William Smith v. State

• Court: Court of Appeals of Georgia
• Decided: June 26, 2013
• Docket: A13A0722
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER 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/

June 26, 2013

In the Court of Appeals of Georgia A13A0722. SMITH v. THE STATE.

MILLER, Judge.

Following a jury trial, William Smith was convicted of two counts of identity

fraud (OCGA § 16-9-121 (a) (1)) (2010), four counts of forgery in the second degree

(OCGA § 16-9-2 (a)) (2010), and one count of giving a false name to law

enforcement (OCGA § 16-10-25). Smith was also convicted of two additional counts

of second degree forgery as lesser included offenses of two first degree forgery

charges (OCGA § 16-9-1 (a)) (2010). Smith filed a motion for new trial, which the

trial court denied. On appeal, Smith contends that (1) the evidence was insufficient

to support his convictions for identity fraud, second degree forgery and giving a false

name, and (2) the trial court erred in giving a sua sponte charge on the lesser included

offense of forgery in the second degree. For the reasons that follow, we find that the evidence was insufficient to support Smith’s conviction for giving a false name and,

therefore, reverse that conviction. We affirm Smith’s convictions on the remaining

counts.

Viewed in the light most favorable to conviction,1 the evidence shows that in

February 2010, Smith, his cousin, Dwayne Murry, and Michael Flake, went to a Best

Buy store in Douglas County, Georgia. Smith, Murry and Flake took nearly $500 in

merchandise, including an iPod, to the cash register. Murry presented a forged check

and a fake Alabama identification card to the cashier to purchase the merchandise.

Both the check and identification card bore the name “Earnest Lawson.”

When it appeared that something was wrong with the transaction, Flake left the

store. Smith and Murry left the store shortly thereafter, and all three men tried to drive

off in a blue Ford Explorer. Smith was driving the vehicle.

Meanwhile, Best Buy employees reported the forged check, fake identification

card and tag number of the Ford Explorer to police. The first responding officer saw

Smith and his co-defendants run across the Best Buy parking lot and get into the

Explorer. The officer stopped the Explorer in the parking lot, removed Smith and his

1 Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2 co-defendants from the vehicle and took them into custody. At the time of his arrest,

Smith was in possession of a valid Georgia driver’s license in the name of “Jack

Spade.” When officers ran Smith’s fingerprints through the FBI database, however,

the fingerprints were associated with the name William Carmichael Smith.

The Explorer was impounded and an inventory search resulted in the discovery

of several gifts cards in the vehicle’s center console, including a gift card in the name

of William Smith. A detective who assisted in the inventory search also found a

checkbook containing 14-15 loose checks under the driver’s seat.2 The checks

appeared to be printed from a home computer, bore the name Ernest Lawson, Ernest

Construction or Lawson Construction, had account numbers from four different bank

accounts and were similar to the forged check that Smith and his co-defendants

presented at the Best Buy store.

The detective later determined that two of the account numbers on the checks

belonged to checking accounts owned by women and none of the account numbers

were connected to Ernest Lawson. The detective also contacted the Alabama

2 Murry, who pled guilty in this case, bought the checkbook, forged checks and his Alabama identification card from a guy on Craigslist for about $300.

3 Department of Motor Vehicles and ran several internet searches. He was never able

to identify Ernest Lawson.

At trial, the first identity fraud victim identified the account number listed on

seven of the checks found in the Explorer as her Wachovia checking account number.

The checks bore the check numbers: 10150, 10151, 10152, 10154, 10155, 10157 and

10158. Check number 10150 was made out to Office Depot for a laptop. The first

victim stated that she did not recognize the names Ernest Lawson or Lawson

Construction, did not know Smith or Murry, and did not give them or anyone

permission to use or possess her account number. The evidence also showed that a

similar fraudulent check drawn on the first victim’s account was used to purchase an

iPod at a Best Buy in Tucker, Georgia.

The second identity fraud victim identified the account number on two of the

checks found in the Explorer as hers These checks bore the check numbers 10160 and

10161. The second victim also testified that she did not know Smith or Murry and

never gave them or anyone else permission to use her checking account number.

At trial, the State also presented similar transaction evidence showing that

Smith, who is also known as “Jack Spade,” was arrested in February 2008 in

Greenville, South Carolina, for attempting to pass fraudulent checks at a department

4 store. In the course of their investigation, Greenville police recovered approximately

thirty-eight fraudulent drivers’ licenses and identification documents bearing Smith’s

picture. Greenville police also recovered counterfeit business checks and sales

receipts documenting Greenville area purchases, and a United States military roster

containing names, birth dates and Social Security numbers of approximately 46

military individuals. Smith admitted that he had manufactured approximately 500

counterfeit business checks, traveled to the Greenville area, and passed the counterfeit

checks at several stores. Smith subsequently pled guilty in federal court to passing

forged securities and possessing forged false identification documents.

1. Smith contends that the evidence was insufficient to support his convictions

for identity fraud (Counts 3 and 4), second degree forgery (Counts 5 - 8) and giving

a false name (Count 9). We agree in part and reverse Smith’s conviction for giving

a false name.

a. Identity Fraud - Counts 3 and 4

A person commits the offense of identity fraud when he or she willfully and

fraudulently without authorization or consent, uses or possesses with intent to

fraudulently use identifying information concerning an individual. See OCGA § 16-9-

21 (a) (1) (2010). As used in the financial identity fraud statutes, the term “identifying

5 information” includes checking account numbers. See OCGA § 16-9-120 (4) (D).

Venue for identity fraud will lie in any county where the person whose means of

identification or financial information was appropriated resides or is found, or in any

county in which any other part of the offense took place. See OCGA § 16-9-125;

Manhertz v. State, 317 Ga. App. 856, 862 (2) (734 SE2d 406) (2012). Moreover,

every person who intentionally aids or abets in the commission of a crime is a party

thereto and may be charged with and convicted of commission of the crime. See

OCGA § 16-2-20 (a).

Here, Smith was charged with two counts of identity fraud in that he willfully

and fraudulently possessed with the intent to use the checking accounts numbers of

the two identity fraud victims without their authorization or consent. The evidence

showed that Smith stood beside his co-defendant Murry when Murry attempted to

purchase an iPod at the Best Buy in Douglas County with a forged check and

fraudulent identification bearing the name “Earnest Lawson.” Shortly thereafter,

police found a checkbook containing 14-15 similar loose checks under the driver’s

seat of the Ford Explorer that Smith was driving when he and his co-defendants

attempted to leave the Best Buy.

6 The identity fraud victims identified their account numbers on several of the

loose checks, and they both testified that they did not know Smith and did not give

him or anyone permission to use or possess their bank account numbers. The

evidence also showed that a similar check drawn on the first identity fraud victim’s

checking account was used to buy an iPod at a Best Buy in Tucker, Georgia.

Additionally, the similar transaction evidence showed that Smith had prior

convictions for passing counterfeit checks. Accordingly, the evidence was sufficient

to support the jury’s verdict that Smith committed identity fraud either directly or as

a party to the crimes. See Manhertz, supra, 317 Ga. App. at 862-863 (2); see also Lee

v. State, 283 Ga. App. 826, 826-827 (1) (642 SE2d 876) (2007) (evidence supported

defendant’s identity fraud conviction where he ordered fraudulent payroll checks on

his former company’s account).

b. Second Degree Forgery - Counts 5 through 8

A person commits the offense of forgery in the second degree when with the 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.

7 OCGA § 16-9-2 (a) (2010). The statute does not require presentment or delivery of

the writing, but only requires proof that a person possessed a writing in a fictitious

name. See Velasquez v. State, 276 Ga. App. 527, 529 (2) (623 SE2d 721) (2005).

Although intent to defraud is commonly proved by showing delivery or use of the

writing, intent may be shown by a defendant’s contemporaneous attempts to present

other, related documents. See id. Flight is also a factor, and this Court has found

sufficient evidence to authorize a conviction for second degree forgery where the

defendant attempted to pass a forged check, possessed another forged check and

attempted to flee. See Browning v. State, 174 Ga. App. 759, 760-761 (3) (331 SE2d

625) (1985).

Here, Smith was charged with four counts of knowingly possessing checks in

the fictitious name of “Earnest Lawson” with the intent to defraud. The evidence

showed that all four of these checks were found under the driver’s seat of the

Explorer which Smith was driving when he and his co-defendants attempted to flee

the Best Buy after they presented a similar fraudulent check in an attempt to purchase

an iPod. Accordingly, the evidence was sufficient for the jury to determine that Smith

possessed the checks (jointly, if not solely) with the requisite intent to defraud. See

Browning, supra, 174 Ga. App. at 761 (3); see also Loden v. State, 199 Ga. App. 683,

8 690 (9) (406 SE2d 103) (1991) (defendant’s possession of fraudulent identification

credentials, combined with his use of those credentials in two fraudulent transactions

supported his convictions for second degree forgery).

c. False Name - Count 9

“A person who gives a false name, address, or date of birth to a law

enforcement officer in the lawful discharge of his official duties with the intent of

misleading the officer as to his identity or birthdate is guilty of a misdemeanor.”

OCGA § 16-10-25. “A conviction for violating OCGA § 16-10-25 must be supported

by some evidence that the name given in the subject incident was false. Generally this

is established by some proof of the defendant’s real name.” (Citation omitted.) Griffin

v. State, 291 Ga. App. 618, 620 (2) (662 SE2d 171) (2008).

Smith was charged with violating OCGA § 16-10-25 by giving the name “Jack

Spade” to the initial responding officer who stopped Smith and his co-defendants

when they tried to leave the Best Buy parking lot. The evidence showed that at the

time of his arrest, Smith was in possession of a valid Georgia driver’s license in the

name of “Jack Spade.” Moreover, the similar transaction evidence showed that Smith

was previously arrested and convicted under the name of “Jack Spade a/k/a William

Carmichael Smith” for passing counterfeit checks in South Carolina. Although

9 Smith’s fingerprints were associated with the name “William Carmichael Smith”

when run through the FBI database, no evidence showed that Smith gave either name

(“Jack Spade” or “William Smith”) to the initial responding officer, and no evidence

showed which of these names was Smith’s true name and which name was false.3 See

Preston v. State, 257 Ga. 42, 44 (1) (354 SE2d 135) (1987). Accordingly, the

evidence was insufficient to support Smith’s conviction for giving a false name.

2. Smith contends that the trial court erred in giving a sua sponte charge on the

lesser included offense of second degree forgery with regard to Counts 1 and 2 in

response to a jury question. We disagree.

During jury deliberations in this case, the trial court received a note from the

jury stating that most of the jurors believed that Smith was a party to the crimes and

asking whether they could change the first degree forgery charges (Counts 1 and 2)

to second degree forgery. Over trial counsel’s objection, the trial court recharged the

jury on first and second degree forgery and parties to a crime, and the trial court

prepared new verdict forms giving the jury the option on Counts 1 and 2 of finding

3 We note that, at his sentencing hearing, Smith presented a copy of an April 2002 name change order from Probate Court in the State of Alabama showing that he changed his name from William Carmichael Smith to Jack Spade.

10 Smith guilty or not guilty of either first degree forgery or the lesser included offense

of second degree forgery.

Trial courts are authorized to charge on lesser included offenses as long as the

charge is supported by the evidence and the indictment sufficiently places the

defendant on notice of the crimes which he must defend. See Brownlow v. State, 248

Ga. App. 366, 369 (3) (544 SE2d 472) (2001). Moreover, “[w]hen a jury requests

additional instructions on a point of law, the trial court in its discretion can recharge

in full or limit its recharge to the scope of the jury’s request.” (Citations omitted.)

Boynton v. State, 277 Ga. 130, 131 (2) (587 SE2d 3) (2003). “[W]here there is any

evidence, however slight, upon a particular point, it is not error to charge the law in

relation to that issue.” Cochran v. State, 276 Ga. App. 840 (625 SE2d 92) (2005).

Second degree forgery is necessarily a lesser included offense of first degree

forgery. See OCGA § 16-9-1 and § 16-9-2. The distinction between the two defenses

is that first degree forgery requires proof that the defendant uttered or delivered the

forged writing, whereas second degree forgery does not. See Browning, supra, 174

Ga. App. at 760 (2). In this case, the indictment charged Smith with two counts of

first degree forgery which includes the elements required to prove the lesser crime of

second degree forgery. Accordingly, the indictment afforded Smith with sufficient

11 notice of the conduct which he had to defend at trial. See Brownlow, supra, 248 Ga.

App. at 369-370 (3). Moreover, some evidence supported a finding that Smith

committed the lesser included offense of second degree forgery when he and his co-

defendants presented a forged check and fake Alabama identification card in an

attempt to purchase nearly $500 in merchandise, including an iPod, at the Douglas

County Best Buy store. Accordingly, Smith cannot show that the trial court abused

its discretion in adding a sua sponte charge on the lesser included offense when

recharging the jury in response to their question. See Cochran, supra, 276 Ga. App.

at 841 (holding that trial court did not err in adding sua sponte instruction on

voluntary intoxication when recharging jury on aggravated assault and battery).

In sum, we affirm Smith’s convictions for second degree forgery as a lesser

included to the first degree forgery charges (Counts 1 and 2). We also affirm Smith’s

convictions for identity fraud and second degree forgery (Counts 3 through 8).

However, we reverse Smith’s conviction for giving a false name (Count 9), because

the evidence did not support it.

Judgment affirmed in part and reversed in part. Barnes, P. J., and Ray, J.,

concur.