text:
    A01A2356.
    SUSAN v. THE STATE.
    (562 SE2d 233)
   Blackburn, Chief Judge.

Nicholas Susan was convicted by a jury of five counts of armed robbery, four counts of possession of a firearm during the commission of a crime, and four counts of possession of a firearm by a convicted felon. He appeals, maintaining that the trial court erred in: (1) not granting a new trial due to the insufficiency of the evidence; (2) not granting a new trial due to false statements made under oath by a co-defendant; (3) improperly charging impossibility; and (4) admitting similar transaction evidence. We affirm his convictions.

1. In his first enumeration of error, Susan challenges the sufficiency of the evidence.

The standard of review for the sufficiency of evidence, in reviewing either a motion for a directed verdict or a motion for new trial, is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We view the evidence in the light most favorable to the verdict, and [appellant] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations omitted.) Willingham v. State.

Testimony at trial showed that on March 2, 1998, at approximately 11:30 p.m., two masked men entered the Crown gas station on Old Savannah Road in Augusta. One man, who was armed with a dark semi-automatic handgun, forced the lone attendant to empty the register and take money from the money tube of the safe, while the second man took lottery tickets. The men forced the attendant to lie on the floor as they ran from the store.

On the same night, shortly before midnight, two hooded men entered the Golden Pantry on Lumpkin Road in Augusta. One man, who carried a dark semi-automatic handgun, put the gun to the clerk’s head and took money from the register and from the clerk’s billfold. The other man took lottery tickets. After forcing the clerk to lie on the floor, the men ran from the store with the money and lottery tickets.

On March 5, 1998, at approximately 9:00 p.m., the Pizza Hut Express on Washington Road in Augusta was robbed by two men wearing ski masks. One of the men, who was armed with a dark semi-automatic pistol, told one of the employees to open the safe. When the employee told him that the safe had locked down and could not be opened, the men took money from the register and from the other employee’s purse and fled, after forcing the two employees to lie on the floor.

On the same night, at approximately 10:00 p.m., a small white car parked behind the Subway sandwich shop on Peach Orchard Road in Augusta. Two masked men jumped out of the car and went into the shop, leaving a third person behind the wheel of the car. One of the men was carrying a rusty, black 9 mm pistol. The men took money from the register. One of the robbers also snatched a silver chain from an employee’s neck. The robbers then forced the employee to lie on the floor and fled in the white car.

On March 3, 1998, Investigator Kenny Lynch of the Richmond County Sheriff’s Office was advised by the Georgia Lottery that a black female had tried to redeem a stolen lottery ticket. He was given a description of both the woman and her car, a small white vehicle. On March 5, Lynch responded to a call that a Subway shop had been robbed. His investigation indicated that a white car was also involved in that robbery. On March 6, Lynch received a call from someone who told him that a man named Eric Mullins and his girlfriend, who drove a white vehicle, had been involved in the Pizza Hut robbery.

When questioned, Mullins denied any involvement in the robbery. As a result of his interview with Mullins, Lynch contacted Elizabeth McKeone. She told Lynch that Mullins had spoken about robberies and a gun; she also said that Mullins’s girlfriend had a white car. Lynch contacted Mullins’s mother, who told him that Mullins’s girlfriend was named Hatcher and that she lived in a nearby apartment complex. Lynch went to the apartment complex and found a small, white Mercury Mystique. He knocked on the door near the car, and Renata Hatcher responded. She acknowledged that the car was hers and identified a photograph of Mullins. She told Lynch that she knew why he was there and agreed to go to the police station.

Hatcher informed Lynch that Mullins was her boyfriend and that she had been involved as the driver in the robberies. She provided details of where she had parked the car for each of the robberies. She also told Lynch that a second man, whom she knew as Nick, was involved in the robberies. When shown a photo lineup, she identified Susan as Mullins’s accomplice. Lynch ran a criminal history on Mullins and learned that he and Susan had been involved in a previous armed robbery. Mullins was arrested on March 13.

On the following Monday, Susan came to the police station. Lynch advised Susan of the outstanding warrant. Lynch left the room after securing Susan with leg shackles. When Lynch returned, Susan pulled out a handgun, put it to his own head, and said that he would rather die than go back to jail. After several hours, officers were able to convince Susan to surrender the gun. The gun which the officers took from Susan was later identified at trial as the gun which had been used in the Crown, Golden Pantry, Pizza Hut, and Subway robberies.

Our review of the record before us shows that there was ample evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that Susan was guilty of the offenses with which he was charged.

Susan argues that the uncorroborated testimony of Hatcher, an accomplice, was not sufficient to convict him. With respect to the sufficiency of evidence corroborating an accomplice’s testimony,

a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. The corroborating evidence may be circumstantial. The sufficiency of corroborating evidence should be peculiarly a matter for the jury to determine.

(Citations and punctuation omitted.) Short v. State.

The semi-automatic handgun which the State introduced into evidence connects Susan to the robberies. Susan brought the handgun to the police station. That handgun was identified by various robbery victims as the gun which had been used in the robberies. When shown the gun at trial and asked if he recognized it, John Morris, the clerk at the Crown gas station, said, ‘Yes, sir. It is the gun because I remember seeing that it was scratched up on the front of it.” Both of the employees at the Pizza Hut testified that the gun looked like the one used in that robbery. Finally, the Subway employee described the gun to police “as a large gun, an automatic, rusty — a kind of rusty, black gun, a 9 millimeter,” and identified it at trial as the gun that had been pointed at him during the robbery.

There was also testimony from one of the victims that she recognized Susan as the man who had robbed her. During her initial testimony, the victim had stated, “I thought the guy that had a gun on me was a fair-skinned guy with really deep, deep looking eyes.” When she returned to the stand and was asked by the prosecuting attorney what she had told him after seeing Susan, she stated, ‘Yeah, that I recognized those — remember, I said I recognized those eyes. I said that’s the person that was holding that gun on me. I said, I know those eyes.”

The robberies at both the Crown gas station and the Golden Pantry were recorded on videotape, .and the jury saw these tapes during the course of the trial and a second time during deliberations. These videotapes were sufficient to support Hatcher’s account of the robberies. This enumeration is without merit.

Susan also argues that Hatcher’s testimony is in direct conflict with other evidence as Susan is a white male and “each of the victims gave the police a statement that they were robbed by two black males wearing masks.” While two of the victims identified both robbers as black in their original statements, one testified on the stand that he had been wrong and that the second suspect “was Hispanic or partially white,” while the other stated that he “couldn’t swear they was black.” Of the two employees at the Pizza Hut, one described one of the suspects as a “fair-skinned guy,” but admitted on cross-examination that she could not tell whether either suspect was black or white. The other Pizza Hut employee said that he thought one of the suspects was light skinned, though his initial impression was that both were black, but that he had not gotten a good look because the suspect had told him not to look at him. Finally, the Subway employee testified that one of the suspects was brown, and the other one was “lighter,” but he could not discern his race. While there is some conflict in the testimony, “the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.” (Punctuation omitted.) Sorrells v. State. “This court may not substitute its judgment for that of the jury.” (Punctuation omitted.) Cantrell v. State.

Finally, Susan argues that there were two accomplices in this case, Hatcher and Mullins, and that since Hatcher named Susan as an accomplice and Mullins stated that Susan was not an accomplice, there was no corroboration of Hatcher’s testimony. There is no merit to this argument. Mullins’s testimony that Susan was not involved in the robberies “created nothing more than a conflict in the evidence for the jury to resolve.” Johnson v. State. The evidence was sufficient to authorize a rational trier of fact to conclude that Susan was guilty beyond a reasonable doubt of the crimes with which he was charged.

2. Susan next contends that the trial court erred in denying a new trial, alleging that Hatcher made false statements under oath. Susan points out that at trial, Hatcher testified that no promises had been made to her in exchange for her testimony, that she had no special deal with the State or the sheriff’s department, and that, having been sentenced on the day before the trial, there was “nothing out there” as far as her case was concerned. Susan contends that those statements were not true because Hatcher has filed a post-conviction relief petition in which she states that her plea was negotiated and that her sentence was later reduced in consideration of her cooperation in testifying. In that same petition, she seeks to withdraw her pleas of guilty on the ground that her trial counsel never advised her that she would have to serve a mandatory minimum sentence of ten years. Susan maintains that in giving the jury the impression that she had received a sentence and was testifying without hope of benefit, Hatcher committed false swearing. Under OCGA § 24-9-85 (b), argues Susan, Hatcher’s testimony should be disregarded entirely.

There is no evidence that either the sheriff’s department or the State had offered Hatcher a plea agreement or a special deal. Nor is there evidence that Hatcher swore falsely when she made her statements to the jury. The trial court observed in denying Hatcher’s motion for new trial that there is no way of knowing whether Hatcher’s current protestations or her testimony at trial constitutes the false swearing, if any.

Even assuming, however, that Hatcher’s statements at trial were false, such fact does not benefit Susan under the facts of this case. OCGA § 24-9-85 (b) provides that “[i]f a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence” (Emphasis supplied.) Susan’s involvement in the robberies has been sufficiently established. Hatcher’s testimony need not be excluded, even if she did misrepresent to the jury that she had no hopes of a lighter sentence in return for her testimony, as her testimony as to Susan’s involvement was corroborated by other unimpeached evidence. Holbrook v. Rodgers.

3. In his third enumeration of error, Susan argues that the trial court erred in improperly charging impossibility. The transcript shows that when asked by the trial judge, on two separate occasions, whether he had objections to any of the charges, Susan stated that he had none. “When a trial court asks if there are objections to the charge, counsel must state his objections or reserve the right to object on motion for new trial or on appeal. Otherwise, waiver will result.” Brinson v. State.

4. In his final enumeration of error, Susan asserts that the trial court erred by improperly allowing similar transaction evidence to be presented to the jury. Specifically, Susan argues that the prior offense and the offenses in this case are not sufficiently similar.

“On the question of similarity, the trial court’s findings will not be disturbed unless ‘clearly erroneous.’ ” Mitchell v. State. “In reviewing whether there were sufficient similarities to create a connection between the previous crime and the instant crimes such that the former tends to prove the latter, we focus on the similarities rather than the dissimilarities.” Mitchell v. State. “Similar transactions need not be identical to the offense being tried but must show sufficient similarity or connection between the independent incidents and the offense at issue.” Jones v. State.

The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.

(Punctuation omitted.) Cantrell, supra at 220 (2).

In this case, the pretrial hearing required by Uniform Superior Court Rule 31.3 (B) was conducted to decide the admissibility of the allegedly similar transaction. The State sought to introduce evidence that on September 2, 1994, Shakirrah Bradshaw, an employee of Papa John’s Pizza, delivered pizzas to an address on Wilder Street in Augusta. When she got there, a white male was standing outside. Bradshaw got out of the car and opened the passenger side door to get the pizzas. Before she could turn around, a gun was placed to her head and she was pushed up against the car by several individuals. She was ordered to keep her head turned and not to look. The robbers took the pizza and ran. Bradshaw identified Susan as the white man who had been standing outside. She subsequently learned that Mullins, Susan’s co-indictee in the instant case, was among the others who robbed her. Susan was questioned about the robbery and gave police a statement admitting his involvement. He and Mullins both pled guilty to the lesser included offense of robbery by intimidation.

The trial judge determined that evidence of the similar transaction was admissible to show course of conduct and bent of mind and that Susan was the person who committed the independent act. The trial judge also found that there was sufficient similarity and connection between the prior offense and the crimes charged in this case. We agree.

Decided March 15, 2002.

Ellis R. Garnett, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

The State’s evidence shows that Susan and a particular co-defendant, Mullins, have been involved as accomplices in armed robberies. Their victims are employees of fast food or convenience stores. The victims have been robbed at gunpoint in situations in which they are vulnerable and isolated. Given these similarities, we cannot say that the trial court erred in its ruling. This enumeration is without merit.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

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

        Willingham v. State, 242 Ga. App. 472-473 (530 SE2d 224) (2000).

      . Short v. State, 234 Ga. App. 633, 635 (1) (b) (507 SE2d 514) (1998).

        Sorrells v. State, 218 Ga. App. 413 (1) (461 SE2d 904) (1995).

        Cantrell v. State, 210 Ga. App. 218, 219 (1) (435 SE2d 737) (1993).

        Johnson v. State, 247 Ga. App. 157, 161 (5) (543 SE2d 439) (2000).

        Holbrook v. Rodgers, 105 Ga. App. 219 (124 SE2d 443) (1962).

        Brinson v. State, 243 Ga. App. 50, 52 (4) (530 SE2d 798) (2000).

        Mitchell v. State, 206 Ga. App. 672, 673 (2) (426 SE2d 171) (1992).

        Mitchell v. State, 249 Ga. App. 520, 522 (1) (548 SE2d 469) (2001).

        Jones v. State, 239 Ga. App. 733, 734 (1) (521 SE2d 883) (1999).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A01A1759.
    GSW, INC. v. DEPARTMENT OF NATURAL RESOURCES et al.
    (562 SE2d 253)
   Pope, Presiding Judge.

On March 9, 1993, GSW, Inc. applied to operate a landfill in Long County. GSW asserted that after it obtained a site suitability letter from the Environmental Protection Division of the Department of Natural Resources, it began the process of designing the landfill to suit the EPD’s requirements. According to GSW, there was an initial indication that EPD officials would grant the permit, but the U. S. military later objected to the landfill because of its proximity to the Townsend Bombing Range. In fact, a portion of the proposed landfill was located within a restricted airspace zone in which military aircraft fly at speeds of up to 500 mph and altitudes as low as 500 feet above ground level.

On May 12, 1995, Harold F. Reheis, director of the EPD, notified GSW that its permit had been denied under DNR Rule 391-3-4-.04 (1), which provides for the denial of a permit if it is likely to cause a threat to public health, safety or well-being. The EPD’s letter cited the department’s concern that birds attracted to the landfill could possibly strike an aircraft, causing the potential for injury to military personnel and civilians. GSW appealed the department’s decision to deny its permit, but the decision was affirmed by an administrative law judge.

GSW then appealed the ruling to the Superior Court of Fulton County pursuant to OCGA § 50-13-19. The superior court also affirmed. This Court subsequently denied GSW’s application for discretionary appeal from the superior court’s order.

GSW then filed a separate declaratory judgment action in DeKalb Superior Court asserting federal and state takings claims against the DNR, Reheis, individually and in his capacity as director of the EPD, and the State of Georgia. The case was removed to federal court, which dismissed the federal claims and declined to exercise supplemental jurisdiction over the state taking claims. The matter was remanded back to state court. The DeKalb Superior Court subsequently granted summary judgment to the defendants, finding that GSW’s constitutional taking claims had been either waived by GSW or previously decided by the Fulton Superior Court in GSW’s appeal from the administrative proceedings. GSW appeals the DeKalb Superior Court’s summary judgment order.

1. GSW argues that the trial court erred in granting summary judgment because it asserts that its constitutional taking claim has never properly been considered by any court. GSW argues that Fulton Superior Court could not properly rule upon its taking claim because the administrative decision in this case was not final when that court reviewed it. In other words, GSW asserts that the judicial appeal to the Fulton Superior Court was a part of the administrative process because that court had the power to overturn the agency’s decision. GSW also notes that there is no specific provision in the Georgia Administrative Procedure Act providing that the reviewing superior court may consider a constitutional taking claim.

In essence, GSW appears to be arguing that its taking claim was not ripe until the appeals from the administrative decision were complete and thus that GSW could only properly raise the merits of issue for the first time in this action before the DeKalb Superior Court. We disagree.

Under OCGA § 50-13-19 (h) (1), a superior court may reverse or modify an agency decision “if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . [i]n violation of constitutional or statutory provisions.” Our Supreme Court has held, therefore, that “[a] superior court reviewing the decision of an administrative agency may decide a constitutional challenge to the agency’s rules raised during the administrative process.” State Health Planning Agency v. Coastal Empire Rehabilitation Hosp., 261 Ga. 832 (412 SE2d 532) (1992). And this Court has noted that a superior court can consider a claim raised in an administrative hearing that a statute was unconstitutional both on its face and as applied by the agency:

Although the constitutionality of the statute could not be adjudicated during an administrative hearing, this proceeding would provide the proper forum for raising the constitutional objection at the earliest opportunity, keeping the actual controversy pending, and ultimately providing an avenue for judicial review of the constitutional issue.

Chambers of Ga., Inc. v. Dept. of Natural Resources, 232 Ga. App. 632, 633 (502 SE2d 553) (1998).

GSW claims that the application of DNR Rule 391-3-4-.04 (1) in this case resulted in an unconstitutional taking of its property. We find that under OCGA § 50-13-19 (h) (1), the Fulton Superior Court could consider this claim provided that it was preserved in the administrative proceedings below. In other words, we find that the claim for taking was ripe for judicial review at the time the administrative decision was appealed to the superior court. Cf. Williamson County Regional Planning Comm. v. Hamilton Bank &c., 473 U. S. 172, 186 (III) (A) (105 SC 3108, 87 LE2d 126) (1985) (holding that a federal claim for regulatory taking is not ripe until after “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue”) (emphasis supplied).

GSW did, in fact, preserve its constitutional taking claim in the administrative proceeding. It alleged in its petition for a hearing before an ALJ that the denial of its application violated both the U. S. and Georgia Constitutions, “as the use and enjoyment of their [sic] property has been impacted by governmental interference for the public good without just compensation.” GSW also raised the issue in its petition for judicial review, asserting that the EPD’s actions constituted “a complete or substantial taking of the use of this property.” And the judge stated in her order that she had “reviewed the Record, conducted a hearing, and considered the arguments and submissions of counsel” in affirming the ALJ’s decision.

Decided March 18, 2002

Lovett, Cowart & Ayerbe, Linwood R. Lovett, Paul R. Ayerbe, Bridgette M. Cooper, for appellant.

Thurbert E. Baker, Attorney General, Devon A. Orland, Assistant Attorney General, for appellees.

We find, therefore, that the judge in the Fulton Superior Court action considered and rejected GSW’s taking claim. That ruling became final when this Court denied GSW’s application for discretionary appeal and GSW did not apply to the Supreme Court of Georgia for certiorari. Accordingly, the DeKalb Superior Court correctly recognized that it could not relitigate a claim already ruled upon by another superior court and thus properly granted summary judgment to the defendants. See Jordan v. Bd. of Public Safety, 253 Ga. App. 339 (1) (559 SE2d 94) (2002); Langton v. Dept. of Corrections, 220 Ga. App. 445, 446 (1) (469 SE2d 509) (1996); Blackwell v. Ga. Real Estate Comm., 205 Ga. App. 233 (421 SE2d 716) (1992).

2. In light of our holding in Division 1 above, we do not reach the underlying issue of whether GSW could assert a claim for taking under the facts of this case.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

       While this matter was pending, the Georgia General Assembly passed a law restricting the siting of landfills “within two miles of a federally restricted military air space which is used for a bombing range,” but the law was not given retroactive effect and thus did not directly apply to GSW’s application. OCGA § 12-8-25.3 (d).

       The rule reads: “No person shall engage in solid waste handling in a manner which will be conducive to insect and rodent infestation or the harboring and feeding of wild dogs or other animals; impair the air quality; impair the quality of the ground or surface waters; impair the quality of the environment; or likely create other hazards to the public health, safety, or well-being as may be determined by the Director.”


author: Smith, Presiding Judge.

text:
    A01A2169.
    DAY v. THE STATE.
    (562 SE2d 252)
   Smith, Presiding Judge.

In 1990, Roger C. Day was convicted of burglary, rape, and aggravated assault, and his conviction was affirmed by this court. Day v. State, 203 Ga. App. 186 (416 SE2d 548) (1992) (full concurrence as to Divisions ,1 and 3). Since that time, Day has filed numerous appeals. See, e.g., Day v. State, 242 Ga. App. 899 (531 SE2d 781) (2000); Day v. State, 216 Ga. App. 29 (453 SE2d 73) (1995). In this pro se appeal, he contends that the trial court erroneously denied his “motion to vacate for lack of courts jurisdiction Count 14 [sic].” We find no error, and we affirm.

1. The State’s motion to dismiss the appeal on grounds of res judicata and collateral estoppel is denied. Day contends that his conviction is void, and a void judgment may be attacked at any time. See OCGA § 17-9-4; Barrett v. State, 183 Ga. App. 729-730 (1) (360 SE2d 400) (1987), overruled on other grounds, Gonzalez v. Abbott, 262 Ga. 671, 673 (425 SE2d 272) (1993).

Decided March 18, 2002.

Roger C. Day, pro se.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Assistant District Attorney, for appellee.

2. Although we deny the State’s motion to dismiss, we find no merit in Day’s argument that the trial court did not have personal jurisdiction or that the State did not prove venue. The case was tried in DeKalb County. Count 14 of the indictment charged him with committing burglary “in the building of Wilwat Properties, doing business as Tree Hills Apts., located at 1420 South Harriston Road.” Day argues that “1420 South Harriston Road” does not lie in DeKalb County, although he appears to concede that testimony at trial showed that “a crime of burglary took place in DeKalb County at 1420 South Hairston Street, Stn. Mnt., Ga.”

As best we understand his argument, Day contends the trial court could not have had jurisdiction over him because the address charged in the indictment did not exist in DeKalb County. To the extent that Day argues a fatal variance between the allegation as charged in the indictment and the proof at trial, the street address was a clerical error which could not have misled Day “in any manner that surprised him at trial or impaired his defense. Nor can he be subjected to another prosecution for the same offense.” Jackson v. State, 217 Ga. App. 485, 490 (5) (458 SE2d 153) (1995) (physical precedent only). See also Finley v. State, 252 Ga. App. 66-67 (1) (555 SE2d 523) (2001). The trial court correctly concluded that “the indictment is specific on its face. Even if the street name is misspelled, Mr. Day had adequate notice from the indictment’s listing of the apartment complex name to secure an appropriate defense.” The specific location was not an element of the crime charged against Day, and the precise “location charged in the indictment was mere surplusage. [Cits.]” Hunt v. State, 219 Ga. App. 741, 744 (4) (466 SE2d 894) (1995). Finally, we note that the State introduced some evidence at trial that the crime charged in Count 14 occurred in DeKalb County. The judgment of conviction with respect to Count 14 of the indictment is not void, and the trial court did not err in denying Day’s motion to vacate.

Judgment affirmed.

Barnes and Phipps, JJ., concur.


author: Phipps, Judge.

text:
    A02A0866.
    BAIYE et al. v. GOBER.
    (562 SE2d 249)
   Phipps, Judge.

The trial court awarded summary judgment to plaintiff Frank Gober against defendants, James Baiye and Deen Investment & Property Development, Inc. (Baiye and Deen), on the ground that they admitted liability and damages by failing to respond to a request for admissions filed and served on them by Gober. We reverse because of a material issue of fact on the question of whether Baiye and Deen were served with the request for admissions. Moreover, the court’s award of summary judgment to Gober was premature in view of unresolved affirmative defenses raised in the pleadings.

Gober purchased a home from Deen. After closing, he brought this suit against Deen and its president and registered agent, Baiye, seeking $60,000 in damages for repairs necessitated by negligent construction. When the deputy sheriff’s attempts to serve Baiye with process proved unsuccessful, Gober hired a special process server who effected service on Deen’s office manager. The deputy’s entries of (unsuccessful) service contain a handwritten notation that a request for admissions was among the papers to be served. The multi-paged request for admissions appears in the record along with the deputy’s service entries. But the service entries filed by the special process server do not indicate that Baiye and Deen were served with the request for admissions when service was finally effected.

After being served with the summons and complaint, Deen answered and asserted defenses of lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process. It also filed a counterclaim seeking return of $10,000 previously paid into an escrow account to ensure completion of Gober’s house.

Gober moved for summary judgment on the ground that Baiye and Deen had failed to respond to his request for admissions. His brief in support of the motion states as a fact that Baiye and Deen had been served with the request for admissions. Baiye and Deen failed to respond to the motion, and the trial court awarded summary judgment to Gober.

After entry of final judgment, Baiye and Deen filed a response to Gober’s motion for summary judgment asserting that they were never served with any request for admissions. The response was supported by an affidavit from their attorney. The trial court entered no ruling on the response, as it was untimely. However, a timely notice of appeal from the final judgment was filed.

1. Baiye and Deen contend that the trial court erred in granting Gober’s motion for summary judgment because there exists a material issue of fact on the question of whether they were served with his request for admissions.

Gober argues that Baiye and Deen have waived this issue because his motion for summary judgment put them on notice that he was relying on their failure to respond to the request for admissions, and they did not respond to the motion for summary judgment in a timely fashion. We cannot agree with Gober’s arguments.

Because there is no such thing as a default summary judgment, [Baiye and Deen’s] failure to timely respond to [Gober’s] motion does not automatically entitle [Gober] to summary judgment in [his] favor. [Cit.] A failure to respond to a motion for summary judgment results in waiver of the right to present evidence in opposition to the motion, but the moving party must still show from the pleadings and the evidence that summary judgment is appropriate. [Cit.]

“To affirm a grant of summary judgment, it must affirmatively appear from the record that no question of material fact exists and the moving party is entitled to judgment as a matter of law. [Cit.]”

Unquestionably, the penalty for failing to answer or object to a request for admissions is admission of the subject matter of the request. But obviously a party cannot be subjected to this penalty unless the request has been filed and properly served. Therefore, for the trial court to have been authorized to award summary judgment to Gober based on Baiye and Deen’s failure to respond to the request for admissions, it must have appeared without contradiction from the record then before the court that the request was filed and served on Baiye and Deen. Because the return of service by the special process server did not indicate that anything other than the summons and complaint were ultimately served, there was a material issue of fact on this question when the trial court ruled on Gober’s motion for summary judgment. Under the present state of the record, a material issue of fact still exists.

2. In addition, the trial court should not have awarded summary judgment to Gober without ruling on the service and jurisdictional defenses raised in Baiye and Deen’s answer.

Even in the absence of a response to the summary judgment motion, Gober was entitled to summary judgment in this case only if he “pierced the defenses set up in [Baiye and Deen’s] answer and [they] failed to respond with specific facts showing a genuine issue for trial.” Here, Baiye and Deen were never called upon to respond because Gober made no attempt to pierce their defenses. And contrary to arguments advanced by Gober, Baiye and Deen did not waive their defenses by filing their (compulsory) counterclaim. “Since the [service] and jurisdictional issues have not been waived, nor have they been addressed in the lower court, the trial court’s ruling on the merits of the case was premature.”

Decided March 18, 2002.

Patricia K. Buonodono, for appellants.

John A. Roberts, for appellee.

Judgment reversed.

Andrews, P. J., and Mikell, J., concur.

        Rapps v. Cooke, 234 Ga. App. 131-132 (1) (505 SE2d 566) (1998).

        Crown Ford, Inc. v. Crawford, 221 Ga. App. 881, 882 (473 SE2d 554) (1996).

        Thompson v. Berman, 147 Ga. App. 740 (1) (250 SE2d 190) (1978) (citing OCGA § 9-11-36).

       See Thompson v. Berman, supra; see also Eason v. Bowie, 196 Ga. App. 199 (395 SE2d 600) (1990).

       See Eason, supra.

        Crown Ford, supra.

       See Riggio v. Lawson, 204 Ga. App. 774, 775 (1) (420 SE2d 613) (1992) (assertion of compulsory counterclaim does not serve as waiver of defense of lack of personal jurisdiction); see also Marsh v. Wright Mem. Mortuary, 197 Ga. App. 736 (399 SE2d 232) (1990) (defendant did not waive defense of insufficiency of service of process by filing a cross-claim and other motions); compare Hoffman v. Fletcher, 244 Ga. App. 506, 509 (3) (535 SE2d 849) (2000) (recognizing right of defendant to waive defense of improper venue by not reasserting it in her motion for summary judgment).

        Hight v. Blankenship, 199 Ga. App. 744, 745 (406 SE2d 241) (1991); compare Taylor v. Career Concepts, 184 Ga. App. 551, 552 (1) (362 SE2d 128) (1987) (where defendant did not raise defense of improper venue until after trial court granted plaintiff’s motion for summary judgment).


author: Ruffin, Judge.

text:
    A01A2106.
    ROBINSON v. HUNTER.
    (562 SE2d 189)
   Ruffin, Judge.

Joy Robinson sued Fred Hunter to determine ownership to proceeds derived from the sale of timber cut on land in which Hunter holds a life estate and Robinson has a remainder interest. The trial court concluded that Hunter was entitled to the timber sale proceeds, granted him summary judgment, and denied Robinson’s motion for summary judgment. Robinson appeals, and for reasons that follow, we affirm.

1. Summary judgment is appropriate when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” The facts in this case are undisputed. In 1985, Lucy Coleman died testate, leaving Hunter a life estate in her Hahira farm “for his exclusive use and enjoyment during his lifetime.” Coleman’s will further provided that, upon Hunter’s death, the farm would pass to Robinson, “all to be hers absolutely and to be used or disposed of as she may see fit.”

In 1999, Hunter arranged to sell most, but not all, of the farm’s merchantable pine timber to a lumber company for $351,675. Under the timber purchase agreement, the lumber company agreed to harvest the trees pursuant to logging practices generally prevailing in the timber industry. Before the harvest, Hunter informed Robinson about the sale. Robinson subsequently filed this declaratory judgment action, asserting her rights to the timber proceeds. Shortly after suit was filed, the trial court ordered that the proceeds, less certain expenses, be held in escrow until it determined the rightful owner.

During the litigation, the parties stipulated that Hunter’s “harvesting of the timber was in accordance with approved forestry practices and in conformity with good husbandry, and [did] not constitute waste.” Hunter also testified by affidavit that his life estate in the farm had “many burdens and responsibilities, but little to no profit.” According to Hunter, “the only substantial value a life tenant could expect from this land was to be found in the trees which have been growing there for the past 30 years (and longer).” Hunter further averred that he helped Lucy Coleman tend the pine trees on the farm and that, before her death, Coleman sold some trees to a local forest products company, although it is unclear whether those trees were located on the Hahira farm.

M. E. Coleman, a practicing forester hired by Hunter to supervise the timber harvest, also testified through affidavit. He stated that the trees at issue were fully mature and, in accordance with good forestry practice, needed to be harvested to avoid damage or destruction “from disease, insects, and fire.” Coleman further testified that the harvested area would be completely reforested with new trees and that growing new, productive pine trees on this type of land “is the best forestry practice.” According to Coleman, “trees are a renewable resource, a crop, both in theory and practice throughout [Georgia].”

Robinson moved for summary judgment, asserting that, as a matter of law, the timber sale proceeds should be invested, with interest from that investment payable to Hunter, but the principal payable to her on Hunter’s death. Hunter also filed a summary judgment motion, arguing that he is entitled to all proceeds from the timber harvest. The trial court rejected Robinson’s argument and granted Hunter summary judgment. We find no error.

Under OCGA § 44-6-83, a life tenant is “entitled to the full use and enjoyment of the property if in such use he exercises the ordinary care of a prudent man for its preservation and protection and commits no acts which would permanently injure the remainder or reversion interest.” On appeal, Robinson argues that nothing in Lucy Coleman’s will authorized Hunter to sell or dispose of the timber. But “[irrespective of the powers of sale granted in the subject will, life tenants are empowered to cut and sell timber in order to preserve and protect the value of the land.” The undisputed evidence shows that the tree harvest was necessary, comported with good forestry practice, and did not constitute waste. And even Robinson admitted below that Hunter had a “right to harvest the timber.” Nevertheless, she contends that the harvest proceeds belong to — and must be held in trust for — her.

We disagree. In Sutton v. Bennett, our Supreme Court considered whether a life tenant of a wooded tract was authorized to derive income from cutting and selling pine timber for pulpwood. Because cutting the timber was necessary to “‘preserve and protect’” the land, the Court concluded that the life tenant’s income-producing activities fell within his full use and enjoyment of the property. Similarly, in Fort v. Fort, the Supreme Court affirmed the trial court’s holding that a “life tenant in the exercise of good husbandry could cut the timber and retain the proceeds from the sale thereof.” Although a life tenant cannot remove timber solely for profit, he “may, when it is good husbandry and ‘necessary to the enjoyment of his use’ to clear off timber to prepare land for cultivation, sell the timber so cut.”

The evidence shows that Hunter did not simply remove trees from the Hahira farm for profit. Instead, good forestry practice dictated that the trees be cut and the area reforested to replace the harvested timber, as proposed by Hunter. The record further establishes that the timber sale represents the only substantial income a life tenant could expect from the farm and that Hunter helped Lucy Coleman tend the trees for many years.

Given these circumstances, we find that Hunter was entitled to cut the trees, sell them, and retain the proceeds as part of his full use and enjoyment of the land. Accordingly, the trial court properly granted Hunter summary judgment and denied Robinson’s summary judgment motion.

Decided February 11, 2002

Reconsideration denied March 19, 2002

Smith & Jenkins, Wilson R. Smith, for appellant.

May & Horkan, Dwight H. May, H. L. Cole, for appellee.

2. Robinson also argues that the trial court erroneously concluded that expenses relating to the timber harvest should be paid out of the sale proceeds. As we found in Division 1, however, Hunter is entitled to the harvest proceeds, and he does not object to paying the expenses out of that fund. Accordingly, Robinson’s final enumeration of error presents no basis for reversal.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       OCGA § 9-11-56 (c).

        Grant v. Bell, 246 Ga. 371, 372 (271 SE2d 467) (1980).

       215 Ga. 379-380 (1) (110 SE2d 650) (1959).

       Id. at 380.

       223 Ga. 400, 404-405 (4) (156 SE2d 23) (1967).

        Higgins v. State, 58 Ga. App. 480, 481 (199 SE 158) (1938). In her brief, Robinson asserts that “[a] life tenant cannot sell the timber growing on the property subject to the life estate.” For support, she cites Brogdon v. McMillan, 116 Ga. App. 34 (1) (156 SE2d 828) (1967), in which we stated that a life tenant, who by statute cannot act in a way that permanently injures the remaindermen, “may not sell all the timber on the land.” (Emphasis supplied.) The Brogdon decision, however, does not govern here because Hunter has not harvested or sold all of the timber on the Hahira farm. Furthermore, Brogdon recognized that timber may be harvested where required by good husbandry. See id.

       See Sutton, supra; Fort, supra. Cf. Campion v. McLeod, 108 Ga. App. 261 (1) (132 SE2d 848) (1963) (life tenant lacked authority to cut and sell timber where no evidence showed “that the cutting of timber . . . was for the purpose of providing the life tenant with firewood or for the purpose of clearing up land for cultivation or in the exercise of good husbandry or forestry”).


author: Barnes, Judge.

text:
    A01A2206.
    MICHEL et al. v. ABRAHAMS.
    (562 SE2d 194)
   Barnes, Judge.

Brian Abrahams filed a dispossessory action against Stanley Michel, Mimch, Inc. d/b/a Gooch Transfer, and Mireille Michel, contending that the defendants were tenants at sufferance and owed rent, a termination fee, interest, and attorney fees. The defendants answered, denying they were tenants because they had terminated the landlord-tenant relationship and denying they owed money to Abrahams, the landlord. They also counterclaimed for reimbursement of money spent on repairs.

Both parties moved for summary judgment, which the trial court granted to the landlord and denied to the tenants. Stanley Michel and Mimch, Inc. (“the tenants”) appeal, but because Mireille Michel has not appealed the trial court’s grant of summary judgment against her, we consider only the grant of summary judgment against the tenants. For the reasons that follow, we reverse the grant of summary judgment against Stanley Michel and Mimch, Inc.

1. While we granted the tenants leave to file a supplemental brief in addition to a reply brief, the “supplemental” brief they filed is a complete revision of their initial appellants’ brief, to which the landlord has had no opportunity to respond. “Attempts in a supplemental brief to expand the issues beyond the scope of the enumeration of errors are improper.”' Holloway v. State, 245 Ga. App. 510, 515 (4) (537 SE2d 708) (2000). Therefore, we will consider only the initial tenants’ brief, the landlord’s brief, and the tenants’ reply brief.

2. Initially, we note that the tenants’ argument does not track the ten enumerations of error in their brief. The enumerations basically allege that the trial court erred in construing the terms of the lease as applied to the facts in this case, which we will address below. One enumeration, however, addresses a different issue. The tenants contend the trial court “misapplied the law as found in Cannon v. Whiddon, 194 Ga. 417 (21 SE2d 850) (1942) and elsewhere, as to a money judgment against a party who was not served with process.”

While this contention is not further argued in the appellants’ initial brief, the appellants do argue in their reply brief that, “While the appellants are Stanley Michel and his company, the decision will apply to all named parties in the lawsuit.” They further argue that “judgment against Michel’s spouse, Mireille Michel, . . . de facto would be a judgment against Michel. In any event, the Michels jointly signed a lease,” and again assert that the trial court imper-missibly ruled against Mireille Michel although she had not been served. The appellants seem to be arguing the merits of the trial court’s finding that defense counsel answered on behalf of all three defendants without including a defense of insufficiency of service. The trial court further held that Mireille Michel’s failure to respond to requests for admissions entitled the landlord to a summary judgment against her. Because Mireille Michel is not a party to this appeal, however, we cannot review the trial court’s grant of summary judgment against her.

3. The landlord argues that the tenants admitted facts in their answer and counterclaim that showed they terminated the lease and that these admissions were binding. In their answer to the landlord’s complaint, the tenants asserted the following: “Defendants are not tenants of the plaintiff. Defendants did experience an oppressive landlord-tenant relationship with plaintiff at certain premises owned by plaintiff, but that relationship was heretofore terminated after due notice to plaintiff and after acknowledgment of said notice by plaintiff.” In their counterclaim, the tenants further asserted that “[d]ue to inequitable and abusive conduct by [the landlord], plaintiffs-in-counterclaim gave due notice and vacated the premises in September 2000.”

Under OCGA § 24-3-30, “either party may avail himself of allegations or admissions made in the pleadings of the other.” However, if the trial court admits conflicting evidence and then considers it in ruling on a motion for summary judgment, the trial court has, in effect, permitted the party to withdraw the admission in the pleadings. Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 519-520 (1) (434 SE2d 63) (1993). In this case, the trial court apparently considered the affidavits that contradict the tenants’ admissions because it recites facts (the tenants sent a September rent check) and contentions (the tenants were evicted when they were served with an eviction notice) contained therein. Therefore the tenants’ admissions in their answer and counterclaim do not establish their liability as a matter of law under the termination clause of the lease.

4. The tenants’ remaining enumerations of error address the trial court’s finding that the landlord was entitled to summary judgment against Stanley Michel and Mimch, Inc. On appeal from the grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802-803 (500 SE2d 591) (1998). Further, “[i]f it is not apparent that the trial court relied on an erroneous legal theory, its grant of summary judgment is to be affirmed if it is right for any reason.” Porquez v. Washington, 268 Ga. 649, 652 (3) (492 SE2d 665) (1997).

Viewed in this light, the record shows that the landlord rented a commercial building to the Michels and Mimch, Inc. d/b/a Gooch Transfer. The lease included the following special stipulation:

Lessee shall have the right to terminate this Lease at any time if he is not in default, provided that he give Lessor at least sixty (60) days prior written notice of such intent to terminate and further provided that he pay to Lessor, at the time he gives notice of intent to terminate, an amount equal to two (2) months additional rent, so that Lessee shall be at least two (2) months ahead in rental payments at the end of the sixty (60) day notice period. Lessee shall vacate the premises on or before the end of the sixty (60) day notice period or the lease shall not terminate as provided herein. Lessor shall have the right to terminate this lease at any time, provided that he give Lessee at least sixty (60) days prior written notice of such intent.

On June 24, 2000, the tenants faxed the landlord a letter constituting the tenants’ “Notice to Quit [the property] by Mr. Stanley Michel, MIMCH, Inc. and all related entities, at the expiration of 60 days from the date hereof,. . . and to deliver peaceable possession of said premises to you.” The landlord responded on July 5, 2000, acknowledging receipt of the intention to vacate and reminding the tenants that the lease provided for two additional months rent.

The tenants did not vacate the premises 60 days after their notice. On September 1, 2000, the landlord demanded possession of the property, and on September 3, the tenants tendered to the landlord a check for the September rent. On September 15, 2000, the landlord filed a dispossessory action, alleging that the defendants were tenants at sufferance and owed rent, a termination fee, interest, and attorney fees. The tenants were served on September 22, 2000, by tacking the summons to the door and mailing copies to the defendants. On September 24, 2000, one of the tenants sent a letter to the landlord informing him that the building had been vacated as of that day and that he had stopped payment on the September rent check because it had not cleared the bank and he assumed the landlord lost it.

The tenants answered the dispossessory action, denying they were tenants because they had terminated the landlord-tenant relationship and denying they owed money to the landlord. They also counterclaimed for reimbursement of money spent on repairs.

Both parties moved for summary judgment, and the trial court concluded that the tenants terminated the lease because they gave the 60-day notice to quit and subsequently left the premises, although they left 24 days late. Under the terms of the contract, the trial court ruled, the tenants therefore were liable for two months rent as provided in the special stipulation, totaling $5,544, 24 days rent at the holdover rate of 150 percent, or $3,326.40, attorney fees of 15 percent, or $1,330.56, and prejudgment interest of $413.95.

The terms of the parties’ lease are not ambiguous. The termination provision, which was included in the contract pursuant to the parties’ negotiations after the landlord obtained a previous dispos-sessory writ against the tenants, states that “Lessee shall vacate the premises on or before the end of the sixty (60) day notice period or the lease shall not terminate as provided herein.” (Emphasis supplied.) The tenants did not vacate the premises within the stated time, and under its terms, the lease did not terminate. Therefore, the trial court erred in granting summary judgment to the landlord on the ground that Stanley Michel and Mimch, Inc. terminated the lease.

Judgment reversed.

Smith, P. J., and Phipps, J., concur.

Decided February 22, 2002

Reconsideration denied March 19, 2002

Louie B. Hendricks, for appellants.

Thompson, O’Brien, Kemp & Nasuti, John P. O’Brien, Paul B. Frickey, for appellee.

       The May 30, 2001 notice of appeal, signed by the “Attorney for Stanley Michel and GOOCH,” specifies that “defendants, Stanley Michel and GOOCH” request that the case be sent to the Court of Appeals. The June 4, 2001 amended notice of appeal states that “defendants” are dissatisfied with the trial court’s judgment and is again signed by the “Attorney for Stanley Michel and GOOCH.”


text:
    A01A2319.
    A01A2339.
    CULVER v. THE STATE. KELL v. THE STATE.
    (562 SE2d 201)
   Ruffin, Judge.

A Fulton County grand jury indicted Michael J. Kell and Michael D. Culver for conspiracy to defraud the State, Medicaid fraud, false writings, and, as to Kell, three counts of tax evasion. Following a bench trial, the trial court found Kell and Culver guilty of the charged offenses. They appeal, primarily challenging the sufficiency of the evidence and venue. For reasons that follow, we affirm in part and reverse in part the convictions of both defendants.

Viewed favorably to support the verdict, the evidence shows that Kell, a medical doctor, founded Private Clinic and Private Clinic Laboratories (“PCL”), which were located in the same building in Fulton County. Culver worked for Kell, helping with Kell’s daily business activities and acting as his “right hand man.”

Both Kell and PCL were enrolled as Medicaid providers with the Georgia Department of Medical Assistance (“DMA”), the state agency that administered the Medicaid program. In the early 1990s, Kell individually billed Medicaid millions of dollars annually as a physician provider in Georgia’s methadone drug treatment program. During this time, PCL submitted only a small volume of Medicaid billings. Around 1996, however, the DMA discontinued the methadone program, ending Kell’s significant reimbursements for methadone treatments.

Also in 1996, Kell became concerned about the legality of referring his Medicaid patients to a laboratory that he owned. Accordingly, he agreed to sell PCL’s assets to Servicios Medicos Panamerica-nos Sociedad (“Servicios”), a Costa Rican corporation, for $300,000, payable over five years. Ecomed Labs, LLC, a corporation organized by Kell’s attorney and in which Servicios held 98 percent of the ownership, took over PCL’s laboratory operations. Kell employees Mark Bailey and Patsy Lewis were told that each owned one percent of Ecomed’s stock, although they never paid for the stock, received a stock certificate, or earned any stock dividends.

Following the sale, various Kell employees began working for Ecomed, and Kell served as Ecomed’s laboratory director, as well as an Ecomed corporate officer. Bailey was also appointed trustee of a trust Servicios created to operate Ecomed. Bailey acted in that capacity until 1997, when Kell became trustee.

After taking over PCL’s operations, Ecomed became a Medicaid provider and granted to Michael Jon Kell, M.D., Ph.D. & Associates, PC. (“Kell P.C.”), one of Kell’s corporations, a power of attorney to submit electronic claims to DMA for Medicaid reimbursement. In 1996, after the State discontinued the methadone program, Ecomed began submitting Medicaid billings to DMA in excess of $1 million, which caught the attention of DMA investigators. As described by one DMA employee, the billings from Kell and the laboratory “almost swapped.” When the methadone program ended, billings “in excess of a million dollars . . . started coming out of the laboratory.”

DMA investigators reviewed Ecomed’s Medicaid records and determined that the laboratory was submitting a high volume of billings for urine drug testing on a small patient base, charging Medicaid $25,000 to $30,000 annually per patient for these tests. Investigators further discovered that “testing was occurring with such a frequency that the results would not be back from the first test before [the patients] were given their second or sometimes third test in a week.” The billings also revealed that Kell referred these patients to Ecomed through Private Clinic.

For urine drug tests conducted between September 1996 and November 1997, Medicaid paid Ecomed between $180 and $204 per test. These tests, often run on a patient twice a week, screened for multiple drugs, such as amphetamines, barbiturates, alcohol, and methadone. The individual cost to screen for each drug factored into the overall price.

In contrast, Michael Kulas, a Kell employee who worked with the billing system, testified that Ecomed charged self-pay patients referred by the Grady Hospital Drug Dependence Unit just $19.20 for a urine drug test. Invoices generated throughout the summer of 1996 also confirmed that Ecomed charged Grady Hospital $19.20 to test a patient’s urine, and the evidence showed that Ecomed conducted urine drug tests on Grady patients during the September 1996 through November 1997 time period. The documentary evidence does not reveal which individual drug screens were included in those tests. But Kulas testified that the tests conducted on Grady self-pay patients were the same as those run on Medicaid patients. Ecomed’s lab manager similarly testified that she knew of no difference between the urine tests performed on patients referred by Grady and patients referred by Private Clinic, such as the Medicaid patients.

Investigators also discovered that, in 1994, PCL, through Kell, bid for a contract with Grady Health System to perform drug testing on Grady patients. The proposal recommended that patients be tested at least weekly for methadone and opiates to detect abuse. According to the proposal, however, drugs such as amphetamines, barbiturates, propoxyphene, and alcohol “[could] be adequately monitored through once a month testing in persons without recent histories of abuse.” Thus, PCL advocated that Grady “test for all drugs [listed in the proposal] at least once a month on a random schedule, except for opiates and methadone (and prescribed/a&used drugs in any particular patient) [which should] be tested at least once a week on a random schedule.” Despite this recommendation, between August 1996 and November 1997, Ecomed screened certain Medicaid patients well over once per month for amphetamines, barbiturates, propoxyphene, and alcohol, even when those patients showed no recent history of abuse.

In addition to this Medicaid-related evidence, the State introduced testimony and documents involving taxation. In 1995, the employee leasing company that processed the payroll for various Kell-related companies (“employee leasing”) issued Kell a W-2 form reporting that he earned $342,457.81 in wages. The following year, Kell received $23,000 in miscellaneous income from Ecomed, wages totaling $25,798.56 from employee leasing, and $34,496 in compensation as an officer of Kell PC. As an officer in PCL, Kell also earned $204,022 in compensation for the October 1,1995 through September 30, 1996 fiscal year, and $121,539 from October 1, 1996, through September 30, 1997. In 1997, employee leasing reported $165,340.75 in wages for Kell, and he also earned $27,600 as a Kell P.C. corporate officer. The evidence further showed that, in 1998, Kell received $67,456 from employee leasing and $194,325 from UD Testing, a company that employed Kell as its research director.

Despite earning significant income between 1995 and 1998, Kell paid no state income taxes for those years. In 1995, he filed a state tax return reporting just $178 in adjusted gross income and claiming $47,078 in itemized deductions. Kell also asserted that he was entitled to a $1,125 refund, the amount employee leasing withheld from his wages for state income tax purposes. The State’s tax expert testified, however, that, even with the claimed deductions, Kell earned $293,580 in 1995 taxable income, giving him state tax liability of $17,442.80. In 1997, the State Revenue Department sent Kell a proposed tax assessment for taxes due in 1995. Kell denied any tax liability and submitted several affidavits to the Revenue Department stating that he was not subject to compulsory federal and state income tax laws, which, in his opinion, applied only to federal and state employees. Kell did not file a state tax return in 1996, 1997, or 1998.

Michael Culver apparently shared Kell’s tax views. The evidence showed that in 1995, he earned $43,087.92 in wages. Based on these wages, the State’s tax expert determined that Culver earned $39,288 in taxable income and owed $2,167 in 1995 state income taxes. Nevertheless, Culver reported no taxable income on his 1995 return and, like Kell, claimed a refund equaling the approximate amount of state income tax withheld from his wages — $290. When assessed by the Revenue Department for unpaid 1995 taxes, Culver refused to pay, submitting instead an affidavit virtually identical to those signed by Kell.

In both 1996 and 1997, Kell provided withholding exemption certificates to employee leasing, asserting that because he had no tax liability the prior year and would not incur liability that year, he was exempt from tax withholding requirements. Although employee leasing found these certificates questionable, it honored them and did not withhold federal or state income taxes from checks distributed to Kell in 1996 and 1997.

At some point, Kell and Culver also established the First Meliorite Church, which met in Private Clinic’s offices and had only three members, Kell, Culver, and Bailey. Kell and Culver opened two bank accounts in the church’s name. Between 1996 and 1999, Kell deposited numerous checks he received from employee leasing and UD Testing into one of those accounts. After analyzing that account, the State’s expert in summary financial data concluded that Kell used it to pay significant personal expenses during those years, including mortgage payments on his home, child support payments, and high school tuition payments.

Based on the evidence presented, the trial court found Kell and Culver guilty of the indicted charges. Kell appeals his convictions in Case No. A01A2339, and Culver appeals in Case No. A01A2319.

Case No. A01A2339

1. Kell argues that the State failed to present sufficient evidence to prove Medicaid fraud. In addressing this argument, we must consider whether “the evidence, construed favorably to support the verdict, was sufficient to authorize the [factfinder] to find him guilty beyond a reasonable doubt of [this offense] .” As discussed below, the State failed to establish venue beyond a reasonable doubt, requiring reversal. Because the State presented sufficient evidence of Kell’s guilt, however, “the Double Jeopardy Clause does not preclude the State from retrying [him], so long as it does so in a forum in which venue is properly established.”

(a) Sufficiency of Evidence to Prove Guilt. In the indictment, the State charged that, between September 16, 1996, and September 15, 1997, Kell obtained “payments from the Georgia Department of Medical Assistance ... to which [he was] not entitled and in excess of what [he was] entitled, by [a] fraudulent scheme and device,” in violation of OCGA § 49-4-146.1 (b). Describing the fraudulent scheme, the State alleged that PCL’s sale to Servicios was a sham, leaving the lab and its profits in Kell’s control; that Kell charged Medicaid a higher rate for urinalysis drug screens than he charged Grady Health System; and that he billed Medicaid for medically unnecessary drug tests.

To support these allegations, the State presented evidence that neither Kell nor PCL received any portion of the $300,000 asset sale price from Servicios. Furthermore, following the purported sale, PCL’s lab manager continued to perform her same duties at the lab, Kell ran the lab and served as an Ecomed officer, and Ecomed gave Kell P.C. power of attorney over its Medicaid billings. Kell also sent a letter to the lab’s clients explaining that PCL had simply changed its name to Ecomed and would continue providing clients with the same services. Finally, the State’s expert testified that 96 percent of the checks Ecomed wrote between March 1996 and March 1999 for amounts over $5,000 were made out to Private Clinic, PCL, or Kell P.C. Those payments totaled over $1 million.

Based on the evidence presented, a reasonable factfinder could conclude that Kell maintained control over Ecomed and its Medicaid billings, and he received significant payments from the laboratory. The trier of fact could also find that, although Medicaid paid Ecomed approximately $200 for each urine test conducted between September 1996 and November 1997, the laboratory routinely charged Grady self-pay patients just $19.20 for what Ecomed and Kell employees described as the same test. And the State presented evidence that regulations prohibited providers from billing Medicaid “for an amount greater than the lowest price regularly and routinely offered to any segment of the general public for the same service or item on the same date(s) of service.” Furthermore, the factfinder could determine that Ecomed charged Medicaid to screen patients without a recent history of abuse more than once a month for amphetamines, barbiturates, propoxyphene, and alcohol, despite PCL’s statement in the 1994 Grady bid proposal that only monthly testing was necessary. Finally, Kulas testified that Kell told him how much to bill Medicaid for various services, and the State established that, between September 16, 1996, and September 15, 1997, the DMA wrote numerous checks to Ecomed. From this evidence, a reasonable trier of fact could find Kell guilty beyond a reasonable doubt of Medicaid fraud, as charged in the indictment.

(b) Venue. Nevertheless, because the State failed to prove venue, we must reverse Kell’s conviction. Venue in a criminal case properly lies in the county where the crime was committed. It is an essential element of the crime charged and must be proven by the State beyond a reasonable doubt. Failure to do so “renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal.” Kell asserts that proper venue for the Medicaid charge was DeKalb County, where, the State admits, Ecomed submitted its Medicaid billings. The State counters that the fraudulent scheme underlying those billings took place entirely within Fulton County, establishing venue there. In State v. Johnson, however, our Supreme Court indicated that “venue for the obtaining of medical assistance benefits [under OCGA § 49-4-146.1 (b) (1)] would be ‘the county where a false report was submitted and processed in an attempt to obtain medical assistance.’ ” Thus, the county to which Ecomed submitted the fraudulent billing records — not the county where they were created — is the proper venue under OCGA § 49-4-146.1 (b) (1), the crime charged in the indictment. And the undisputed evidence shows that Ecomed submitted its bills to Medicaid’s fiscal agent in DeKalb County.

In an effort to preserve Fulton County venue, the State argues that Johnson’s discussion of OCGA § 49-4-146.1 (b) (1) is dicta. We agree. But the Supreme Court’s opinion offers guidance as to where an individual commits the crime of improperly obtaining Medicaid benefits, and we refuse to ignore that guidance. The State further asserts that this dicta stems from the concurring opinion in State v. Barber, which noted that venue under OCGA § 49-4-146.1 (b) (1) (A) lies in the county where a false Medicaid bill is submitted. According to the State, because it charged Kell under OCGA § 49-4-146.1 (b) (1) (C), rather than OCGA § 49-4-146.1 (b) (1) (A), Barber’s venue analysis does not apply.

We disagree. Section 49-4-146.1 (b) (1) prohibits obtaining or attempting to obtain Medicaid benefits by “(A) [k]nowingly and willfully making a false statement or false representation; (B) [d]eliberate concealment of any material fact; or (C) [a]ny fraudulent scheme or device.” In contrast to the Barber defendant, Kell was charged with obtaining benefits through a fraudulent scheme or device, placing the allegations within subparagraph (C). We cannot find, however, that the means through which the defendant obtains or attempts to obtain Medicaid benefits alters venue. As indicated in Johnson, the proscribed conduct — improperly obtaining or attempting to obtain benefits — occurs in the county to which Medicaid billing forms are submitted. Thus, although the fraudulent scheme, false statement, or other activity underlying the crime may take place in a different county, venue under OCGA § 49-4-146.1 (b) (1) lies in the county of submission. Accordingly, the trial court erred in refusing to direct a verdict for Kell on this charge, which should have been prosecuted in DeKalb County.

(c) Plea of Former Jeopardy. Kell further argues that the trial court erred in denying his plea of former jeopardy relating to Medicaid fraud. According to Kell, an ultimate issue in this charge — whether he improperly “self-referred” patients to a laboratory in which he held a financial interest — was previously decided favorably to him in a State administrative hearing. In his view, the State was collaterally estopped from relitigating this issue, and double jeopardy barred his prosecution.

The double jeopardy clause embraces the doctrine of collateral estoppel and prevents the same parties from relitigating an issue of ultimate fact previously determined by a valid and final judgment. This doctrine only applies, however, if “[t]he record of the prior proceeding . . . affirmatively demonstrate [s] that an issue involved in the second trial was definitely determined in the former trial.” The mere “possibility that an issue may have been determined in the former trial does not prevent the relitigation of that issue.”

Although the record on appeal contains Kell’s written plea of former jeopardy, no documents relating to the administrative proceeding are attached to that motion. Furthermore, in violation of Court of Appeals Rule 27 (c) (3) (i), Kell’s appellate brief does not cite any record evidence supporting his double jeopardy argument. When it responded to Kell’s motion, the State submitted to the trial court various orders from the administrative proceeding. Those orders, however, shed little light on the self-referral issue, mentioning only that “[t]he allegations . . . that [Kell] violated the provisions of the Patient Self-referral Act were decided by summary determination.” This vague statement tells us nothing about the issue, its scope, or how it was resolved. In short, we do not know what the administrative law judge decided.

Kell has not affirmatively shown by the record that an issue involved in his Medicaid fraud prosecution was definitely determined during the administrative action. Accordingly, we find no error in the trial court’s decision denying Kell’s plea of former jeopardy.

(d) Sentencing. Because we reversed Kell’s Medicaid fraud conviction in Division 1 (b), his challenge to the trial court’s sentence on that count is moot.

2. Kell also argues that the State presented insufficient evidence to support his conviction for conspiracy to defraud the State. We disagree.

The State alleged that, between June 9, 1995, and July 30, 1999, Kell conspired with Culver to “commit theft of moneys belonging to the State of Georgia,” in violation of OCGA § 16-10-21 (a). The State identified numerous overt acts committed in furtherance of this conspiracy, including that both men sought state tax refunds for the 1995 tax year, despite owing tax.

The State presented sufficient evidence to support this allegation. Through tax returns filed in 1996, both Kell and Culver claimed refunds for the 1995 tax year, though the State’s expert testified that they actually owed tax. The refunds each sought equaled the amount of tax that had been withheld from their paychecks in 1995. And to justify their refund claim, Kell and Culver submitted similar — if not identical — affidavits to the Revenue Department asserting that they were not bound by the State’s income tax requirements. The record further showed that Culver notarized Kell’s affidavits.

Based on this evidence, a factfinder could conclude beyond a reasonable doubt that Kell and Culver conspired and schemed to steal money belonging to the State by wrongfully claiming state tax refunds. Although they may not have actually received the claimed refunds, the crime of conspiracy to defraud the State is “complete when the conspiracy or agreement is effected and an overt act in furtherance thereof has been committed, regardless of whether the theft is consummated.” The evidence, therefore, was sufficient to sustain Kell’s conviction under OCGA § 16-10-21 (a).

In this enumeration of error, Kell also complains that the wording of the conspiracy charge in the indictment was deficient in several ways. Even if the indictment was deficient, however, “[a] post-conviction review of an allegation of a defective indictment is one of harmless error.” Thus, “[a] defendant who was not misled to his prejudice by any alleged imperfection cannot obtain a reversal of his conviction on this ground.” Because Kell has not shown any harm from the alleged deficiency, his conviction will not be reversed on this ground.

3. Kell further argues that the trial court erred in refusing to direct a verdict for him on the three tax evasion counts. He claims that the State presented insufficient evidence of his guilt and failed to prove venue in Fulton County. We find no error.

(a) Sufficiency of Evidence to Prove Guilt. In three counts, the State charged Kell with wilfully evading payment of more than $3,000 in state income tax owed in 1996, 1997, and 1998. As defined by OCGA § 48-7-5, a person commits the crime of tax evasion by “willfully evadfing] or defeating] or willfully attempt[ing] to evade or defeat, in any manner, any [state] income tax, penalty, interest, or other amount in excess of $3,000.00 . . . including but not limited to failure to file a return or report.”

The State presented evidence that Kell neither paid state income tax nor filed a state tax return in 1996, 1997, and 1998. Furthermore, in 1996 and 1997, he avoided income tax withholding requirements. And, between 1996 and 1999, Kell paid significant personal expenses out of a First Meliorite Church bank account, into which he deposited checks he received from employee leasing and UD Testing. Finally, the State’s tax expert testified that Kell owed more than $3,000 in state taxes for 1996, 1997, and 1998. The expert further explained that a person must have $53,200 in taxable income to owe at least $3,000 in state income tax.

Kell argues that, despite the tax expert’s testimony, the State did not prove his tax liability beyond a reasonable doubt because it did not allocate to him every possible itemized deduction that he may have been able to claim in 1996, 1997, and 1998. At trial, however, the State tried to give Kell the benefit of the doubt by asking its expert to assume Kell had $100,000 in deductible expenses, over twice the amount claimed in his 1995 state tax return. Kell’s counsel objected to that assumption, and the trial court sustained the objection. Thereafter, the expert factored only the standard deduction and personal exemption into the taxable income formula.

As noted above, Kell did not file state income tax returns in 1996, 1997, and 1998 and thus did not itemize or claim any deductions with the State. And Kell has not cited any evidence that he was, in fact, entitled to itemize any particular amount as a deduction in those years. Furthermore, he refused to allow the State to assume at trial that he was entitled to a significant tax deduction. Under these circumstances, we cannot find that the State failed to prove Kell’s tax liability beyond a reasonable doubt. The State is not required to track down every hypothetical tax deduction that an individual might be able to claim. We agree with federal courts that have found

[w]hile availability of deductions is clearly part of an effective defense to an alleged tax deficiency, a party claiming a deduction must ordinarily establish the right to claim a deduction or an exemption. . . . [A]lthough the burden of proof does not shift in a criminal case, once the government establishes a prima facie case, the defendant must present evidence to overcome the inferences reasonably drawn from the proven facts.

Kell’s claim that the State failed to prove the amount of his 1996, 1997, and 1998 income beyond a reasonable doubt also lacks merit. He first argues that the State did not establish that the money he received from employee leasing constituted wages. We disagree. The evidence showed that employee leasing issued Kell W-2 forms in 1996 and 1997, reporting his wages. Furthermore, between 1996 and 1998, the company issued him checks approximately every two weeks that were handled along with other employee payroll checks. Although employee leasing’s owner refused to characterize these twice-monthly checks as “paychecks” because, at Kell’s request, no taxes were withheld, a rational trier of fact could find that these checks constituted income.

Kell also complains that the State included in his 1996 and 1997 income compensation he earned as a PCL officer during fiscal years spanning from October 1, 1995, through September 30, 1996, and October 1, 1996, through September 30, 1997. The record shows that the State pro-rated this compensation, characterizing part as 1996 income and part as 1997 income. Kell objects to this calculation, arguing that the State failed to prove in which year he actually earned the income. Even without the pro-rated PCL compensation, however, the State showed that Kell earned at least $83,294.56 in 1996 and $192,940.75 in 1997. And simply subtracting the personal exemption and standard deduction from those amounts reveals that Kell’s 1996 and 1997 taxable income far exceeded $53,200, permitting a rational trier of fact to find beyond a reasonable doubt that Kell owed more than $3,000 in Georgia income tax in those years.

Finally, Kell vaguely argues that his failure to pay taxes in 1996, 1997, and 1998 cannot be viewed as “wilful” because he acted in good faith on his attorney’s advice. Pretermitting whether Georgia recognizes an advice of counsel defense in tax evasion cases, Kell has not pointed to any evidence that he, in fact, relied on his counsel’s advice concerning tax liability. On the contrary, Kell cites testimony showing that employee leasing asked its attorney, who also represented Kell, for advice on how to handle Kell’s claimed withholding exemption. None of this testimony, however, indicates that Kell relied in good faith on counsel’s advice.

Based on the evidence presented, a rational trier of fact could find beyond a reasonable doubt that Kell wilfully evaded state income taxes greater than $3,000 in 1996, 1997, and 1998 by not paying any tax or filing returns for those years, improperly claiming exemptions from tax withholdings in 1996 and 1997, and concealing income in a First Meliorite Church account, which he used to pay personal expenses. Accordingly, we find the evidence sufficient to sustain his convictions on the three tax evasion counts.

(b) Venue. Kell also challenges venue for the tax evasion charges, asserting that these charges should have been brought in Cobb County, where he lives. We disagree.

As factual support for venue in Cobb County, Kell cites only his residence there. We cannot find, however, that the defendant’s county of residence necessarily determines venue in a tax evasion case. Instead, the venue inquiry focuses on where the crime was committed. Our Supreme Court has noted that “studying the key verbs which define the criminal offense in the statute is helpful in determining venue in doubtful cases.” Both OCGA § 48-7-5 and the indictment reveal that the key verb in this case is “evaded.” Thus, we must determine where Kell evaded state income tax in 1996, 1997, and 1998.

The evidence showed that Kell received income checks from employee leasing and UD Testing at his offices in Fulton County between 1996 and 1998. As requested in Kell’s withholding exemption certificates, employee leasing did not withhold state income taxes from its checks in 1996 and 1997. Furthermore, Kell listed his Fulton County office as his “home address” on the certificates. The State also presented evidence that the First Meliorite Church, through which Kell concealed some of his income, was located at Kell’s office.

Given this evidence, a rational factfinder could conclude beyond a reasonable doubt that Kell wilfully evaded taxes in Fulton County by receiving paychecks at his Fulton County office that, at his request, did not comply with withholding requirements and were not reported on tax returns; submitting withholding exemption certificates listing his Fulton County office as his home address; and establishing a church in Fulton County through which he funneled his income and paid personal expenses. The trial court, therefore, did not err in refusing to grant Kell a directed verdict on this ground.

4. Finally, Kell argues that venue in Fulton County was improper for Count 4 of the indictment, which charged him under OCGA § 16-10-20 with “knowingly and willfully mak[ing] false writings in his 1995 Georgia income tax return which he caused to be filed with the Georgia Department of Revenue.” According to Kell, the State failed to prove beyond a reasonable doubt that he made the false writings in Fulton County, requiring reversal.

Again, we disagree. Section 16-10-20 prohibits a person from making or using “any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of [the] state government.” Proper venue under this Code section depends on whether the person is charged with making or using the false document. The crime of making a false document occurs where the defendant actually prepares the false writing, rather than where the document is sent. Venue for using a false document, however, rests “in the county in which the document was submitted for use, even if the person charged with using the false document made the document in another county.”

Count 4 charged Kell conjunctively with making a false writing and using that writing by filing it with the Georgia Department of Revenue. The State, however, was not required to prove Kell violated the statute in both ways. Rather, it could make “a prima facie case upon its establishment by proof of [either] one of them.”

The State’s tax expert testified that all state tax returns must be filed with the Department of Revenue in Fulton County. The evidence further showed that Kell, in fact, filed his 1995 return with the Revenue Department. Based on this evidence, a rational factfinder could conclude beyond a reasonable doubt that Kell filed his 1995 state tax return in Fulton County. Regardless of where Kell made the false writing, therefore, the State proved that he used the false writing in Fulton County. Accordingly, venue for Count 4 was proper in Fulton County.

Case No. A01A2319

5. In Case No. A01A2319, Culver argues that the State failed to prove him guilty of Medicaid fraud beyond a reasonable doubt. We agree. The State charged Kell and Culver jointly, asserting that they improperly obtained Medicaid payments for themselves through a fraudulent scheme or device. On appeal, however, the State has made no real effort to link Culver to the Medicaid fraud, and our review of the evidence shows no such link.

The indictment vaguely alleged that Culver helped arrange the sham sale of PCL’s assets to Servicios. Yet, at trial, the State proved only that Culver was Kell’s “right hand man,” served as secretary of PCL, acted as Ecomed’s registered agent, and witnessed signatures on certain documents relating to the sale. Based on the evidence presented, no rational trier of fact could find Culver guilty beyond a reasonable doubt of Medicaid fraud. Culver had an extremely minor role in the actual transaction between PCL and Servicios, and the State offered no evidence that he helped arrange the sale. In its brief, the State notes that Culver witnessed the Servicios representative’s signature on the trust agreement appointing Bailey as trustee, but later told investigators that he did not recall meeting the representative. That evidence, however, does not prove Culver’s participation in the scheme beyond a reasonable doubt.

The State has pointed to no evidence that Culver took part in the Medicaid billings or Ecomed’s drug testing, profited from improper billings, or had any substantive involvement in PCL’s sale to Servicios. Although the evidence showed that Culver was Kell’s “right hand man,” that position does not prove him guilty of Medicaid fraud. Culver’s conviction under OCGA § 49-4-146.1 (b) (1), therefore, must be reversed.

6. Culver similarly challenges the sufficiency of the evidence supporting his conviction for conspiracy to defraud the State. As we found in Division 2, however, a rational factfinder could reasonably conclude that Culver conspired with Kell to steal money belonging to the State by wrongfully claiming state tax refunds. And although Culver, like Kell, challenges the wording of the indictment, he has not shown that any alleged deficiency in the language of the conspiracy charge harmed him. Accordingly, this challenge lacks merit.

7. Culver further argues that venue for Count 3, which charged him with “knowingly and willfully mak[ing] false writings in his 1995 Georgia income tax return which he caused to be filed with the Georgia Department of Revenue,” did not lie in Fulton County. In Division 3, we rejected a similar argument raised by Kell, and those principles govern here. The State properly brought Count 3 in Fulton County, where Culver submitted his 1995 tax return.

8. Given our decision in Division 5, Culver’s remaining enumerations of error are moot.

Judgment affirmed in part and reversed in part in Case Nos. A01A2319 and A01A2339.

Johnson, P. J, and Ellington, J, concur.

Decided March 1, 2002

Reconsiderations denied March 19, 2002

Thomas C. Rowsey, for appellant (case no. A01A2319).

Furlong & Franco, Leonard L. Franco, for appellant (case no. A01A2339).

Paul L. Howard, Jr., District Attorney, Thurbert E. Baker, Attorney General, Harrison W. Kohler, Senior Assistant Attorney General, for appellee.

       We note that the statement of facts in appellants’ combined brief has been completely unhelpful in resolving these appeals because it does not contain a single record reference.

       See Ney a State, 227 Ga. App. 496 (489 SE2d 509) (1997).

       (Emphasis supplied.)

       For ease of discussion, we will address these companion appeals in reverse order.

        Ney, supra at 497 (1).

       See Jones v. State, 272 Ga. 900, 901 (537 SE2d 80) (2000).

       Id.

       See OCGA § 49-4-146.1 (b) (1) (C).

       See Jones, supra at 901 (2).

         See id.

       Id. at 901-902 (2).

        State v. Johnson, 269 Ga. 370, 372 (2) (499 SE2d 56) (1998).

       See id.

       See id. (issue presented involved proper venue under OCGA § 16-10-20).

       260 Ga. 269 (394 SE2d 353) (1990) (Weltner, J., concurring).

       See Johnson, supra.

       See id.; cf. State v. Barber, 193 Ga. App. 397, 398 (388 SE2d 350) (1989) (the crime of falsifying a Medicaid document under OCGA § 49-4-146.1 (b) (2) takes place where defendant prepares false document).

       See Sanchez v. State, 242 Ga. App. 686, 688 (3) (530 SE2d 775) (2000).

       (Punctuation omitted.) Id.

       (Emphasis in original.) Id.

       See Thomas v. State, 215 Ga. App. 522, 523 (451 SE2d 516) (1994) (jury authorized to find appellant guilty of conspiracy to defraud the State based on his participation in conspiracy to wrongfully obtain state tax refunds).

       OCGA § 16-10-21 (a).

       See Thomas, supra; see also Young v. State, 205 Ga. App. 357, 363 (5) (422 SE2d 244) (1992) (State need not prove all overt acts alleged in the indictment to sustain conviction for conspiracy to defraud the State; “[t]he crime is complete when the agreement is effected and an overt act in furtherance thereof has been committed”) (emphasis in original).

        Bullard v. State, 242 Ga. App. 843, 849 (9) (530 SE2d 265) (2000).

       Id.

       See id.

       (Citations omitted.) United States v. Reed, 821 F2d 322, 325 (6th Cir. 1987); see also United States v. Frumenti, 1991 U. S. App. LEXIS 8814, *8-9 (D) (9th Cir. 1991) (“Once the government establishes a nondisclosure and at least the prima facie existence of a [tax] deficiency, the burden then shifts to the defendant to negate the deficiency by showing that it was wrongly computed or cancelled out by another deduction.”); United States v. Hiett, 581 F2d 1199, 1202 (II) (5th Cir. 1978) (“In a prosecution for income tax evasion, once the government has established the defendant’s unreported income and has allowed both the deductions that the defendant claims and those that it can calculate without the defendant’s assistance, it is not then required to prove that the defendant has no other deductions. The burden of proving additional deductions is on the defendant.”).

       See Spies v. United States, 317 U. S. 492, 499 (63 SC 364, 87 LE 418) (1943) (construing federal tax evasion statute, Court noted that a wilful attempt to evade taxes could be inferred from “conduct such as keeping a double set of books, making false entries or alterations, or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one’s affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or to conceal”).

       See Barber, 193 Ga. App. at 398.

       (Punctuation omitted.) Johnson, supra at 372 (2).

       See Spies, supra.

       See Johnson, supra.

       See Spray v. State, 223 Ga. App. 154, 157-158 (2) (476 SE2d 878) (1996).

        Johnson, supra.

       See Stander v. State, 226 Ga. App. 495, 497 (1) (486 SE2d 712) (1997):

       (Punctuation omitted.) Id.; see also Locklin v. State, 228 Ga. App. 696, 697 (1) (a) (492 SE2d 712) (1997) (“When an indictment alleges that a crime was committed in more than one of the separate ways specified by the statute, the State need only prove the crime was committed in one of those separate ways.”).

       See Johnson, supra.

       Compare Bullard, supra at 843-844 (1) (although defendant did not actively participate in actual billing of Medicaid claims, evidence supported Medicaid fraud conviction because State showed that she took part in overarching fraudulent scheme).

       See id. at 849.