Middlebrooks v. State

Citations: 627 S.E.2d 154; 277 Ga. App. 551; 2006 Fulton County D. Rep. 492; 2006 Ga. App. LEXIS 149Docket: A06A0030

Court: Court of Appeals of Georgia; February 9, 2006; Georgia; State Appellate Court

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William Middlebrooks was convicted of twelve counts of forgery in the second degree, nine counts of financial transaction card theft, and one count of identity fraud. He appealed, raising several issues: the trial court's denial of his motion to suppress evidence from a residence search, the improper merging of financial transaction card theft counts, the unconstitutionality of the statute under which he was convicted for card theft, reliance on hearsay evidence for forgery convictions, and improper venue for identity fraud and theft convictions. The appellate court affirmed in part and reversed in part.

The court emphasized that evidence must be viewed favorably to support the verdict, with no presumption of innocence for the defendant. Evidence revealed that First Union Bank discovered forged checks linked to compromised accounts, traced to a document listing accounts with large balances. Middlebrooks's co-defendant, previously arrested for similar charges, lived with him. Police obtained a warrant to search their residence, where they found the bank list, counterfeit checks, credit cards, forged and legitimate IDs, blank check stock, and an ID-making machine. None of the items belonged to Middlebrooks or his co-defendant.

Middlebrooks argued the search warrant affidavit contained false statements and that the reviewing judge improperly relied on informant information. The court clarified that determining probable cause requires a commonsense decision based on the totality of circumstances in the affidavit, presuming its validity unless deliberate falsehoods or material omissions are proven. The court concluded that Officer Sukhanath’s statements in the affidavit about the items at the residence did not invalidate the probable cause, as the mere absence of some listed items did not constitute a false statement.

If false information is present in an affidavit for a search warrant, or if material information is omitted, the false statements must be removed, the truthful material added, and the affidavit must be reassessed for probable cause. The relevant affidavit included a section detailing Middlebrooks's connections to a co-defendant involved in fraudulent activities, including prior arrests for using fraudulent account information. The affidavit indicated that Middlebrooks and his co-defendant lived and traveled together, providing substantial grounds for the search warrant.

Middlebrooks argued that the warrant improperly relied on information from a confidential informant; however, the informant's identity was disclosed as a First Union investigator whose observations were corroborated by an officer's preliminary investigation, rendering the reliance on the affidavit appropriate.

Middlebrooks also contested the nine counts of financial transaction card theft, claiming they should merge into two. The law specifies that a person commits financial transaction card theft by withholding a card without the cardholder’s consent. Since each card belonged to different victims and had distinct identifying information, the charges did not merge as they were supported by separate facts. Consequently, it was not erroneous to charge Middlebrooks with nine counts for the separate acts of withholding each financial transaction card. The distinction between robbery and financial transaction card theft was emphasized, clarifying that multiple thefts can be charged separately under the relevant statute. Thus, Middlebrooks's arguments were deemed without merit.

Middlebrooks argues that OCGA 16-9-31, under which he was convicted of financial transaction card theft, is unconstitutional for shifting the burden of proof to the defendant. While the statute does contain a provision (OCGA 16-9-31(d)) that improperly shifts this burden, the Supreme Court of Georgia has severed this provision, allowing the remainder of the statute to remain effective. Since the jury was not instructed on OCGA 16-9-31(d) and the prosecution did not rely on it, no error was found regarding Middlebrooks's conviction under OCGA 16-9-31(a).

Middlebrooks also contends that the trial court improperly relied on hearsay testimony for his forgery convictions. He was convicted under OCGA 16-9-2(a), which defines forgery in the second degree. The hearsay evidence presented indicated that a name on the forged checks did not match the authentic account names, but hearsay does not constitute probative evidence. Despite this, the admission of the forged checks and identification card, along with overwhelming evidence of their forgery found in Middlebrooks's residence, rendered any error from the hearsay testimony harmless.

Lastly, Middlebrooks claims improper venue for his financial transaction card theft and identity fraud convictions. Venue must be established beyond a reasonable doubt, as it is a jurisdictional element essential to a crime's prosecution. Failure to prove venue can lead to a reversal of the verdict. The determination of venue can be aided by examining the key verbs in the statute defining the criminal offense.

Financial transaction card theft is defined under OCGA 16-9-31 (a)(1) as the act of withholding a financial transaction card. Evidence indicated that the cards were located in Middlebrooks's residence, which is in Fayette County, establishing proper venue for the theft conviction. In contrast, the identity fraud conviction, based on OCGA 16-9-121(1), requires proof of unlawfully obtaining a victim's identifying information. The statute permits venue in any county where the victim resides or where any part of the offense occurred, regardless of the defendant's presence. The victim testified she lived in Union City, but there was no evidence presented to confirm this, nor did the trial court take judicial notice of her residence. Although the victim's card was found in Middlebrooks's Fayette County home, there was insufficient evidence to demonstrate how he obtained the card. Consequently, the court determined that venue for the identity fraud charge was not proven beyond a reasonable doubt, leading to the reversal of that conviction, while affirming the conviction for financial transaction card theft. Retrial for identity fraud is permitted as it does not violate the Double Jeopardy Clause. The judgment is affirmed in part and reversed in part.