FOURTH DIVISION DOYLE, P. J., MERCIER and COOMER, JJ.
NOTICE: Motions for reconsideration m us t be physically re ceived in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
May 24, 2019
In the Court of Appeals of Georgia A19A0637. THE STATE v. GREEN.
MERCIER, Judge.
On August 22, 2018, the trial court dismissed a 15-count indictment filed against
Erkes Antwon Green on statute of limitation grounds. The State appeals, arguing that
the charges are not time-barred and that the trial court erred in failing to hold an
evidentiary hearing before dismissing the indictment.1 For reasons that follow, we
reverse in part, vacate in part, and remand the case for further proceedings.
On appeal from an order dismissing an indictment, we “must accept the trial court’s
findings on disputed facts and witness credibility unless those findings are clearly
erroneous.” Martinez v. State, 306 Ga. App. 512, 522 (2) (702 SE2d 747) (2010)
1 Pursuant to OCGA 5-7-1 (a) (1), the State may file a direct appeal “[f]rom [a superior court] order, decision, or judgment . . . dismissing any indictment[.]” (citation and punctuation omitted). We review the legal issues underlying the trial
court’s decision de novo. See id.
The record shows that in January 2013, a SunTrust Bank investigator met with
a detective from the Atlanta Police Department to report suspected fraud involving a
SunTrust bank account. The detective commenced a fraud investigation, which
produced evidence of identity theft and led police to an apartment leased by Green.
The police executed a search warrant at Green’s apartment on February 28, 2013,
discovering “a very active identity fraud and theft operation,” including “[a] huge
amount of well organized evidence of Identity Fraud and other crimes[.]”
The State indicted Green in 2014 on two counts of identity fraud, but those
allegations were nolle prossed in 2016 pending “additional investigation[.]” The State
re-indicted Green on February 14, 2017, charging him in a 33-count indictment with
theft and identity fraud involving multiple victims. As the date for trial approached,
however, the State determined that 18 of the 33 counts had been improperly worded.
It thus indicted the case a third time on January 30, 2018, dropping the 18 improperly-
worded counts and re-alleging the remaining 15 counts. The allegations set forth in the
2018 indictment are identical to the 15 properly-worded counts in the 2017 indictment.
2 Green subsequently decided to plead guilty to the charges in the 2018
indictment. He began to enter his plea on February 5, 2018, but noted during the guilty
plea hearing that the trial court had not yet ruled on his motion to dismiss the
indictment as time-barred. Green did not contest the State’s assertion that if the 2017
indictment was timely filed on February 14, 2017, the 2018 indictment would relate
back to that date for statute of limitation purposes. See State v. Outen, 296 Ga. 40,
45 (3) (764 SE2d 848) (2014) (subsequent indictment relates back to date of timely,
still-pending prior indictment if “the later indictment does not broaden or otherwise
substantially amend the original charges”); Barghi v. State, 334 Ga. App. 409, 411 (1)
(779 SE2d 373) (2015) (where amended accusation alleged the same offense date as
the original accusation, involved the same conduct, and made only slight changes to
the original accusation’s wording, the amended accusation “did not commence a new
prosecution, but rather, constituted a continuation of the original prosecution”). He
argued, however, that the statute of limitation expired before February 14, 2017,
undermining any timeliness claim based on this relation-back date.
The trial court suspended the plea proceedings and ordered the parties to file
factual chronologies of the case, including stipulated facts where possible. The parties
3 submitted their chronologies, then appeared at a trial calendar call, where the trial court
began to address the statute of limitation issue. At that point, the prosecutor stated:
[I]f we are in a statute of limitations hearing . . . the State believes that would be an evidentiary hearing and it would need to be set for a date certain so that the State could have witnesses here for the hearing and then the Court would receive evidence on that matter from the witnesses from the witness stand rather than statements from Counsel from both sides.
Noting that the parties had prepared case chronologies, the trial court responded
that it “would be able to resolve any issues of fact not stipulated” and that there was
“[n]o need for witnesses.” The hearing proceeded, focusing on the parties’
chronologies and argument of counsel. In support of his motion, Green asserted, and
the State did not dispute, that a four-year limitation period applied to the allegations in
the 2018 indictment. See OCGA § 17-3-1(c) (generally, prosecutions for felonies not
punishable by death or life imprisonment must commence within four years after the
commission of the crime). He further claimed that because three of the eleven victims
listed in the 2018 indictment had reported instances of identity theft to police by
January 24, 2013, the four-year limitation period for all counts commenced no later
4 than that date and ended prior to February 14, 2017. The trial court agreed and
dismissed all counts. .
To properly analyze Green’s statute of limitation claim, we must examine the
15 charges contained within the 2018 indictment individually. Dismissal of a multi-
count indictment in its entirety as time-barred is proper only if the applicable statute
of limitation bars all charges. See Martinez, supra at 523-524 (2) (reversing
convictions on some – but not all – charges in multi-count indictment based on the
statute of limitation). Each count must be reviewed independently to determine whether
it survives a motion to dismiss on statute of limitation grounds. See id.
1. Identity Fraud - Counts 1, 5 through 7, and 9 through 15. Pursuant to
OCGA § 16-9-121 (a) (1), a person commits identity fraud when he “willfully and
fraudulently . . . [w]ithout authorization or consent, uses or possesses with intent to
fraudulently use identifying information concerning a person.” This subsection thus
identifies two ways to engage in identity fraud: by using another person’s identifying
information or by possessing such information with the intent to fraudulently use it.
Counts 1, 5 through 7, and 9 through 15 focus on the second method for
committing the offense – possession of the information. Each count alleges that on
February 28, 2013 (the day police executed the search warrant at Green’s apartment),
5 Green possessed with the intent to fraudulently use identifying information belonging
to various victims. These counts do not allege any prior fraudulent use of the personal
information. Rather, the State contends that Green violated OCGA § 16-9-121 (a) (1)
on February 28, 2013, by possessing the victims’ identifying information on that day.
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FOURTH DIVISION DOYLE, P. J., MERCIER and COOMER, JJ.
NOTICE: Motions for reconsideration m us t be physically re ceived in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
May 24, 2019
In the Court of Appeals of Georgia A19A0637. THE STATE v. GREEN.
MERCIER, Judge.
On August 22, 2018, the trial court dismissed a 15-count indictment filed against
Erkes Antwon Green on statute of limitation grounds. The State appeals, arguing that
the charges are not time-barred and that the trial court erred in failing to hold an
evidentiary hearing before dismissing the indictment.1 For reasons that follow, we
reverse in part, vacate in part, and remand the case for further proceedings.
On appeal from an order dismissing an indictment, we “must accept the trial court’s
findings on disputed facts and witness credibility unless those findings are clearly
erroneous.” Martinez v. State, 306 Ga. App. 512, 522 (2) (702 SE2d 747) (2010)
1 Pursuant to OCGA 5-7-1 (a) (1), the State may file a direct appeal “[f]rom [a superior court] order, decision, or judgment . . . dismissing any indictment[.]” (citation and punctuation omitted). We review the legal issues underlying the trial
court’s decision de novo. See id.
The record shows that in January 2013, a SunTrust Bank investigator met with
a detective from the Atlanta Police Department to report suspected fraud involving a
SunTrust bank account. The detective commenced a fraud investigation, which
produced evidence of identity theft and led police to an apartment leased by Green.
The police executed a search warrant at Green’s apartment on February 28, 2013,
discovering “a very active identity fraud and theft operation,” including “[a] huge
amount of well organized evidence of Identity Fraud and other crimes[.]”
The State indicted Green in 2014 on two counts of identity fraud, but those
allegations were nolle prossed in 2016 pending “additional investigation[.]” The State
re-indicted Green on February 14, 2017, charging him in a 33-count indictment with
theft and identity fraud involving multiple victims. As the date for trial approached,
however, the State determined that 18 of the 33 counts had been improperly worded.
It thus indicted the case a third time on January 30, 2018, dropping the 18 improperly-
worded counts and re-alleging the remaining 15 counts. The allegations set forth in the
2018 indictment are identical to the 15 properly-worded counts in the 2017 indictment.
2 Green subsequently decided to plead guilty to the charges in the 2018
indictment. He began to enter his plea on February 5, 2018, but noted during the guilty
plea hearing that the trial court had not yet ruled on his motion to dismiss the
indictment as time-barred. Green did not contest the State’s assertion that if the 2017
indictment was timely filed on February 14, 2017, the 2018 indictment would relate
back to that date for statute of limitation purposes. See State v. Outen, 296 Ga. 40,
45 (3) (764 SE2d 848) (2014) (subsequent indictment relates back to date of timely,
still-pending prior indictment if “the later indictment does not broaden or otherwise
substantially amend the original charges”); Barghi v. State, 334 Ga. App. 409, 411 (1)
(779 SE2d 373) (2015) (where amended accusation alleged the same offense date as
the original accusation, involved the same conduct, and made only slight changes to
the original accusation’s wording, the amended accusation “did not commence a new
prosecution, but rather, constituted a continuation of the original prosecution”). He
argued, however, that the statute of limitation expired before February 14, 2017,
undermining any timeliness claim based on this relation-back date.
The trial court suspended the plea proceedings and ordered the parties to file
factual chronologies of the case, including stipulated facts where possible. The parties
3 submitted their chronologies, then appeared at a trial calendar call, where the trial court
began to address the statute of limitation issue. At that point, the prosecutor stated:
[I]f we are in a statute of limitations hearing . . . the State believes that would be an evidentiary hearing and it would need to be set for a date certain so that the State could have witnesses here for the hearing and then the Court would receive evidence on that matter from the witnesses from the witness stand rather than statements from Counsel from both sides.
Noting that the parties had prepared case chronologies, the trial court responded
that it “would be able to resolve any issues of fact not stipulated” and that there was
“[n]o need for witnesses.” The hearing proceeded, focusing on the parties’
chronologies and argument of counsel. In support of his motion, Green asserted, and
the State did not dispute, that a four-year limitation period applied to the allegations in
the 2018 indictment. See OCGA § 17-3-1(c) (generally, prosecutions for felonies not
punishable by death or life imprisonment must commence within four years after the
commission of the crime). He further claimed that because three of the eleven victims
listed in the 2018 indictment had reported instances of identity theft to police by
January 24, 2013, the four-year limitation period for all counts commenced no later
4 than that date and ended prior to February 14, 2017. The trial court agreed and
dismissed all counts. .
To properly analyze Green’s statute of limitation claim, we must examine the
15 charges contained within the 2018 indictment individually. Dismissal of a multi-
count indictment in its entirety as time-barred is proper only if the applicable statute
of limitation bars all charges. See Martinez, supra at 523-524 (2) (reversing
convictions on some – but not all – charges in multi-count indictment based on the
statute of limitation). Each count must be reviewed independently to determine whether
it survives a motion to dismiss on statute of limitation grounds. See id.
1. Identity Fraud - Counts 1, 5 through 7, and 9 through 15. Pursuant to
OCGA § 16-9-121 (a) (1), a person commits identity fraud when he “willfully and
fraudulently . . . [w]ithout authorization or consent, uses or possesses with intent to
fraudulently use identifying information concerning a person.” This subsection thus
identifies two ways to engage in identity fraud: by using another person’s identifying
information or by possessing such information with the intent to fraudulently use it.
Counts 1, 5 through 7, and 9 through 15 focus on the second method for
committing the offense – possession of the information. Each count alleges that on
February 28, 2013 (the day police executed the search warrant at Green’s apartment),
5 Green possessed with the intent to fraudulently use identifying information belonging
to various victims. These counts do not allege any prior fraudulent use of the personal
information. Rather, the State contends that Green violated OCGA § 16-9-121 (a) (1)
on February 28, 2013, by possessing the victims’ identifying information on that day.
As alleged, such crimes occurred within four years of February 14, 2017, the relation-
back date for the 2018 indictment. See Hayward-El v. State, 284 Ga. App. 125, 127
(1) (643 SE2d 242) (2007) (“In criminal cases, the statute of limitation runs from the
time of the crime to the time of the indictment.”) (citation and punctuation omitted).
The trial court, therefore, erred in dismissing Counts 1, 5 through 7, and 9 through 15
as time barred. See Barghi, supra at 411-412 (1) (statute of limitation did not bar
prosecution because amended accusation related back to accusation filed before
limitation period expired); Martinez, supra at 524 (2) (although certain counts in
indictment filed outside of limitation period were untimely, statute of limitation did not
bar prosecution for charge that related back to timely-filed indictment).
2. Theft by Receiving - Count 8. Count 8 alleges that on February 28, 2013,
Green “did unlawfully receive and retain stolen property, a 2010 Mercedes-Benz
E550,” in violation of OCGA § 16-8-8. By the indictment’s clear terms, the State
alleged that the crime occurred on February 28, 2013, within four years of the
6 February 14, 2017 relation-back date. Accordingly, this charge was not barred by the
statute of limitation, and the trial court erred in dismissing it. See Barghi, supra;
Martinez, supra.
3. Identity Fraud - Count 2. In Count 2, the State charged that Green
committed identity fraud on November 7, 2012, by using a particular victim’s
identifying information to purchase items from a furniture store. Without dispute, the
incident occurred over four years before February 14, 2017, the relation-back date for
the 2018 indictment. Count 2 alleges, however, that the crime was unknown until
February 28, 2013, a date within the four-year limitation period.
Pursuant to OCGA § 17-3-2 (2), the limitation period governing a prosecution
“does not include any period in which . . . [t]he person committing the crime is
unknown or the crime is unknown.” The State bears the burden of proving that an
otherwise time-barred allegation falls within an exception to the statute of limitation.
See State v. Crowder, 338 Ga. App. 642, 644-645 (791 SE2d 423) (2016). And when
a defendant files a pre-trial motion to dismiss or plea in bar challenging the State’s
reliance on a tolling provision, the trial court should conduct an evidentiary hearing to
7 resolve the tolling issue.2 See Jenkins v. State, 278 Ga. 598, 604 (1) (B) (604 SE2d
789) (2004).
The 2018 indictment relies on OCGA § 17-3-2 (2) to bring Count 2 within the
statute of limitation, and Green challenged this reliance in his motion to dismiss. The
trial court heard argument from the parties at a hearing held on Green’s motion. But
it declined the State’s request for a full evidentiary hearing with witness testimony,
leaving the record silent as to when the crime alleged in Count 2 – fraudulent use of the
victim’s identifying information to purchase items at the furniture store on November
7, 2012 – became known.
We recognize that “the knowledge of the victim . . . is imputed to the State” for
statute of limitation purposes, Crowder, supra, and the parties stipulated that the victim
in Count 2 knew by January 2013 that someone had used his identifying information
to open several credit card accounts and file a fraudulent tax return. No evidence,
however, reveals when the victim or authorities first learned of the identity fraud
2 As explained by our Supreme Court: “If a defendant prevails on a pretrial plea in bar on the statute of limitations, the charge should be dismissed; if the State prevails on this issue before trial, the defendant may still require the State to prove at trial that the charge is not barred by the statute of limitations.” Jenkins, infra (footnotes omitted).
8 associated with the furniture store purchases. Accordingly, because the trial court did
not give the State an opportunity to present evidence, we vacate the order dismissing
Count 2 and remand the case with instruction that the trial court hold an evidentiary
hearing on this issue. See Moore v. State, 294 Ga. App. 570, 576-577 (2) (669 SE2d
498) (2008) (vacating order and remanding case for evidentiary hearing where trial
court did not permit the State to present evidence on defendant’s special demurrer).
4. Computer Theft and Theft by Taking - Counts 3 and 4. Counts 3 and 4 also
relate to the November 7, 2012 incident involving the furniture store. Count 3 alleges
that Green committed computer theft by unlawfully using “a computer and a computer
network, with the knowledge that such use was without authority and with the intention
of taking and appropriating the property of another, the furniture store, with the
intention of depriving the owner of possession of said property[.]” Count 4 alleges that
Green committed theft by taking by unlawfully taking “the property of [the furniture
store], with the intention of depriving said owner of said property[.]” Both counts
specify that the crimes occurred on November 7, 2012, but were unknown until
February 28, 2013.
Once again, the record contains no evidence regarding when the victim (the
furniture store) or authorities knew about these crimes, and the trial court did not give
9 the State an opportunity to present witness testimony or other evidence on the issue.
We thus vacate the order dismissing Counts 3 and 4 and remand the case for an
evidentiary hearing on Green’s claim that the statute of limitation barred prosecution
of these counts.
Judgment as to Counts 1 and 5 through 15 reversed. Judgment as to Counts
2 through 4 vacated, and case remanded with direction. Doyle, P. J., and Coomer,
J., concur.