Marks v. State

623 S.E.2d 504, 280 Ga. 70, 2005 Fulton County D. Rep. 3746, 2005 Ga. LEXIS 861
Supreme Court of Georgia·Decided December 1, 2005·No. S05A1729·Published·Cited by 35 cases

Opinions

Thompson, Justice.

A jury convicted Nicholas Marks of multiple violations of OCGA § 30-5-8 (a) (1) (unlawful to abuse, neglect, or exploit elder persons); OCGA § 15-19-51 (a) (7) (unauthorized practice of law to use title of attorney when one is not a duly licensed attorney); and other crimes stemming from the financial exploitation of Leonard Stewart. Via motions to dismiss the indictment, Marks challenged the constitutionality of OCGA § 30-5-8 (a) (1) on vagueness and equal protection grounds, and the constitutionality of OCGA § 15-19-51 (a) (7) on First Amendment grounds. The trial court upheld the constitutionality of OCGA § 30-5-8 (a) (1) on equal protection grounds, and the constitutionality of OCGA § 15-19-51 (a) (7) on First Amendment grounds. Marks has appealed to this Court, asserting various constitutional claims, and enumerating other issues on appeal. Finding no error, we affirm.

In early March 2004, Leonard Stewart, an 89-year-old widower, was dining alone in a restaurant in DeEalb County, Georgia, when he was approached by a woman who invited him to join her and her male [71] companion at their table.1 The two introduced themselves to Mr. Stewart as Anne and Ron Russo (hereinafter “Marks”2), and claimed to be niece and uncle. An employee of the restaurant recalled the encounter and he described the woman as “very attractive” in her “early 50’s, late 40’s.” Marks identified himself as an attorney, and the three chatted for about an hour.

Over the next few weeks, Marks spent six or eight hours a day with Mr. Stewart. During that time, Marks offered to do legal work in exchange for Mr. Stewart’s 1990 automobile. Mr. Stewart signed the title document and relinquished control of the vehicle to Marks. Marks drove Mr. Stewart to various banks where Marks identified himself to bank employees as Mr. Stewart’s attorney, and caused Mr. Stewart to close certain joint accounts and reopen them as individual accounts, and to remove certain items of jewelry from his safety deposit box and to give that jewelry to Marks. Mr. Stewart testified that he gave his credit cards to Marks “to loan him a few dollars”; instead, Marks charged approximately $15,000 worth of goods to those cards without authorization. In addition, Marks used Mr. Stewart’s credit card to send a $5,700 Western Union money order to Marks’ relative, Sam Marks, in Illinois.

Mr. Stewart’s friend, Beth Barnett, had been cosignatory on his bank accounts, and stock holdings for the past several years. Mr. Stewart had conveyed an undivided one-half interest in his home property to her some years earlier. In addition, she held his power of attorney and was named as executrix and primary beneficiary under Mr. Stewart’s will. Marks convinced Mr. Stewart to obtain a temporary protective order against Ms. Barnett, remove her from his bank accounts, and revoke her power of attorney. Marks also persuaded Mr. Stewart to make a new will, “temporarily” naming Marks’ daughter, Rachel Marks, as executrix and sole beneficiary. Marks retained an attorney and he took Mr. Stewart to that attorney’s office for the purpose of drafting the new will.3 At Marks’ request, the attorney also prepared a quitclaim deed purporting to transfer to Mr. Stewart, all of Ms. Barnett’s interest in his home property, as well as a renunciation of the power of attorney to Ms. Barnett. Marks subsequently forged Ms. Barnett’s signature on the quitclaim deed and then had the forged signature notarized unlawfully.

[72] Also during these few weeks, Marks’ associate, “Anne Russo,” had dinner with Mr. Stewart on two occasions. After that, she proposed marriage to him and asked him to move into her new home in Florida. Marks also took Mr. Stewart to a Ford dealership where he persuaded Mr. Stewart to make a $500 down payment on a new Ford Thunderbird automobile for Anne, and to sign a buyer’s agreement to pay the $34,000 balance in cash.

When Ms. Barnett and the officers at Mr. Stewart’s bank became suspicious of Marks’ conduct, they contacted the DeKalb Solicitor-General’s office, which quickly initiated an investigation. On March 18, 2004, Marks drove Mr. Stewart to the Horizon Bank in Mr. Stewart’s Oldsmobile. Marks approached a bank officer, identified himself as Mr. Stewart’s attorney, and requested that a cashier’s check be issued on Mr. Stewart’s account. The police immediately arrested Marks. He had in his possession a briefcase which contained: the forged quitclaim deed which he had filed in the Superior Court of DeKalb County; the revoked power of attorney; approximately 40 blank checks from Mr. Stewart’s account at SunTrust Bank; Mr. Stewart’s original will naming Ms. Barnett as executrix and beneficiary; and a statement from Mr. Stewart’s securities account at SunTrust Bank showing a value of $151,185.60. The executed title to Mr. Stewart’s Oldsmobile was found in the vehicle. Marks signed a Miranda waiver and told the police that he was a retired attorney from Connecticut, and he denied knowing anyone named Anne.

1. In several enumerations of error, Marks asserts that the evidence against him was insufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

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Marks v. State, 623 S.E.2d 504, 280 Ga. 70, 2005 Fulton County D. Rep. 3746, 2005 Ga. LEXIS 861 (Ga. 2005).

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