FIFTH DIVISION
REESE, P. J.,
MARKLE and COLVIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
September 24, 2020
In the Court of Appeals of Georgia
A20A1478. TOWNSEND v. THE STATE.
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 SCt 2781, 61 LE2d 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.
1
Townsend does not argue that the evidence was insufficient to convict him. Nevertheless, the evidence recounted above was sufficient to support Townsend’s convictions for theft by taking and forgery. See OCGA §§ 16-8-2; 16-9-1 (a) (2008).
2
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
3
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 10 years on each count, to run consecutively, with the first
10 years served in confinement. And it ordered Townsend to pay restitution to
“Jayhawk Sports” in the amount of $200,000. Townsend now appeals.2
2
Following his conviction, Townsend filed a motion for new trial, raising issues unrelated to those before us on appeal. Nevertheless, we may address the merger issue in the first instance regardless of whether it was raised in the trial court. Jones v. State, 354 Ga. App. 568, 575 (1) (c) (ii) (841 SE2d 112) (2020).
4
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
SE2d 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.
5
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, __ Ga. App. __ (3) (842 SE2d
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
6
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 SE2d 606) (2007).
Here, forgery and theft by taking each require proof of a fact that the other does
not. See Cade v. State, 262 Ga. App. 206, 208 (1) (b) (585 SE2d 172) (2003); cf.
Branan, 285 Ga. App. at 720-721 (2) (b) (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) (2008). Each of these offenses
requires proof that the other does not. 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
7
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.
3
Although Townsend does not argue that his conviction for theft by taking in Count 3 would merge, we may address this issue sua sponte, and in doing so, we conclude that this count would merge as well for the same reasons. See Jones, 354 Ga. App. at 575 (1) (c) (ii). Notably, the only difference in the counts are the dates and the identification of the victims’ company. In Counts 1 and 2, the indictment charges that the victims were doing business as (“d/b/a”) Forte Data Systems, Inc. In Count 3, the same two individuals are named as victims d/b/a Jayhawk Development, LLC. This distinction does not prevent the counts from merging because a d/b/a designation is not a separate legal entity, but is merely a description of the corporation. See American Express Travel Related Svcs. Co., Inc. v. Berlye, 202 Ga. App. 358, 360 (1) (414 SE2d 499) (1991); see also McConnell v. State, 263 Ga. App. 686, 693 (7) (589 SE2d 271) (2003) (rejecting State’s argument that offenses involved separate victims where indictment charged burglary for entering premises d/b/a Bakery Services, Inc., and another count identified victim as owner of bakery individually); Change v. State, 156 Ga. App. 316 (274 SE2d 711) (1980) (single count indictment identified victims by name and as d/b/a).
8
(Citations and punctuation omitted; emphasis supplied.) Thomas v. State, 352 Ga.
App. 640, 642 (1) (a) (835 SE2d 640) (2019); see also Bradford v. State, 285 Ga. 1,
4 (3) (673 SE2d 201) (2009); Ledesma v. State, 251 Ga. 885 (1) (a) (311 SE2d 427)
(1984).4
In Counts 1, 2, and 3 of the indictment, Townsend was charged with taking an
amount over $500 from the victims on three different dates. Specifically, the
indictment alleged that, on separate dates, Townsend:
did unlawfully take a sum of United States currency, the property of [the
victims], with a value exceeding $500.00, with the intention of
depriving said owner of said property, this count not included in any
other count of this indictment[.]
(Emphasis supplied.)
4
We have held that, where the indictment alleged “a different set of facts or a different date which is made an essential averment of the transaction, the State may on conviction punish the defendant for the various crimes.” (Citations, punctuation, and emphasis omitted.) Torres v. State, 353 Ga. App. 470, 485 (6) (838 SE2d 137) (2020) (counts alleging defendant had sexual intercourse with the victim who was under fourteen did not merge with count alleging sexual intercourse with victim who was over fourteen because different facts supported each count and the age of the victim altered the possible sentence imposed such that it was a material element). But Townsend’s indictment fails to allege different sets of facts or include a date that is material due to the possible sentence that could be imposed.
9
The State contends that this language is sufficient to make the date material and
to protect Townsend from double jeopardy concerns. In light of our recent decision
in Thomas, we are constrained to conclude otherwise. Thomas, 352 Ga. App. at 642-643 (1) (a) (“numerous cases hold that if the counts in the indictment are identical
except for the dates alleged, and the dates were not made essential averments, only
one conviction can stand.”) (citation and punctuation omitted). Here, as in Thomas,
the allegations in the indictment failed to particularize the dates, such as by specifying
the amount of money taken on each occasion, and therefore, the date was not a
material element in the indictment. See id. at 643 (1) (a). See also Brown v. State, __
Ga. App. __ (3) (844 SE2d 182, 189 (3)) (2020) (date was a material averment where
indictment alleged “said date being a material element of the offense”).
We have never opined what language is required to make the date material in
the absence of express language stating that it is. But, we conclude that simply stating
that the offenses in each count are “not included in the other counts” does not
“specifically allege” that the date is material. See Hunt v. State, 336 Ga. App. 821,
825 (1) (b) (783 SE2d 456) (2016) (convictions merged despite language in
indictment that the second count occurred on an “occasion different” or “on a
different date” than the first count). Compare Brown, 844 SE2d at 189 (3);
10
Bloodworth v. State, 128 Ga. App. 657, 658 (1) (197 SE2d 423) (1973) (separate
convictions could stand where “each count referr[ed] to a different day and different
transaction, and each recit[ed] ‘the date herein alleged being a material averment as
to this count.’”); Martin v. State, 73 Ga. App. 573, 576 (3) (37 SE2d 411) (1946)
(separate convictions for operating a lottery did not merge where indictment alleged
that the date of each count was “an essential averment as to this transaction.”).
As a result, Townsend is correct that his convictions for theft by taking must
merge. And, as the sentences imposed on each count were to run consecutively, we
must vacate the sentences and remand with instructions to merge the three theft
offenses and resentence Townsend for only one theft conviction, in addition to the
forgery conviction.
2. Townsend next argues that the trial court erred in ordering restitution
without conducting a hearing and by identifying the victim to whom restitution was
due as “Jayhawk Sports.” Although we conclude that Townsend waived any argument
with respect to a hearing or the restitution amount, we note that there is a scrivener’s
error with regard to the victim’s name. We therefore affirm the restitution amount, but
remand with instructions to correct the name of the victim.
11
Under OCGA § 17-14-3 (a), the trial court “shall, in sentencing an offender,
make a finding as to the amount of restitution due any victim, and order an offender
to make full restitution to such victim.” When the parties disagree about the amount
of restitution due, the trial court must conduct a hearing on the amount of restitution.
OCGA § 17-14-7 (b). But a defendant can “waive any error in the decision of the trial
court to decide the question of restitution as a part of the sentencing hearing, rather
than in a separate and distinct hearing.” (Citations and punctuation omitted.) Wilson
v. State, __ Ga. App. __ (2) (842 SE2d 521, 524-525 (2)) (2020); see also Futch v.
State, 314 Ga. App. 294, 297-298 (3) (a) (723 SE2d 714) (2012); Ezebuiro v. State,
308 Ga. App. 282, 285-286 (2) (a) (707 SE2d 182) (2011).
Here, there was no dispute about the amount of restitution due, thus eliminating
the trial court’s obligation to conduct a hearing. Moreover, Townsend never requested
a hearing, nor did he move for a continuance or ask to present any evidence with
regard to restitution. Futch, 314 Ga. App. at 297-298 (3) (a); Ezebuiro, 308 Ga. App.
at 285-286 (2) (a). In fact, he requested that he be able to make restitution, and he
testified that he had the funds to make payment. At sentencing, Townsend informed
the trial court that “we did make an offer and showed proof that I had all the funds to
provide you the 200,000. . . . When I offered to pay the 200,000 in cash and went
12
across the street to Wells Fargo and showed proof that I had the funds to reimburse
or make everything whole[.]” And in his own testimony at trial, Townsend stated that
he was willing to pay the victims the $200,000 to “cash [the victims] out and buy
their ownership interest back.” To argue now that a hearing was required for the trial
court to determine the amount of restitution – an amount that Townsend himself
conceded was correct – is disingenuous.
Although we find no error in the imposition of restitution, we note that there
is a scrivener’s error in the sentencing sheet. The trial court ordered restitution be
paid to “Jayhawk Sports,” but there was no testimony at trial that JayHawk Sports
was the victim in this case. The proper remedy in such case is to remand for the trial
court to correct the error. Cooper v. State, 352 Ga. App. 783, 791 (4) (835 SE2d 724)
(2019).
For the foregoing reasons, we affirm the trial court’s order awarding restitution,
vacate the convictions and sentence imposed on the theft by taking counts, and
remand for the trial court to merge those convictions and resentence Townsend
accordingly, as well as to correct a scrivener’s error in the restitution order.
Judgment affirmed in part, vacated in part, and case remanded with direction.
Reese, P. J., and Colvin, J., concur.
13