SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY, 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. http://www.gaappeals.us/rules/
March 6, 2015
In the Court of Appeals of Georgia A14A1560. GRAHAM v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Alethea Graham was convicted of forgery in the first degree.
She appeals, challenging the sufficiency of the evidence, the allowance of hearsay
testimony, the constitutionality of the forgery statute, a jury charge on the uttering
element of first degree forgery, the denial of an appeal bond, and the denial of her
constitutional right to a speedy trial. But there was enough evidence to support the
verdict, the testimony allowed was not hearsay, the constitutionality of the statute was
not timely raised, the jury charge was a correct statement of the law, and the trial
court did not abuse its discretion in denying an appeal bond. Accordingly, we affirm
in part. However, the trial court did not make the requisite findings of fact and conclusions of law in determining the constitutional speedy trial issue, and we thus
remand the case for the trial court to enter a proper order on that issue.
1. Sufficiency of the evidence.
Graham enumerates that the trial court erred in denying her motions for both
a directed verdict of acquittal and a new trial because there was insufficient evidence
to support the verdict.
Whether an appellant is asking this court to review a lower court’s refusal to grant a new trial or its refusal to grant a motion for directed verdict, this court can only review the case under the standard espoused in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979) to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.
Batten v. State, 295 Ga. 442, 444 (1) (761 SE2d 70) (2014) (citations omitted).
So viewed, the evidence shows that Graham’s father, Nathaniel Graham, Sr.,
lived in the High Point Crossing Apartments in Augusta, Georgia. On March 31,
2009, he fell inside his apartment and suffered a brain injury. He was admitted to the
Veteran’s Administration hospital in Augusta. According to a hospital administrator,
Graham represented herself as being the guardian of her father and the hospital had
a document on file that purportedly appointed her as such.
2 Approximately two weeks after the father’s injury, Graham’s brother Nathaniel
and sister Lakenya went to visit their father in the hospital, and a hospital employee
showed them the purported guardianship document. The document appeared to be
letters of guardianship issued in 2002 by the Probate Court of Gwinnett County,
finding Nathaniel Graham, Sr., to be incapacitated and designating Graham as his
guardian. Graham’s siblings were suspicious of the document’s authenticity because
their father had never lived in Gwinnett County.
Graham’s sister took a copy of the purported letters of guardianship to the
probate court in Gwinnett County. The chief clerk of the probate court testified that
the document appeared suspect, did not appear to be any kind of record from that
court, had markings and stamps that are not used by that court, and had an
unrecognizable judge’s signature. The chief clerk further testified that she conducted
a search of the probate court records going back to the 1950’s and determined that
Graham’s name did not appear anywhere in the records and that no guardianship had
ever been filed for Nathaniel Graham, Sr., in that court.
The Judge of the Gwinnett County Probate Court testified that he had not
signed the Graham guardianship document and that his purported signature on it was
a forgery. He also testified, and the state introduced documentary evidence showing,
3 that the document appeared to be an altered copy of actual letters of guardianship that
had been issued by the judge in an unrelated case involving a different ward and
guardian.
An employee of the Richmond County Probate Court testified that in April
2009, a woman matching Graham’s description came to the court with paperwork
from the Gwinnett County Probate Court purportedly showing that she was the
guardian of her father. The woman inquired about transferring the guardianship to
Richmond County. But the employee thought the papers looked odd and had been
altered, so she contacted the Gwinnett court and learned that the documents were not
valid. The employee testified that the purported Gwinnett County letters of
guardianship appointing Graham as her father’s guardian may be the document that
she had seen.
The former assistant manager of the High Point Crossing Apartments testified
that after Graham’s father was injured and taken to the hospital, Graham came to the
apartment complex office with paperwork seeking access to her father’s apartment.
The manager put the papers in the father’s file and gave Graham a key to the
apartment. When the assistant manager subsequently looked in the file, she saw the
4 purported letters of guardianship from Gwinnett County, which had not previously
been in the file. She later learned that the guardianship document was fake.
The prior version of the forgery statute, OCGA § 16-9-1, applies to this case.1
It provides that
a person commits the crime of first-degree forgery if “with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.”
Martinez v. State, 325 Ga. App. 267, 269 (1) (a) (750 SE2d 504) (2013) (quoting
OCGA § 16-9-1 (a) (2007)).
The crux of Graham’s challenge to the sufficiency of the evidence is that there
was no direct eyewitness testimony that she possessed or uttered the forged letters of
guardianship. But “[f]orgery . . . may be proved by circumstantial evidence.” Hudson
v. State, 188 Ga. App. 684, 689 (2) (374 SE2d 212) (1988) (citations and punctuation
omitted). In this case, Graham was named as the guardian in the fraudulent letters of
guardianship, there was direct evidence that she claimed to be her father’s guardian,
and as recounted above, there was ample circumstantial evidence that she possessed
1 The amended code section became effective July 1, 2012, and applies to offenses occurring on or after that date. See Ga. L. 2012, p. 899.
5 and uttered that falsified document. Accordingly, the evidence “was sufficient for a
rational trier of fact to find [Graham] guilty beyond a reasonable doubt of forgery in
the first degree.” Martinez, supra at 270 (1) (a) (citations and punctuation omitted).
See also Hudson, supra at 689-690 (2) (although circumstantial, ample evidence to
support guilty verdict as to first degree forgery).
2. Hearsay.
In three separate enumerations, Graham argues that the trial court erred in
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SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY, 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. http://www.gaappeals.us/rules/
March 6, 2015
In the Court of Appeals of Georgia A14A1560. GRAHAM v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Alethea Graham was convicted of forgery in the first degree.
She appeals, challenging the sufficiency of the evidence, the allowance of hearsay
testimony, the constitutionality of the forgery statute, a jury charge on the uttering
element of first degree forgery, the denial of an appeal bond, and the denial of her
constitutional right to a speedy trial. But there was enough evidence to support the
verdict, the testimony allowed was not hearsay, the constitutionality of the statute was
not timely raised, the jury charge was a correct statement of the law, and the trial
court did not abuse its discretion in denying an appeal bond. Accordingly, we affirm
in part. However, the trial court did not make the requisite findings of fact and conclusions of law in determining the constitutional speedy trial issue, and we thus
remand the case for the trial court to enter a proper order on that issue.
1. Sufficiency of the evidence.
Graham enumerates that the trial court erred in denying her motions for both
a directed verdict of acquittal and a new trial because there was insufficient evidence
to support the verdict.
Whether an appellant is asking this court to review a lower court’s refusal to grant a new trial or its refusal to grant a motion for directed verdict, this court can only review the case under the standard espoused in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979) to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.
Batten v. State, 295 Ga. 442, 444 (1) (761 SE2d 70) (2014) (citations omitted).
So viewed, the evidence shows that Graham’s father, Nathaniel Graham, Sr.,
lived in the High Point Crossing Apartments in Augusta, Georgia. On March 31,
2009, he fell inside his apartment and suffered a brain injury. He was admitted to the
Veteran’s Administration hospital in Augusta. According to a hospital administrator,
Graham represented herself as being the guardian of her father and the hospital had
a document on file that purportedly appointed her as such.
2 Approximately two weeks after the father’s injury, Graham’s brother Nathaniel
and sister Lakenya went to visit their father in the hospital, and a hospital employee
showed them the purported guardianship document. The document appeared to be
letters of guardianship issued in 2002 by the Probate Court of Gwinnett County,
finding Nathaniel Graham, Sr., to be incapacitated and designating Graham as his
guardian. Graham’s siblings were suspicious of the document’s authenticity because
their father had never lived in Gwinnett County.
Graham’s sister took a copy of the purported letters of guardianship to the
probate court in Gwinnett County. The chief clerk of the probate court testified that
the document appeared suspect, did not appear to be any kind of record from that
court, had markings and stamps that are not used by that court, and had an
unrecognizable judge’s signature. The chief clerk further testified that she conducted
a search of the probate court records going back to the 1950’s and determined that
Graham’s name did not appear anywhere in the records and that no guardianship had
ever been filed for Nathaniel Graham, Sr., in that court.
The Judge of the Gwinnett County Probate Court testified that he had not
signed the Graham guardianship document and that his purported signature on it was
a forgery. He also testified, and the state introduced documentary evidence showing,
3 that the document appeared to be an altered copy of actual letters of guardianship that
had been issued by the judge in an unrelated case involving a different ward and
guardian.
An employee of the Richmond County Probate Court testified that in April
2009, a woman matching Graham’s description came to the court with paperwork
from the Gwinnett County Probate Court purportedly showing that she was the
guardian of her father. The woman inquired about transferring the guardianship to
Richmond County. But the employee thought the papers looked odd and had been
altered, so she contacted the Gwinnett court and learned that the documents were not
valid. The employee testified that the purported Gwinnett County letters of
guardianship appointing Graham as her father’s guardian may be the document that
she had seen.
The former assistant manager of the High Point Crossing Apartments testified
that after Graham’s father was injured and taken to the hospital, Graham came to the
apartment complex office with paperwork seeking access to her father’s apartment.
The manager put the papers in the father’s file and gave Graham a key to the
apartment. When the assistant manager subsequently looked in the file, she saw the
4 purported letters of guardianship from Gwinnett County, which had not previously
been in the file. She later learned that the guardianship document was fake.
The prior version of the forgery statute, OCGA § 16-9-1, applies to this case.1
It provides that
a person commits the crime of first-degree forgery if “with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.”
Martinez v. State, 325 Ga. App. 267, 269 (1) (a) (750 SE2d 504) (2013) (quoting
OCGA § 16-9-1 (a) (2007)).
The crux of Graham’s challenge to the sufficiency of the evidence is that there
was no direct eyewitness testimony that she possessed or uttered the forged letters of
guardianship. But “[f]orgery . . . may be proved by circumstantial evidence.” Hudson
v. State, 188 Ga. App. 684, 689 (2) (374 SE2d 212) (1988) (citations and punctuation
omitted). In this case, Graham was named as the guardian in the fraudulent letters of
guardianship, there was direct evidence that she claimed to be her father’s guardian,
and as recounted above, there was ample circumstantial evidence that she possessed
1 The amended code section became effective July 1, 2012, and applies to offenses occurring on or after that date. See Ga. L. 2012, p. 899.
5 and uttered that falsified document. Accordingly, the evidence “was sufficient for a
rational trier of fact to find [Graham] guilty beyond a reasonable doubt of forgery in
the first degree.” Martinez, supra at 270 (1) (a) (citations and punctuation omitted).
See also Hudson, supra at 689-690 (2) (although circumstantial, ample evidence to
support guilty verdict as to first degree forgery).
2. Hearsay.
In three separate enumerations, Graham argues that the trial court erred in
allowing her siblings and a hospital administrator to give hearsay testimony about a
hospital employee’s statement that Graham had presented the purported guardianship
document to the hospital. However, as the state noted and as the trial court correctly
found, the testimony was not hearsay because it was not offered to prove the truth of
the matter asserted.
OCGA § 24-8-801 (c) provides: “‘Hearsay’ means a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Here, the testimony concerning the out-of-
court statement was not offered to prove that Graham had given the falsified
document to the hospital. Rather, it was offered to explain how Graham’s siblings
learned of the document and their sister’s purported guardianship, and to explain their
6 investigation into the authenticity of the document. Accordingly, the testimony did
not constitute hearsay because the state did not offer “the words for the truth of their
content.” Herieia v. State, 297 Ga. App. 872, 875 (2) (678 SE2d 548) (2009) (citation
omitted).
And contrary to Graham’s confrontation clause argument, since the testimony
was not hearsay, it did not violate her constitutional right to confront witnesses. “The
Confrontation Clause does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted. Under these circumstances, the
trial court did not violate [Graham’s] right to confront and cross-examine a witness
by admitting the [non-hearsay] testimony of [the witnesses].” Jennings v. State, 285
Ga. App. 774, 776 (1) (648 SE2d 105) (2007) (citations and punctuation omitted).
3. Constitutional challenge to forgery statute.
Graham complains that the trial court erred in denying her motion in arrest of
judgment challenging the forgery statute as constitutionally vague. However, the
Georgia Supreme Court, in an order transferring the case to this court, ruled that
Graham had “waived her constitutional challenge to the forgery statute under which
she was convicted by raising it for the first time in a motion in arrest of judgment.
7 Perez-Castillo v. State, 275 Ga. 124 (562 SE2d 184) (2002).” Accordingly, this claim
of error presents nothing for us to review.
4. Jury charge.
Graham contends that the term “utter” means only to speak, and therefore the
trial court erred in charging the jury that the first degree forgery element of “[u]ttering
is synonymous with the words pass or tender.” However, “this objection is without
merit because the words ‘pass or tender’ are synonymous with the words ‘utter and
publish.’ If the accused uttered the forged [document], he published it. If he passed
it, he uttered and published it; and if he uttered and published and passed it, he
necessarily tendered it.” Smith v. State, 13 Ga. App. 663, 667 (79 SE 764) (1913). See
also Warren v. State, 309 Ga. App. 596, 597 (2) (711 SE2d 108) (2011) (forged
document may be uttered by offering directly or indirectly, by words or actions, such
document as good). Accordingly, “it was not erroneous for the trial court to charge
using the additional . . . term[s pass or tender].” Crowder v. State, 218 Ga. App. 630,
632 (3) (462 SE2d 754) (1995).
5. Appeal bond.
Graham claims that the trial court erred in denying her request for an appeal
bond. The claim is without merit.
8 “[T]here is no constitutional right to bond pending appeal.” Browning v. State,
254 Ga. 478, 479 (2) (330 SE2d 879) (1985) (citations omitted). However, under
OCGA § 5-6-45 (a), a criminal defendant may be given an appeal bond if the sentence
is bailable. The question whether to grant bond after conviction is committed to the
discretion of the convicting court, and an appellate court will not control that
discretion unless it has been abused. Wade v. State, 218 Ga. App. 377, 378 (2) (461
SE2d 314) (1995) (citations and punctuation omitted). Here, Graham has made no
showing of such an abuse of discretion in the denial of her request for an appeal bond.
6. Speedy trial.
Graham claims she was denied her constitutional right to a speedy trial. The
record shows that Graham was indicted in June 2009. Nearly four years later, in
March 2013, Graham filed a constitutional speedy trial demand and alternatively
sought dismissal of the charges for the delay. The record does not contain an order
explicitly denying the motion to dismiss the charges, but the trial court implicitly
denied the motion by proceeding with a jury trial on April 23, 2013. Graham claimed
a denial of her constitutional right to a speedy trial in her motion for new trial, which
the trial court summarily denied.
9 “The framework for determining constitutional speedy trial claims requires the
trial court to apply the two-tier analysis enunciated in Barker [v. Wingo, 407 U. S.
514, 522-523 (II) (92 SCt 2182, 33 LE2d 101) (1972)], and Doggett v. United States,
505 U. S. 647, 651 (112 SCt 2686, 120 LE2d 520) (1992).” Cawley v. State, 324 Ga.
App. 358, 359 (750 SE2d 428) (2013) (citations omitted).
The weighing of the Barker factors is committed to the substantial discretion of the trial court, and its ultimate judgment is reviewed on appeal only for an abuse of that discretion. It is imperative, therefore, that in cases implicating a defendant’s constitutional right to speedy trial, the trial court enter findings of fact and conclusions of law consistent with Barker. Absent such findings, there is no exercise of discretion for this [c]ourt to review. Accordingly, we have vacated and remanded cases where the trial court failed to enter written findings of fact and conclusions of law in accordance with Barker.
Cawley, supra at 360 (citations and punctuation omitted).
In this case, there is no order from the trial court that contains such findings of
fact and conclusions of law. Accordingly, “we affirm the finding of guilt in light of
our rulings above, and we remand for entry of a proper order addressing the speedy
trial motion pursuant to Barker v. Wingo.” Smith v. State, 325 Ga. App. 405, 411 (5)
(750 SE2d 758) (2013) (footnote omitted). See also Culbreath v. State, 328 Ga. App.
153, 159-162 (4) (761 SE2d 557) (2014).
10 Judgment affirmed in part and case remanded with direction. Andrews, P. J.,
and Ray, J., concur.