Graf v. State

760 S.E.2d 613, 327 Ga. App. 598, 2014 Fulton County D. Rep. 1613, 2014 WL 2723933, 2014 Ga. App. LEXIS 386
CourtCourt of Appeals of Georgia
DecidedJune 17, 2014
DocketA14A0530
StatusPublished
Cited by6 cases

This text of 760 S.E.2d 613 (Graf v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graf v. State, 760 S.E.2d 613, 327 Ga. App. 598, 2014 Fulton County D. Rep. 1613, 2014 WL 2723933, 2014 Ga. App. LEXIS 386 (Ga. Ct. App. 2014).

Opinion

Branch, Judge.

On appeal from her conviction for arson and possession of cocaine and marijuana, Pamela Graf argues that the evidence was insufficient as to the arson count and that the trial court erred when it joined the arson and cocaine cases for trial, when it limited a defense expert’s testimony, and when it failed to hold a restitution hearing. We find no error and affirm.

[599]*599“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted).

So viewed, the record shows that at 4:30 a.m. on January 18, 2009, the Forsyth County Fire Department was called to a fire at a house owned by Graf. No one was home at the time of the fire, which completely destroyed the house. After Graf’s father arrived at the scene, he gave firefighters Graf’s contact information, hut she was not reached until that afternoon, when she told the county fire investigator that she was in Washington, D.C. for the inauguration of President Obama and that she believed that her house might have been burned as a result of her support for the president. An arson investigator hired by State Farm Insurance concluded that the fire was “incendiary,” or intentionally set, with gasoline used as an accelerant. A State Farm adjuster noted the presence of “indicators of possible insurance fraud” including the occurrence of the fire after 11:00 p.m., the racial slurs found sprayed on the boundary fence of the property, and the unexplained absence of Graf, her children, and the family cats at the time of the fire. Both the county investigator and the State Farm adjuster noted that Graf was unusually unconcerned with and unemotional about her loss.

In an interview with the fire chief two days later, Graf could not specify the time and day at which she left her house, but said that she and her companion, Steve Strobel,1 had traveled to Washington in Strobel’s van, sleeping in the van on the way and arriving at 3:00 p.m. on January 18. Strobel’s cell phone records showed, however, that the couple had remained at or around his home in Winder as late as 2:28 a.m. on the morning of the 18th; that they had departed Winder at some point after that, eventually arriving in Charlotte, North Carolina by 10:15 a.m. on the 18th; and that Strobel remained in the Charlotte area through the afternoon of the 18th, after which they returned to Winder by 5:46 p.m. on the 19th. A search warrant executed on the temporary residence Graf occupied after the fire also [600]*600recovered credit card receipts from a motel in Charlotte for the night of the 18th. A clerk testified that the credit card had been presented in person, and the car listed on the registration card was the same model as that in which Graf arrived at the search of the temporary residence. A partially smoked marijuana cigarette was found inside the residence, and 3.4 grams of cocaine was found in the pocketbook Graf was carrying when she was arrested for marijuana possession.

Although Graf did not mention anything to investigators about moving items out of her house, a search of Strobel’s residence recovered clothing, jewelry, furniture and documents belonging to Graf, including her children’s medical and school records that a police officer testified were of the type usually lost in a fire. Storage units rented to Strobel were substantially filled with Graf’s remaining possessions, including household items, furniture, wardrobe boxes, and family mementos. Dishes had been wrapped in newspaper dated two or three days before the fire, and mail postmarked as late as January 16 was also found. Graf’s son testified at trial that at a restaurant dinner a few days after the fire, Graf told her children to order whatever they wanted “because the insurance would pay for” the dinner and gave each of them a large garbage bag of possessions, including childhood mementos. Graf’s son and daughter both testified at trial that items present in the now-destroyed house at Christmas 2008 were found in Strobel’s home and in the storage units. Although she had not boarded any of her five cats during a New Year’s trip to Tybee Island, Graf boarded three of them on January 17, the day before the fire; took the fourth cat later that day to Strobel’s house; and left her garage door open for the fifth.

Graf’s ex-husband testified that although Graf had received a lump sum of approximately $220,000, not including alimony, in connection with the couple’s divorce in June 2005, Graf was complaining about a lack of money six months afterward. Graf’s alimony payments stopped in June 2008, six months before the fire. Graf’s financial advisor testified that Graf withdrew about $95,000 from her annuity account between December 2007 and December 2008, reducing that account’s value (together with depreciation) from $129,000 to $ 14,000. Graf had lost custody of her children due to her drug habit, which was estimated to cost her up to $100 per day, or more than $36,000 per year. The State Farm adjuster also testified that Graf had made three previous claims, two for stolen jewelry and one for a sewage overflow in her basement; that she had received a payment of $5,000 for each jewelry claim and that State Farm had also paid to have the basement remodeled; and that items described as stolen or destroyed in each of these claims were later recovered in Strobel’s [601]*601home and storage units.2 In the aftermath of the fire, Graf received $7,500 as an advance on the loss of her house’s contents and $3,535.50 as payment for living expenses. State Farm also paid the house’s outstanding mortgage balance of $201,357.01 to the mortgage holder.

Graf was charged with possession of cocaine, possession of one ounce or less of marijuana, and arson. Before trial, the State moved to have the drug cases and the arson case consolidated for trial. After a hearing, the trial court granted the motion. After a jury found Graf guilty on all three counts, she was convicted and sentenced to thirty years with twelve to serve. Her motion for new trial was denied.

1. Although Graf attacks the evidence against her as circumstantial, arson “can seldom be established by positive testimony,” and “the force to be given” to circumstances corroborating a defendant’s guilt is a question for the jury rather than this Court. Wade v. State, 195 Ga. 870, 877 (3) (25 SE2d 712) (1943) (citation omitted). The evidence outlined above, though circumstantial, authorized the jury to conclude that Graf knowingly damaged her house, which was both mortgaged and insured, by means of fire. As such, the evidence was sufficient to sustain Graf’s conviction for arson in the first degree. See OCGA § 16-7-60

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Bluebook (online)
760 S.E.2d 613, 327 Ga. App. 598, 2014 Fulton County D. Rep. 1613, 2014 WL 2723933, 2014 Ga. App. LEXIS 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graf-v-state-gactapp-2014.