial court did not err in denying Whaley's motion for new trial on the basis that the evidence was insufficient to support his RICO conviction.

2. Whaley further argues that his RICO prosecution was time barred because the last overt act alleged against him occurred more than five years prior to August 23, 2013, the date the indictment was filed. The statute of limitations for a RICO violation is set forth in OCGA § 16-14-8,⁵ which provides that, "a criminal ... action or proceeding under this chapter may be commenced up until five years after the conduct in violation of a provision of this chapter terminates or the cause of action accrues."⁶

Whaley specifically asserts that because Whaley's Hughes Services Account was closed on February 21, 2007, and because evidence showing the ATM/withdrawal history of his Personal Account ended in January 2008, any alleged conspiracy between himself and Rice necessarily ended by that time, more than five years before the indictment. This argument fails for several reasons.

First, as discussed in Division 1, Whaley was responsible for all acts...