author: McMillian, Judge.

text:
    A17A1041.
    PERFORMANCE AUTO COLLISION CENTER INCORPORATED v. BRIDGEFIELD CASUALTY INSURANCE COMPANY.
    (803 SE2d 798)
   McMillian, Judge.

Performance Auto Collision Center Incorporated (“Performance Auto”) appeals from the trial court’s order granting summary judgment to Bridgefield Casualty Insurance Company (“Bridgefield”) in this dispute over reclassification of Performance Auto’s workers for purposes of determining the total amount of premium due under a workers’ compensation policy issued by Bridgefield for the policy year beginning in February 2013 and ending in February 2014 (the “2013-2014 Policy Period”). As more fully set forth below, we now reverse.

Performance Auto operates an automobile repair and body shop at several locations in Alpharetta, Georgia. In 2012, Performance Auto applied for workers’ compensation insurance with Bridgefield. At the time the initial policy was issued and during the subsequent renewal at issue here, Performance Auto’s employees were assigned to two separate classifications—clerical and auto body painting/repair — for the purpose of assessing the insurable risk which, along with payroll, would broadly speaking determine the initial policy premium. However, under the terms of the Policy, and consistent with industry custom, the initial assessment of premium at the beginning of the policy period was considered to be an estimate, and the final premium amount due could be adjusted based on an audit conducted at the end of the policy period. Specifically, Part Five of the policy provided in pertinent part:

E. Final Premium
The premium shown on the Information Page, schedules, and endorsements is an estimate. The final premium will be determined after this policy ends by using the actual, not the estimated, premium basis and the proper classifications and rates that lawfully apply to the business and work covered by this policy If the final premium is more than the premium you paid to us, you must pay us the balance. If it is less, we will refund the balance to you. The final premium will not be less than the highest minimum premium for the classifications covered by the policy.

In October 2014, Bridgefield performed a final audit for the 2013-2014 Policy Period (“Final Audit”), which resulted in a reclassification of certain employees and an increase of $27,497.38 in the final premium amount billed to Performance Auto. Performance Auto disputed the reclassification and refused to pay the final premium amount, and Bridgefield filed this suit to recover the balance it alleged was due. Performance Auto filed an answer and counterclaim contending that through an error committed by a third party, it had overpaid its monthly workers’ compensation premiums to Bridgefield by $7246.90 a month and thus sought a refund of that amount, or a set-off of that amount against any amount it might be found to be liable to Bridgefield for the final premium.

Bridgefield filed a motion for summary judgment based on the Final Audit and a December 2013 inspection and classification report conducted at Performance Auto’s behest by the National Council on Compensation Insurance (“NCCI”), which found that the front office workers should be classified as auto body repair instead of clerical because the front office area was not physically separated from the body repair part of the building by walls and partitions. Bridgefield also sought dismissal of Performance Auto’s counterclaim because Bridgefield had no relationship with the third party to which Performance allegedly overpaid its premiums.

Performance Auto opposed the motion, arguing that an audit performed by a different insurer for the 2014-2015 year (“Subsequent Audit”), supported its classification of certain front office workers as clerical. Performance Auto also submitted the affidavit of its owner, Sal Akturk (“Akturk affidavit”), who opined that the job duties, descriptions, functions, and physical locations of its employees had remained the same during the 2013-2014 Policy Period through the date of the Subsequent Audit. Performance Auto also submitted the affidavit of its insurance account representative Allison Wooten (“Wooten affidavit”), who opined she was familiar with Performance Auto’s business operations and physical layout during both the Policy Period and Subsequent Audit time frame and that its business operations, including the duties of its employees, and physical layout had remained the same during the two consecutive policy periods. Wooten also attached photographs to her affidavit, which she averred showed that the front office area was physically separated from the repair part of the shop by partitions and walls, contrary to the findings stated in the NCCI report. Performance Auto argues that this evidence is sufficient to create a jury issue concerning the factors that should be used to classify its employees and which employees should be classified as clerical or body repair workers.

Decided August 10, 2017.

David A. Anton, for appellant.

We agree. Although Bridgefield argues that the Subsequent Audit was irrelevant because it was performed for a different policy period and for a different insurer, the Akturk and Wooten affidavits sufficiently established that Performance Auto’s business operations, including the job duties, descriptions and functions of its employees, as well as its physical layout of the disputed front office area, had remained unchanged from the Policy Period to the time the Subsequent Audit was conducted. And contrary to Bridgefield’s contention on appeal, Wooten did not offer this opinion as an expert, but as someone who was familiar with Performance Auto’s business during the relevant time periods in connection with the very policy at issue. Performance Auto presented evidence showing that the two audits classified employees doing the same jobs differently, as well as sufficient evidence, including the photographs attached to Wooten’s affidavit, to create a disputed issue of fact for the jury to resolve concerning the classification of workers. Although Bridgefield argues in its reply brief that the Subsequent Audit was not specific enough, our review shows that it contains a list of the specific employees classified by the auditor as clerical, and it is for a jury to sort out how to classify the disputed employees under proper classification methods. Accordingly, the trial court’s order granting Bridgefield’s motion for summary judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Barnes, P. J., andMercier, J., concur.

Kitchens Kelley Gaynes, Bryan S. Kaplan, C. Joseph Hoffman, J. Jason Smith, for appellee.

       More specifically, premiums under a workers’ compensation policy are determined by multiplying the payroll or other remuneration payable during the policy period for each employee by each employee’s classification rate, with adjustments for certain modifiers, ratings, and discounts.

       See Amtrust North America, Inc. v. Smith, 315 Ga. App. 133, 133-34 (726 SE2d 628) (2012); Dennis Perry Homes, Inc. v. Companion Property & Cas. Ins. Co., 311 Ga. App. 706 (716 SE2d 798) (2011).

       The Policy also contained provisions governing the calculation of the premium in the event the Policy was canceled prior to the end of the policy term, which are not at issue here.

       The reclassification appeared to be based in part on comparison of wages for various positions and a review of the job functions of certain clerical and sales positions, which concluded that these positions were also carrying out other “body shop duties.”

       In its motion for summary judgment, Bridgefield also contended that Performance Auto’s own estimates of its payroll as reflected on its 2012-2013 policy year application supported the reclassification. Performance Auto argues reliance on its application was inappropriate, and Bridgefield now says that it did not rely on the application as evidence of the correct employee classification at the end of the 2013-2014 Policy Period. Thus, we will not consider this evidence as supporting its motion for summary judgment.

       Although Performance Auto also asserts on appeal that the trial court erroneously construed the Policy to prohibit it from presenting any evidence to dispute Bridgefield’s Final Audit, the record reflects that Performance Auto was accorded the opportunity to present argument, both oral and written, in opposition to Bridgefield’s motion and accompanying evidence such that no due process violation has been shown. Further, Bridgefield concedes that Performance Auto was permitted under the terms of the Policy and case law to challenge the results of the audit. See Dennis Perry Homes, 311 Ga. App. at 709-10.

       The Auditor is listed as “Leigh Freeman,” and there is no allegation that this auditor was not qualified to render such a report.

       It appears that the NCCI report was based primarily on the physical layout of the office, while the Final Premium Audit concluded that “the wages being paid would indicate that there are no real clerical positions and the employees are carrying out service writing and estimating type duties or other body shop operations.”


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A17A1162.
    MIKE’S FURNITURE BARN, INC. et al. v. SMITH.
    (803 SE2d 800)
   MILLER, Presiding Judge.

More than seven years after appellee Cheryl Smith failed to repay a loan, appellant Mike’s Furniture Barn (“MFB”) foreclosed on a security deed for Smith’s home. Smith filed a complaint seeking to set aside the foreclosure sale and enjoin defendants MFB, Michael Miller, Richard Plymale, and Kristine R. Moore Tarrer (collectively “the MFB Appellants”) from taking any further dispossessory action. The trial court found that the security deed at issue was subject to a statutory seven-year reversionary period and, therefore, title to the property had already reverted back to Smith prior to the foreclosure sale. Accordingly, the trial court set aside the foreclosure sale and enjoined the MFB Appellants from taking further action. The MFB Appellants now appeal, and, for the reasons that follow, we affirm.

The limited record before us shows that, in October 2002, Smith borrowed $2,154.22 from MFB. Smith executed a promissory note (“the Note”), which identified the collateral merely as “[t]he goods or property being purchased,” and further indicated that Smith was giving MFB a security interest in a “loan on property” The Note provided for payment in 22 installments with a maturity date of August 5, 2003. That same day, Smith executed a deed to secure a debt of $2,100 (“the Deed”) in favor of “Michael G. Miller.” The Deed included a description of the real property at issue and indicated that final payment on the secured debt was due on September 30, 2005. Additionally, the Deed granted Miller the power of sale upon default.

Smith failed to make all of the payments owed. In 2016, more than seven years after the loan maturity date identified in either the Note or the Deed, MFB commenced a non-judicial foreclosure on the property identified in the Deed and purchased the property at the foreclosure sale.

Smith filed this wrongful foreclosure action, arguing that (1) MFB was not the holder of the Deed, and (2) prior to the foreclosure, title to the property statutorily reverted to her seven years after the loan maturity date listed on the Deed. The trial court agreed, set aside the foreclosure sale, and granted Smith’s request for an injunction preventing the MFB Appellants from any further attempts to foreclose on the property This appeal followed.

In three related enumerations of error, the MFB Appellants contend that the trial court erred in setting aside the foreclosure sale and granting injunctive relief to Smith because (1) the language in the Note and the Deed should be viewed together; (2) these documents show that the parties intended to extend the statutory rever-sionary period to 20 years; and (3) the trial court erred by limiting the ability of “open-end clauses” to extend the reversionary period to 20 years only in arrangements involving revolving lines of credit.

1. We first consider whether the trial court properly set aside the foreclosure sale. Under Georgia law, only the holder of the deed may initiate foreclosure proceedings. Ames v. JP Morgan Chase Bank, 298 Ga. 732, 741 (3) (e), n. 7 (783 SE2d 614) (2016); You v. JP Morgan Chase Bank, 293 Ga. 67, 69-71 (1) (743 SE2d 428) (2013). Here, Miller, and not MFB, was the holder of the Deed. Thus, MFB had no authority to initiate the foreclosure sale. Ames, supra, 298 Ga. at 741-742 (3) (e), n. 7; You, supra, 293 Ga. at 69-71 (1). Although a security deed can be transferred by assignment, see OCGA § 44-14-64, the record is devoid of any evidence that Miller, individually, transferred the deed to MFB. Thus, because MFB was not the holder of the Deed, it had no right to foreclose on the property, and the trial court properly set aside the foreclosure sale.

2. We next turn to the issue of injunctive relief. The trial court issued the permanent injunction after finding that title to the property reverted back to Smith after seven years because the Deed did not indicate an intent to extend this statutory reversionary period. We agree with the trial court’s analysis.

Georgia law provides that title to property used as collateral for a debt will revert to the grantor

at the expiration of seven years from the maturity of the debt or debts or the maturity of the last installment thereof as stated or fixed in the record of the conveyance .. .; provided, however, that where the parties by affirmative statement contained in the record of conveyance intend to establish a perpetual or indefinite security interest in the real property conveyed to secure a debt or debts, the title shall revert at the expiration of the later of (A) seven years from the maturity of the debt or debts or the maturity of the last installment thereof as stated or fixed in the record of conveyance . . . ; or (B) 20 years from the date of the conveyance as stated in the record ....

OCGA § 44-14-80 (a) (1). Under the plain language of this statute, any intent to create a perpetual and indefinite security interest must appear by an “affirmative statement” in the deed. (Emphasis supplied.) Id. If title has reverted to the grantor under this statute, all actions to foreclose upon and to recover the property are barred. OCGA § 44-14-83. Thus, the question before us is whether the Deed contained a sufficient “affirmative statement” showing the parties’ intent to apply the 20-year reversionary period.

The construction of a deed, like any other contract, is a question of law that we review de novo. Vineville Capital Group v. McCook, 329 Ga. App. 790, 794 (1) (b) (766 SE2d 156) (2014).

The cardinal rule of construction of deeds, as well as other contracts, is to ascertain the intention of the parties. If that intention be clear from the deed and circumstances of the transaction and contravenes no rule of law, it should be enforced. The whole instrument is to be construed together so as to give effect, if possible, to the entire deed[,] and the construction which will uphold a deed in whole and in every part is to be preferred.

(Citations and punctuation omitted.) Id. at 794-795 (1) (b); see also United Bank v. West Central Ga. Bank, 275 Ga. App. 418, 420 (620 SE2d 654) (2005) (this Court interprets a deed like any other contract, subject to the rules of contract interpretation).

The parties agree that the Note and Deed were executed contemporaneously and that the Deed provides the secured collateral for the Note. We point out, however, that these documents are vague and at times inconsistent, and the discrepancies between the Note and Deed may be read to suggest that the two documents do not refer to the same loan. Assuming, as all parties to this appeal and the trial court appear to do, that the two documents concern the same loan and security interest, neither the language in the Deed nor the Note, viewed independently or together, contain an affirmative statement that extends the reversionary period beyond the default seven-year term.

An “open-end” or “dragnet” clause is a clause in a security deed that provides “that, in addition to securing the debt named or described in the instrument,” the deed “shall also secure any other debt or obligation that may be or become owing by the mortgagor or grantor.” OCGA § 44-14-1 (b); Clark v. AgGeorgia Farm Credit ACA, 333 Ga. App. 73, 78 (1) (a) (775 SE2d 557) (2015) (referring to “open-end” and “dragnet” clauses interchangeably). If the security deed includes an “open-end” or “dragnet” clause, then the security interest conveyed by the deed is generally effective as long as any debt between the grantor and grantee remains unsatisfied. Martin v. Fairburn Banking Co., 218 Ga. App. 803, 804 (3) (463 SE2d 507) (1995). Such a clause is an exception to “the general rule .. .regarding instantaneous extinction of the deed and reconveyance to the grantor” upon satisfaction of a debt. (Citation and punctuation omitted.) Id.

In some cases, this Court has held that an open-end clause may constitute an affirmative statement of a perpetual or indefinite security interest that would create the 20-year reversionary period under OCGA § 44-14-80. See, e.g., Stearns Bank v. Mullins, 333 Ga. App. 369, 371 (776 SE2d 485) (2015) (finding affirmative statement in the deed). But we have never held that it must. Cf. Matson v. Bayview Loan Servicing, 339 Ga. App. 890, 892-893 (1) (795 SE2d 195) (2016) (concluding that security deed with open-end clause and certain maturity date did not contain affirmative statement).

The MFB Appellants contend that the Note and Deed contain dragnet clauses and establish the necessary affirmative statement to create an indefinite interest. Specifically, they point to the Note’s provision explaining that the security interest in the collateral remains in existence until the debt is discharged in writing. Further, they argue that the Deed contains the following two provisions that constitute the required affirmative statement: (a) “any and all other indebtedness now owing or which may hereafter be owing by Grantor to Grantee”; and (b) “all renewal or renewals and extension or extensions of the Note or other indebtedness.”

Here, although the Deed contained a dragnet clause, it also identified a fixed maturity date for the secured debt. Few cases have addressed what language is required to constitute an affirmative statement that would extend the reversionary period under OCGA § 44-14-80. In Stearns Bank, supra, this Court held that the security deed at issue contained an affirmative statement serving to extend the reversionary period to 20 years. 333 Ga. App. at 373-374 (1). That case involved an open-ended line of credit, and the deed included a future advance clause covering “any extensions, renewals, modifications or substitutions” of the original evidence of debt. (Punctuation omitted.) Id. at 371. The deed further provided that “[although the Secured Debt may be reduced to a zero balance, this Security Instrument will remain in effect until released.” (Punctuation omitted.) Id. This Court determined that the deed, on its face, showed that the parties intended to establish a revolving line of credit and an indefinite interest in the collateral that required additional action beyond mere payment of the indebtedness to satisfy the debt. Id. at 372 (1). Specifically, this Court concluded that the language sufficiently showed that the parties intended to establish a perpetual and indefinite interest within the meaning of OCGA § 44-14-80, although this Court noted that “it is preferable” for the parties to express their intent more clearly in the deed. Id. at 373 (1).

In comparison, in Matson, supra, 339 Ga. App. 890, this Court concluded that there was no affirmative statement in the security deed that would have extended the reversionary period because, even though the deed indicated that it secured “all renewals, extensions[,] and modifications of the Note,” the deed also contained “a date certain for the maturity of the Note.” (Punctuation omitted.) Id. at 892-893 (1).

We conclude that the facts of this case are more akin to the facts of Matson, and we are persuaded by the reasoning in that case. Although the Deed here contains an open-end or dragnet clause, it also contained a fixed maturity date. Moreover, unlike the transaction in Stearns Bank, this case did not involve a revolving line of credit, which is, by definition, an indefinite and perpetual arrangement. See Stearns Bank, supra, 333 Ga. App. at 372 (1); see OCGA § 44-14-3 (a) (6) (defining a “revolving loan account”). Given the fixed maturity date in the Deed, with a loan for a sum certain rather than a revolving line of credit, we conclude that the Deed lacks an affirmative statement of intent to create a perpetual and indefinite security interest in the property

Decided August 10, 2017.

Kerry S. Doolittle; Cruser, Mitchell, Nouitz, Sanchez, Gaston & Zimet, William T. Mitchell, Jessica F. Hubbartt, for appellants.

Turkheimer & Hadden, John D. Hadden; Ben F. Windham; E. Janes Boswell, for appellee.

Even if we view the Deed together with the Note, as the MFB Appellants contend we must, we are not persuaded that the parties affirmatively evidenced their intent to extend the reversionary period in this case. The Note contains its own dragnet clause, indicating that the parties contemplated that the collateral would “secure . . . any other secured debt [Smith owed MFB] now or hereafter.” Additionally, the Note specifically provides that the security interest will survive even in the absence of any debt, until formally discharged in writing. At the same time, however, the Note also contemplates a fixed maturity date as well as a set number of payments. When we compare the language in the open-end clauses with the fixed maturity dates, set number of payments, and fixed loan amounts, we have, at the very least, conflicting terms that create an ambiguity, which cannot constitute an affirmative statement of intent. See Clark, supra, 333 Ga. App. at 77 (1) (a) (defining ambiguity as “duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, [as well as] being open to various interpretations”) (citations and punctuation omitted).

For the foregoing reasons, we conclude that the trial court properly set aside the foreclosure sale because MFB was not the holder of the Deed and thus had no legal right to foreclose on the property We further conclude that the trial court properly enjoined the MFB Appellants from taking any further dispossessory action because neither the Deed alone nor the Deed in conjunction with the Note includes an affirmative statement of an intent to extend the reversionary period to 20 years. Therefore, we affirm the trial court’s order.

Judgment affirmed.

Doyle and Reese, JJ., concur.

       Michael Miller is the president of MFB, Tarrer is counsel for MFB, and Plymale “cried out” the foreclosure sale. Tarrer is named as a defendant both individually and as Kristine R. Moore Tarrer, LLC.

       We have jurisdiction to consider this appeal because it involves the grant of a final injunction. See OCGA § 5-6-34 (a) (4).

       The Deed was recorded in Deed Book 749, pages 149-151, Greene County, Georgia Records on May 3, 2004.

       The trial court implicitly denied the MFB Appellants’ counterclaims for wrongful restraint, punitive damages, and attorney fees when it set aside the foreclosure sale and granted the injunction against them. The MFB Appellants did not file a notice of appeal from the denial of their counterclaims and do not argue on appeal that the trial court erred in this regard. Additionally, the trial court did not award any of the damages or fees Smith requested in her complaint, and Smith does not appeal from or argue any error in this regard. Therefore, we do not address these issues. Young v. Turner Heritage Homes, 241 Ga. App. 400, 401 (2) (526 SE2d 82) (1999) (matters not enumerated as error are deemed abandoned).

       This issue was properly raised before the trial court.

       The documents contain different loan amounts, different grantees, conflicting maturity dates, and seemingly different collateral. These discrepancies do not affect our analysis concerning the reversionary interest.

       The clause at issue in Martin stated that the deed secured “any and all other indebtedness which said grantor may now or may hereafter owe said grantee.” (Punctuation omitted.) Martin, supra, 218 Ga. App. at 804 (3).

       This Court in Stearns noted that, in a subsequent transaction, the parties added the following language: “Grantor and Grantee agree, by this affirmative statement pursuant to OCGA § 44-14-80, to establish a perpetual or indefinite security interest in the property to secure the secured debt.” (Punctuation omitted.) Stearns, supra, 333 Ga. App. at 373 (1) n. 7. Such language would certainly be helpful as evidence of an intent to extend the reversionary period.


author: Doyle, Judge.

text:
    A17A0740.
    WILLIAMS v. THE STATE.
    (804 SE2d 668)
   Doyle, Judge.

After a jury trial, Harold Williams was convicted of four counts of aggravated assault, five counts of possession of a firearm during the commission of a crime, one count of kidnapping, two counts of armed robbery, one count of burglary, and two counts of hijacking a motor vehicle. Williams unsuccessfully moved for a new trial, and he now appeals, arguing that (1) the trial court erred by admitting extrinsic act evidence under OCGA § 24-4-404 (b), and (2) the evidence was insufficient to support the verdict. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that on April 5, 2010, Darren Daniel was in front of his home in Clayton County, Georgia, unloading groceries from his roommate’s Mitsubishi Galant when two men unknown to him, Williams and Tecorey Thrasher, arrived in a Honda. Williams and Thrasher demanded money from Daniel while holding him at gunpoint, but when Daniel had none, they forced him to drive to an ATM at a nearby gas station. Daniel went inside the store and borrowed a phone to dial 911, and the attackers soon drove off in the Mitsubishi, which contained his house and car keys. Police arrived, took Daniel’s statement, and drove him home, where he discovered that his Jeep had been stolen along with other items in his home. The Mitsubishi was later discovered abandoned and burned in a wooded lot. Officers found a Honda parked down the street from where Daniel had seen Williams and Thrasher park before he was approached with a gun. The Honda was later determined to be stolen from Kenya Clement one or two days earlier. Daniel was able to identify both Williams and Thrasher in separate photographic lineups.

Two days after the Daniel robbery, on April 7, 2010, in Newton County, Luis Fonseca was approached by a group of four men at approximately 10:00 p.m. in front of his father-in-law’s home. One man pointed a gun at Fonseca, his wife, and his young daughter. Fonseca handed over the keys to his Mazda out of fear. Fonseca testified that he had several baseball hats inside the car when it was stolen, and he had noticed a black Jeep parked outside a nearby car dealership before he arrived at his father-in-law’s home. Mikale Mitchell, an associate of Williams’s, testified at trial that the Jeep had run out of gas, and he, Williams, and two other friends (Jerricus Benton and Tecorey Thrasher) got out of the car and walked to a neighborhood, where they saw Fonseca’s family outside. Mitchell stated that they were picked up by Williams in a vehicle later identified to be Fonseca’s. Newton County police investigated the suspicious Jeep, finding that the tag was registered to the Mitsubishi stolen earlier from Daniel’s roommate. The VIN of the Jeep showed up as reported stolen in Clayton County

Approximately two or three hours later, just after midnight on April 8, 2010, Ruth Blanton was in her car in a CVS parking lot when two men approached her with a gun and demanded her car keys. After she handed her keys to one man, the other struck her in the head with a gun. The men then entered Blanton’s Nissan Sentra and drove away Thirty-five minutes later, a state trooper spotted Blanton’s car traveling 110 mph on 1-20. The trooper pursued the car until it crashed. At the time of the crash, Williams and Thrasher fled into the woods leaving Benton and Mitchell in the back seat. Daniel’s keys along with Fonseca’s hats were found inside Blanton’s stolen Sentra. No weapons were located inside of the vehicle.

Hours later, Devona Giles, Thrasher’s mother, called the police to inform them that Thrasher was injured and had been threatened by Williams at gunpoint. Police found Williams with Giles in the Newton County Medical Center parking lot, and Williams was detained. Williams later admitted to being in the stolen vehicle that had crashed during the police chase.

Williams was charged with multiple offenses stemming from these events in an 18-count indictment in Clayton County He was indicted, tried, and found guilty in Newton County of the carjacking against Fonseca prior to the trial in this case. Following a jury trial in Clayton County as to the crimes against Blanton and Daniel, Williams was acquitted of one offense of theft, the trial court directed a verdict as to two counts, and he was convicted of the remaining counts. Williams moved for a new trial, which motion was denied, giving rise to this appeal.

1. Williams argues that evidence that he committed the Newton County carjacking was improper extrinsic evidence under OCGA § 24-4-404 (b). Specifically, he asserts that the evidence failed to identify him as the perpetrator of the Newton County offenses and that the evidence was confusing and needlessly cumulative. We disagree.

We review the admission of such evidence for a “clear abuse of discretion.”

OCGA § 24-4-404 (b) provides:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

Nevertheless, the trial court ruled that the evidence of the Newton County offense, i.e., stealing Fonseca’s Mazda, was intrinsic factual evidence “inextricably intertwined” with the crimes charged in this case.

Under longstanding Georgia law, all the acts and circumstances surrounding and constituting the res gestae are admissible, despite the fact that they may reflect poorly on a defendant’s character. This rule [was] carried forward to the new Evidence Code under the concept of “intrinsic facts” evidence, as compared to evidence of “extrinsic acts” which are generally inadmissible pursuant to OCGA § 24-4-404 (b). Under relevant federal authority, evidence is intrinsic to the charged offense, and thus does not fall within Rule 404 (b)’s ambit, if it (1) arose out of the same transaction or series of transactions as the charged offense; (2) is necessary to complete the story of the crime; or (3) is inextricably intertwined with the evidence regarding the charged offense. Moreover, evidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive, and set-up of the crime, is properly admitted if linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.

Here, the Newton County crime was the middle carjacking in a spree of three carjackings over a three-day period, and it occurred a mere two or three hours before the third and final carjacking. Thus, the Newton County evidence established the complete time line of the consecutive carjackings, and items from the first two carjackings were found in the vehicle stolen in the third hijacking. Further, Williams was positively identified by the first victim, evidence from the third carjacking tied him to the first and second, and he admitted being in the third stolen vehicle when it crashed. This shows that the Newton County carjacking was inextricably intertwined with the first and third carjackings.

To the extent that Williams argues that the evidence was unduly prejudicial under OCGA § 24-4-403,

in cases where [courts have] found other acts evidence inextricably intertwined with the crimes charged, the [c]ourt has refused to find that the evidence should nonetheless be excluded as unduly prejudicial. The test [for undue prejudice] under [OCGA § 24-4-403] is whether the other acts evidence was “dragged in by the heels” solely for prejudicial impact. Because the other acts evidence was inextricably intertwined with the charged crimes, it was not excludable under [OCGA § 24-4-403].

Based on this record, we discern no abuse of discretion in the trial court’s admission of the Newton County evidence as inextricably intertwined with the indicted offenses.

2. Williams argues that the evidence of his identity was insufficient to support the jury’s finding of guilt. Specifically, he challenges the testimony by Mitchell, who testified against Williams in exchange for leniency by the State for Mitchell’s involvement in the Newton County carjacking. This argument is without merit.

When an appellate court reviews the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Decided August 11, 2017.

The Leslie Group, Deborah L. Leslie, for appellant.

Tracy Graham Lawson, District Attorney, Jeffery M. Gore, Elizabeth A. Baker, Elizabeth C. Rosenwasser, Assistant District Attorneys, for appellee.

Here, there was evidence from the first carjacking victim, Daniel, identifying Williams as a perpetrator. Also, as noted in Division 1, stolen items from the first two carjackings were found in the vehicle recovered from the third, in which vehicle Williams admitted riding when it crashed during a police chase. And the Jeep stolen as part of the first carjacking was later connected via separate eyewitness testimony to the second (Newton County) carjacking. Finally, “[t]he jury[, not this Court,] is to determine the credibility of witnesses, so the truthfulness of those witnesses, including that of possible accomplices, was for the jury to decide.” Likewise, “[i]t was for the jury to decide . . . whether the accomplice’s testimony was sufficiently corroborated” by the other evidence in the case, including Williams’s own statements and the evidence linking him to the three carjackings. Therefore, based on the record before us, the evidence authorized the jury’s finding of guilt.

Judgment affirmed.

Ellington, P. J., and Andrews, J., concur.

       OCGA § 16-5-21 (a) (1), (2).

       OCGA § 16-11-106 (b) (1).

       OCGA § 16-5-40 (a).

       OCGA § 16-8-41 (a).

       OCGA § 16-7-1 (b).

       OCGA § 16-5-44.1 (b).

       See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Daniel died prior to the trial in this case. The State read into the record parts of his sworn testimony from a prior proceeding in which he described the crimes at issue.

       Clement did not identify Williams as the person who stole her car.

       The present case does not include the Newton County offenses.

        Brooks v. State, 298 Ga. 722, 724 (2) (783 SE2d 895) (2016).

       (Citations and punctuation omitted; emphasis supplied.) Baughns v. State, 335 Ga. App. 600, 602-603 (1) (782 SE2d 494) (2016), citing United States v. Nowak, 370 Fed. Appx. 39, 41 (I) (11th Cir. 2010); United States v. Edouard, 485 F3d 1324, 1344 (II) (C) (11th Cir. 2007).

        See Baughns, 335 Ga.App. at 602 (1), n. 7 (collecting cases).

       (Citations and punctuation omitted.) United States v. McNair, 605 F3d 1152, 1206 (VIII) (11th Cir. 2010).

        See Baughns, 335 Ga.App. at 603 (1).

       (Citation omitted; emphasis in original.) Jackson, 443 U. S. at 319 (III) (B).

       (Punctuation omitted.) Handley v. State, 289 Ga. 786, 787 (1) (716 SE2d 176) (2011).

        Daniels v. State, 339 Ga. App. 837, 840 (795 SE2d 94) (2016). Williams does not argue that the State’s case lacked sufficient corroboration.


author: Dillard, Chief Judge.

text:
    A17A1050.
    A17A1051.
    COTMAN v. THE STATE. WILLIAMSON v. THE STATE.
    (804 SE2d 672)
   Dillard, Chief Judge.

In 2010, Governor Sonny Perdue ordered a special investigation into the nearly decade-long suspicions that administrators, principals, and teachers in the Atlanta Public Schools System (“APS”) had engaged in widespread cheating on standardized tests used to assess the progress of elementary and middle-school students in Georgia. After the conclusion of that investigation, the State indicted 35 APS administrators, principals, and teachers for crimes ranging from altering State documents, providing false statements to law-enforcement officials, and conspiring to violate the Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act. Ultimately, the State jointly tried 12 defendants, including School Reform Team Executive Director Tamara Cotman and elementary school teacher Angela Williamson. Then, following a six-month trial, a jury convicted 11 of the defendants, specifically convicting Cotman and Williamson of conspiring to violate RICO and also convicting Williamson on two counts of making false writings and two counts of false swearing.

In separate appeals, which we have consolidated for review at the parties’ request, Cotman and Williamson contend that the trial court erred by instructing the jury that it could find that they violated either of the two subsections of the RICO statute despite the indictment charging the violation in the conjunctive, failing to find that this instruction created a fatal variance, and sentencing the defendants under the RICO statute rather than the general conspiracy statute. Cotman further contends that the trial court erred in denying her plea in bar of double jeopardy. Nevertheless, for the reasons set forth infra, we affirm the convictions of both Cotman and Williamson.

APS, Academic Targets, and Adequate Yearly Progress

Viewed in the light most favorable to the jury’s verdict, the record shows that on July 1, 1999, Dr. Beverly Hall became the superintendent of Atlanta Public Schools. Dr. Hall’s administrative staff included Sharon Pitts (who worked as Hall’s Chief of Staff), Colinda Howard (who oversaw the Office of Internal Resolution (“OIR”) and was tasked with investigating employee misconduct), Millicent Few (who worked as the APS Director of Human Resources), and Veleter Mazyck (legal counsel). Additionally, under Dr. Hall, APS was organized into four School Reform Teams (“SRT”), which were specific geographic regions of metropolitan Atlanta and more specifically the elementary and middle schools within those regions. During Dr. Hall’s tenure, Tamara Cotman served as the Executive Director of SRT-4, and as with all of the directors, her responsibilities included providing supervisory guidance to the principals and schools within her region.

Immediately after Dr. Hall was hired as superintendent, she began working with professional education consultants to devise a means by which to measure and improve APS students’ academic progress. Then, after those consultations, Dr. Hall established a system requiring students at all APS elementary and middle schools to be tested so as to determine the numbers of students who “met academic expectations” and the numbers who “exceeded” such expectations. Importantly, every school in APS was required to meet a “Target” number—i.e., a percentage of students in both of these categories, and Dr. Hall mandated that these Target numbers be raised every year.

In January 2002, around the same time that Dr. Hall began implementing her Targets system for APS, the federal government enacted the No Child Left Behind Act of 2001. Under this legislation, the State of Georgia received federal funding to assist low-income school districts and, inter alia, was required to report whether its schools were making what was termed “Adequate Yearly Progress” (“AYP”), which was measured by students’ performance on the annually administered Criterion-Referenced Competency Test (“CRCT”). Schools failing to achieve AYP received additional federal funding to assist teachers and struggling students.

Although inextricably linked, the Targets established by Dr. Hall were separate from the requirements for AYP and, in fact, were more stringent. But in addition to the stated objective of being a means by which to measure students’ academic progress during Dr. Hall’s tenure, Targets quickly became the primary means by which to measure teachers and administrators’ performance. For instance, the SRT Executive Directors, including Cotman, received salary raises if their schools made Targets and AYP, and employees at individual schools would similarly receive bonuses if their schools achieved their Target numbers. Indeed, Dr. Hall’s own employment contracts also provided significant salary bonuses that were contingent upon APS achieving its academic progress Targets.

The failure to make Targets, however, often resulted in negative consequences for APS employees. Specifically, teachers and administrators whose students and schools failed to meet Targets could be demoted (resulting in a decreased salary), transferred (also resulting in a decreased salary), or placed on what was termed a Professional Development Plan (“PDP”), which was often a precursor to the termination of one’s employment contract with APS. Unsurprisingly, the pressure placed on administrators and teachers to make Targets became intense and was exacerbated by the fact that many at APS believed the Targets to be patently unreasonable. Despite such concerns, Dr. Hall was uncompromising in her stance that Targets be met, informing one principal upon his termination for failing to meet Targets, despite his school’s academic progress, that she “had no time for incremental gains.”

Evidence of Cheating Throughout APS

Within a few years of Dr. Hall’s hiring as APS superintendent, large improvements in APS students’ test scores led to suspicions that such gains may have been the result of cheating. Initially, little in the way of concrete evidence demonstrated widespread abuses. But in March 2005, a teacher at Parks Middle School informed the Executive Director of SRT-2 that the newly-hired principal was explicitly promoting cheating on the CRCT. And when it appeared that the Director would not be taking any action, the teacher sent anonymous letters directly to Dr. Hall to inform her of what was taking place at the school. Shortly thereafter, the SRT-2 Director attended a staff meeting at Parks Middle School, acknowledged the anonymous letters, but ordered that they cease, stating that the principal had the backing of Dr. Hall and would not be leaving. Nevertheless, APS directed Reginald Dukes, a private investigator who had worked with APS in the past, to investigate the allegations. On June 30, 2006, after interviewing teachers, including the teacher who first reported the issue, Dukes submitted a report to Dr. Hall, in which he concluded that cheating had occurred at Parks Middle School. But Dr. Hall took no action as a result of the report, and APS never hired Dukes again.

In July 2008, a summer re-test of the CRCT for students from several different, APS schools was conducted at Deerwood Academy During that re-test, several teachers collaborated to erase students’ incorrect answers and change them to the correct ones, and as a result, Deerwood met its AYP target for that year. A few months later, in October 2008, Kathleen Mathers became the executive director of the Governor’s Office of Student Achievement (“GOSA”), an agency tasked with providing data analysis on various education programs in the State. And in reviewing data related to the CRCT, Mathers noticed abnormally dramatic increases in student achievement within APS, including at Deerwood Academy, in comparison to scores statewide. In addition, her office and the Assessment Division of the Georgia Department of Education were receiving numerous anonymous complaints from parents and teachers of cheating at APS schools. Around this same time, the Atlanta Journal-Constitution (“AJC”) published an article regarding the unusual gains in test scores within APS, in which they quoted an expert in the field of psychometrics, who stated that the gains were as “extraordinary as a snowstorm in July” and warranted further investigation.

Based on her own suspicions and the AJC’s article, Mathers decided to conduct a statewide erasure analysis on all of the 2008 CRCT summer re-tests. In essence, such an analysis entailed scanning the tests with an Optical Mark Recognition machine that determines if answer bubbles, in addition to the one ultimately filled, also contain residual amounts of pencil graphite, indicating that the bubble had been filled but later erased. The analysis was completed in April 2009, and based on the results, which showed that 11 Deerwood students had significantly high instances of erasing a wrong answer and changing it to a correct one (i.e., wrong-to-right erasures), as well as an additional investigation, GOSA concluded that cheating had occurred at Deerwood Academy during the 2008 summer re-test. Thereafter, Mathers attempted to schedule a meeting with Dr. Hall to discuss the erasure analysis, but after being unable to do so, she had a copy of the report hand-delivered to Dr. Hall at a local conference the superintendent was attending.

On June 23, 2009, Mathers met with APS OIR Director Howard and Penn Payne, an external investigator whom APS hired to look into the cheating allegations, and informed them of GOSA’s findings. Following this meeting, on July 6, 2009, Dr. Hall e-mailed Mathers to inform her that APS and Payne had completed investigations and determined that there was no evidence cheating had occurred at Deerwood Academy Then, on August 21, 2009, APS released Payne’s report regarding Deerwood, which found no evidence of cheating. Ultimately, however, Mathers learned that the statements in Dr. Hall’s e-mail and the conclusions in the Payne report were false. In fact, APS had not conducted an internal investigation and, in a draft report that Dr. Hall ordered Few and Howard to destroy, Payne actually concluded that cheating probably occurred at Deerwood during the 2008 summer re-test.

Unsatisfied with APS and Dr. Hall’s response to her concerns, in the autumn of 2009, Mathers decided to conduct a statewide erasure analysis for the 2009 CRCT administered the previous spring. The analysis was conducted by CTB/McGraw Hill, and on January 22, 2010, it released its report, which included the number of wrong-to-right erasures in each school in the state (and in each classroom of every school), and flagged those schools with the highest numbers of wrong-to-right erasures. The report flagged 58 APS schools as having moderate to severe wrong-to-right erasures. Consequently, in February 2010, GOSA ordered APS, as well as other flagged districts, to conduct an internal investigation into the suspected cheating and report its findings by April of that same year. In light of this directive, Dr. Hall assembled a Blue Ribbon Commission (“BRC”) to conduct APS’s investigation. The BRC then hired KPMG and tasked its investigators with interviewing APS teachers and administrators. But additionally, despite Mathers cautioning APS against questioning the erasure analysis, the BRC hired a private company to conduct another such analysis. And on August 2, 2010, based on the second erasure analysis and KPMG investigators’ interviews of APS teachers and administrators, the BRC submitted its report to GOSA, in which itfoundno evidence of cheating. Unconvinced, Mathers rejected the BRC’s findings.

The Governor’s Special Investigation into APS

Following her rejection of the BRC’s report, on August 26, 2010, Mathers requested that Governor Perdue order a special independent investigation into the suspected cheating on the CRCT within APS. Governor Perdue agreed and appointed former Attorney General Michael Bowers, former DeKalb County District Attorney Robert Wilson, and investigator Richard Hyde, with assistance from the Georgia Bureau of Investigation, to investigate the matter. Subsequently, the special investigators went to CBT/McGraw Hill’s headquarters in Indianapolis, Indiana, to replicate and, therefore, verify GOSA’s previous erasure analyses of the 2008 and 2009 CRCTs. As a result, the investigators determined that the previous erasure analy-ses may have even under-reported the numbers of wrong-to-right erasures on those two tests. In addition, from October 2010 through May 2011, the special investigators and GBI agents conducted over 2,100 interviews of APS teachers and administrators employed throughout 55 schools. And despite APS leadership being uncooperative and many teachers lying during interviews, eventually 82 teachers and administrators admitted to cheating during the 2009 CRCT, with many further admitting that such cheating had been occurring at numerous APS schools for years.

On June 30, 2011, the special investigators released their report, concluding that widespread cheating on the 2009 CRCT had occurred within 44 APS schools. Specifically, the special investigators’ report found that teachers and administrators had cheated by numerous means, including violating testing security and storage protocols, changing students’ answers after the tests were completed, providing students with correct answers while the tests were being administered, and copying the tests and reviewing the correct answers with students prior to the tests being administered. In addition, the special investigators found that testing irregularities were witnessed but not reported as required by testing protocols, and that testing coordinators and administrators signed documents stating that protocols were followed despite being well aware that those averments were not true. The report also found that the reasons provided by teachers and administrators for why they cheated were myriad. Many witnesses explained that if they made Targets and AYP (which they claimed was difficult, to do without cheating), they received bonus money and their schools’ achievement would be publicly recognized at APS’s annual year-end convocation. But many more witnesses stated that they engaged in cheating or failed to report cheating they witnessed because of APS’s culture of obsession with Targets and AYP and of punishing anyone who spoke out with demotions or terminations of employment.

Tamara Cotman and, Cheating within SRT-4

As previously noted, from 2004 through 2011, Cotman served as the Executive Director of SRT-4 within APS. In August 2007, Patricia Wells, the principal of Ben Carson Middle School, who began working there the previous year, became concerned that many of her students’ academic performance did not correlate with their elementary school CRCT scores and, therefore, she asked some of the students to explain the discrepancy The students responded that their elementary school teachers had provided them with the answers to the CRCT. And because Ben Carson Middle School was within SRT-4, Principal Wells immediately reported the information to Cotman. But Cotman did not report Wells’s allegations to OIR and took no action to investigate them. Then, at the end of the month, Cotman gave Wells a negative performance evaluation. By October 2007, Cotman placed Wells on a PDP, and in December 2007, Cotman informed Wells that for the next school year she could either accept a demotion to an assistant principal position at a different, school or resign. Wells opted to resign.

Similarly, in the spring of 2007, just before the CRCT, the principal of Scott Elementary called a staff meeting, during which the teachers were shown methods for cheating on the upcoming test. Tonette Hunter, a paraprofessional at the school, was alarmed by the discussion and, thus, reported the incident directly to Cotman. To Hunter’s surprise, Cotman advised her that the issue was none of her business and that she needed to cease discussing it if she wanted to keep her job. A few days before the end of that school year, Cotman terminated Hunter’s employment.

That same school year, Michael Milstead was hired as the principal for Harper-Archer Middle School, and immediately, he began noticing a significant discrepancy between many of his students’ poor academic performance and their high fifth grade CRCT scores. Milstead alerted Cotman regarding this discrepancy, but she did not investigate and, in fact, informed Milstead that other principals did not appreciate him raising this issue. In addition, Cotman continued to place a significant emphasis on making AYP and placed Milstead on PDPs on two occasions when his school failed to meet the goals. Later, Cotman told Milstead that he should resign, as she would not be renewing his contract, and Milstead did so in 2009. Just prior to his resignation, Milstead observed that the previous year’s CRCT scores were significantly higher than the year before, but he had no faith that those scores were legitimate.

In yet another similar incident, Monica Hooker began working as a teacher at Best Academy in its inaugural year (2007-2008), and she was given the added responsibility of collecting testing data for the school. Hooker reported to her principal that the students’ academic performance did not correlate with their high CRCT scores from the previous spring. Cotman responded to Hooker’s report by demoting her and transferring her to another school, complaining to Hooker that she was not playing for the right team. Given Cotman’s constant focus on test scores, Hooker understood her demotion to be a result of her refusal to cheat on the CRCT.

In the spring of 2008, D. C., a third-grade student at Blalock Elementary (a school also within SRT-4), told his mother that his teacher had given students the answers during the recent CRCT. The mother, who had recently heard a similar story from her young niece, then reported her son’s revelation to the school’s principal and Cotman. But rather than investigating or reporting the complaint to OIR, Cotman told the mother that her son was lying. Unpersuaded, the mother filed a complaint with APS’s central office. Subsequently, an investigator with OIR interviewed D. C. and his mother, but no further action was taken. And on September 12, 2008, the mother received a letter from Dr. Hall, stating that there was no evidence that cheating had occurred at Blalock Elementary.

In the spring of 2009, Mary Gordon, a teacher at Turner Middle School, received the answers to the Common Assessment test and students’ answer sheets. But Gordon refused to cheat on the test, and, in fact, reported the incident to Cotman, who refused to investigate the matter. Instead, Cotman advised Gordon: “They just do things like that at Turner.” Later, Gordon was placed on a PDP, and she eventually resigned due to the stress caused by her work environment.

Caitlin Sims was the principal of Grove Park Elementary during the 2008-2009 school year, and she noted that under Cotman, Targets were the number one priority. Indeed, Cotman constantly ranked schools against each other and used PDPs as punishment. Sims also recalled an instance when Cotman gave the principals empty frames and told them to put a picture in the frame of something important, such as a mortgage or car note as motivation for improving their schools’ CRCT scores. After the BRC began its investigation into the cheating allegations, Cotman asked Sims to explain to the commission how the school’s education strategies had resulted in the gains, but Sims refused, explaining that she was uncomfortable doing so based on the fact that the high number of wrong-to-right erasures at Grove Park were difficult to reconcile. Shortly after Sims’s refusal, Cotman placed her on a PDP

Angela Williamson and Cheating at Dobbs Elementary

Angela Williamson was a well-respected fourth grade teacher at Dobbs Elementary, which is within SRT-2. As with most other schools within APS, the pressure to meet Targets at Dobbs was tremendous, and the principal would stress at every staff meeting that Targets had to be met by any means necessary In fact, the principal was so adamant about meeting these goals that she would tell Dobbs’s teachers that they should find new professions if they were unable to make Targets.

In 2007, during CRCT testing, the assistant principal brought the completed tests into a teachers’ meeting at the end of the day and instructed the teachers to “clean up” the tests. When a few of the newer teachers looked confused as to the meaning of this comment, Williamson explained: “If you want to keep your jobs, you better clean these tests up.” Williamson then demonstrated how to use the high achieving students’ tests as a guide for changing the answers on the lower achieving students’ tests.

Several of Williamson’s former students revealed that during the CRCT testing, she would walk around the classroom and provide students with the correct answers if they appeared to be answering questions incorrectly. All of these students further stated that Williamson admonished them not to tell anyone, often stating that “what happened in her class, stayed in her class.” Nevertheless, a few of the students told other teachers about Williamson’s actions. In addition, a paraprofessional, who proctored the CRCT in Williamson’s class, observed her providing students with answers, thus corroborating the students’ accounts of such instances. Moreover, GOSA’s erasure analyses in both 2008 and 2009 showed that numerous students in Williamson’s class had statistically significant high wrong-to-right erasures.

Procedural Background

On March 29, 2013, following the conclusion of the Governor’s Special Investigation, the State charged Dr. Hall, Cotman, Williamson, and 32 other APS administrators, principals, and teachers, via an indictment filed in the Superior Court of Fulton County, with numerous crimes relating to the widespread cheating within APS, including conspiring to violate the Georgia RICO Act, providing false statements to law-enforcement officials, theft by taking, influencing witnesses, and false swearing. More specifically, the State charged Cotman with one count of conspiring to violate the RICO Act and one count of influencing a witness, and it charged Williamson with one count of conspiring to violate the RICO Act, two counts of providing false statements, and two counts of false swearing.

On May 14, 2013, Cotman filed a special demurrer seeking to quash Count 4 of the indictment, which charged her with the offense of influencing a witness. Specifically, Cotman argued that the allegation that she “did knowingly intimidate [principal] Jimmye Hawkins” in an effort to hinder communication with the GBI was too vague. Shortly thereafter, the State re-indicted Cotman solely on the charge of influencing a witness, and then it filed a motion requesting that the trial court enter an order of nolle prosequi as to Count 4 in the original indictment and join the new indictment with the original for trial purposes. But Cotman filed a response objecting to joinder and a motion demanding a speedy trial on the new indictment.

Subsequently, Cotman was tried separately on the sole charge in the new indictment of influencing a witness, and on September 12, 2013, at the conclusion of that trial, the jury found her not guilty One month later, Cotman filed a plea in bar of former jeopardy, arguing that the State was barred from trying her on either the RICO or influencing-a-witness charges in the original indictment. The State filed a response, and following a hearing, the trial court denied Cotman’s plea in bar as to the RICO charge but granted it as to the influencing-a-witness charge. Cotman appealedthe denial ofherplea in bar on the RICO charge, but this Court affirmed the trial court’s ruling, concluding “that Cotman, having opposed the State’s invitation to join the two indictments for a single trial, faces subsequent prosecution because of her own election and thereby waived the protections against subsequent prosecutions afforded by OCGA § 16-1-8 (b).”

On September 29, 2014, after months of discovery, pre-trial motions, and 21 defendants electing to plead guilty, the trial for 12 of the indicted defendants, including Cotman and Williamson, commenced. During the six-month trial, numerous witnesses, including 14 of the defendants who had opted to plead guilty, testified as to the evidence discussed supra. The State rested its case on February 11, 2015, and, thereafter, the defendants presented their respective cases over the course of the following six weeks. Finally, on April 1, 2015, after nearly a week of deliberation, the jury found Cotman and Williamson guilty on the charge of conspiracy to violate the RICO Act and further found Williamson guilty on the two charges of providing false statements and the two charges of false swearing. Both Cotman and Williamson waived motions for new trial, and these appeals follow.

Analysis

1. Cotman and Williamson contend that the trial court erred by instructing the jury that it could convict the defendants if it found that they violated either subsection (a) or subsection (b) of the RICO Act despite the indictment charging the defendants with conspiring or endeavoring to violate subsections (a) and (b), conjunctively We disagree that this instruction constituted error.

At the outset, we note that a trial court’s duty in delivering charges to the jury is to “tailor those charges not only to the indictment but also adjust them to the evidence at trial.” In doing so, a trial court should tailor its charges to “match the allegations of indictments, either by charging only the relevant portions of the applicable Code sections or by giving a limiting instruction that directs the jury to consider only whether the crimes were committed in the manner alleged in the indictment.” And importantly, “in reviewing an allegedly erroneous jury instruction, we apply the plain legal error standard of review.” Bearing these guiding principles in mind, we turn now to the defendants’ specific claim of error.

At the time the indictment in this case issued, OCGA § 16-14-4 (a) of the Georgia RICO Act provided: “It is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money” OCGA § 16-14-4 (b) provided: “It is unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.” And subsection (c) of the Act provided: “It is unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b) of this Code section.”

In Count 1 of the indictment in this matter, the State charged all of the defendants with violating OCGA § 16-14-4 (c) of the RICO Act in that

said accused . . . unlawfully conspired and endeavored to acquire and maintain, directly and indirectly, an interest in and control of U.S. Currency, the property of the Atlanta Public School System (“APS”) and the Georgia Department of Education (“GaDOE”) as further specified below, through a pattern of racketeering activity in violation of OCGA § 16-14-4 (a), and while employed by and associated with APS, unlawfully conspired and endeavored to conduct and participate in, directly and indirectly, APS through a pattern of racketeering activity, in violation of OCGA § 16-14-4 (b), as described below and incorporated by reference as if fully set forth herein; contrary to the laws of said State, the good order, peace and dignity thereof ....

During the charge conference, the State requested that the court instruct the jury that the State only had to prove that the defendants conspired to violate subsection (a) or subsection (b), even though the indictment stated that the defendants had violated both subsections, conjunctively Over the defendants’ objection, the court agreed. And indeed, after it instructed the jury on the State’s burden of proof and the law pertaining to the RICO Act and conspiracy, the trial court instructed the jury specifically regarding Count 1 of the indictment as follows:

Some crimes, such as those charged in the indictment, may be committed in more than one way Each defendant may only be convicted of the alleged charge in the specific manner that the defendant has been charged in this indictment.
I charge you that, whereas in Count 1 of the indictment, the State alleges that the defendant committed a crime in more than one way, the State need not prove that the defendant committed the crime in each way charged.
Rather, it is sufficient if you, the jury, should find beyond a reasonable doubt that the defendant committed the crime in at least one way, one of the ways alleged.

As previously noted, Cotman and Williamson contend that the trial court erred in essentially instructing the jury that it could convict the defendants of violating OCGA § 16-14-4 (c) disjunctively, i.e., by finding that the defendants committed the crime in at least one of the two ways charged, even though the indictment charged the offenses conjunctively But it is well settled that

when a defendant is charged, as in this case, with the violation of a criminal statute containing disjunctively several ways or methods a crime may be committed, proof of any one of which is sufficient to constitute the crime, the indictment, in order to be good as against a special demurrer, must charge such ways or methods conjunctively if it charges more than one of them.

And at trial, it is sufficient for the State to show that “it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.” Moreover, as noted supra, the trial court here also charged the jury that the burden was on the State “to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” Accordingly, the trial court did not err in instructing the jury that the State could prove that the defendants conspired to violate the RICO Act in at least one way of the two ways alleged.

In her reply brief, Cotman cites to United States v. Gipson and proffers the novel contention that the trial court’s challenged instruction constituted error because it allowed the jury to render a non-unanimous verdict as to Count 1. But pretermitting whether Cotman has waived this contention, given that she failed to specifically object to the trial court’s instruction on this ground, failed to object to the verdict form, and, as noted, raised this issue for the first time in her reply brief, it nevertheless lacks merit.

In Gipson , the defendant was charged with one count of transporting a stolen vehicle in interstate commerce, in violation of 18 USC § 2312, and one count of selling or receiving a stolen vehicle moving in interstate commerce, in violation of 18 USC § 2313. Not long after beginning deliberations, the jury requested additional instructions from the court via a note that read, “In Count Two, will he be guilty of all counts or will it be broken down?” Perceiving that the question could be interpreted several ways, the trial court gave instructions responsive to each interpretation. In response to its third interpretation of the jury’s question, the court charged the jury as follows:

A third question that may be the one that the jury is really asking is, must there be an agreement by all twelve jurors as to which act of those several charged in Count Two, that the defendant did. For example, would it be possible for one juror to believe that the Defendant had stored property, and another juror to believe that he had received property, and so on. If all twelve agreed that he had done some one of those acts, but there was not agreement that he had done the same act, would that support a conviction? The answer is yes. If each of you is satisfied beyond any reasonable doubt that he did any one of those acts charged, and did it with the requisite state of mind, then there would be a unanimous verdict, and there could be a return of guilty under Count Two of the indictment, even though there may have been disagreement within the jury as to whether it was receiving or storing or what.

Subsequently, the defendant objected, but the trial court overruled the objection. And at the conclusion of the trial, the jury acquitted the defendant on Count One but convicted him on Count Two. But the United States Court of Appeals for the Fifth Circuit reversed the conviction, finding that the trial court’s instruction

authorized the jury to return a guilty verdict despite the fact that some jurors may have believed that [the defendant] engaged in conduct only characterizable as receiving, concealing, or storing while other jurors were convinced that he committed acts only constituting bartering, selling, or disposing. Thus, under the instruction, the jury was permitted to convict [the defendant] even though there may have been significant disagreement among the jurors as to what he did.

Accordingly, the Fifth Circuit concluded that the instruction was “violative of [the defendant’s] right to a unanimous jury verdict.”

Nevertheless, in this matter, Cotman’s argument that the trial court’s instruction similarly sanctioned a non-unanimous verdict strains credulity given that the two cases are in no way factually analogous. Indeed, unlike the instruction at issue in Gipson, the trial court in this matter did not instruct the jury that it could convict the defendants if some of the jurors found that the defendants conspired to violate subsection (a) of the RICO Act while others found that they conspired to violate subsection (b). Rather here, in stark contrast to Gipson, the trial court concluded its instructions by directing that “[w]hatever your verdict is, it must be unanimous; that means agreed by all.”

Moreover, recognizing that Gipson in essence concerned verdict specificity and unanimity problems in situations involving alternative theories of actus rea under a criminal statute, the Supreme Court of the United States in Schad v. Arizona, found the Fifth Circuit’s approach wanting, specifically noting,

[w]e are not persuaded that the Gipson approach really answers the question, however. Although the classification of alternatives into “distinct conceptual groupings” is a way to express a judgment about the limits of permissible alternatives, the notion is too indeterminate to provide concrete guidance to courts faced with verdict specificity questions.

Following on the heels of Schad, the Supreme Court of the United States reiterated in Griffin v. United States, that “a general jury verdict was valid so long as it was legally supportable on one of the submitted grounds — even though that gave no assurance that a valid ground, rather than an invalid one, was actually the basis for the jury’s action.” Given the foregoing and the particular circumstances presented in the case sub judice, Cotman’s additional contention that the trial court’s instruction as to Count 1 constituted error because it allowed the jury to render a non-unanimous verdict is without merit.

2. Cotman and Williamson also contend that the trial court erred in failing to find that the challenged jury instruction resulted in a fatal variance between the indictment and the evidence proven at trial. Again, we disagree.

We first note that the Supreme Court of Georgia has held that

[o]ur courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance fatal.

Here, in Count 1 of the indictment, the State charged all of the defendants in considerable detail, as previously discussed, with violating OCGA § 16-14-4 (c) of the RICO Act by conspiring and endeavoring to engage in racketeering in violation of OCGA § 16-14-4 (a) and by conspiring and endeavoring to engage in racketeering in violation of OCGA § 16-14-4 (b). But in their appellate briefs, Cotman and Williamson do not argue that these allegations failed to inform them of the charges, took them by surprise, or failed to protect them against an additional prosecution for the same offense. Rather, the defendants argue — similarly to their first claim of error — that a fatal variance resulted when the indictment charged a violation of OCGA § 16-14-4 (c) in two ways conjunctively, but the court instructed the jury that the State could prove a violation in either of the ways charged disjunctively But we reiterate that “[when] a person is charged in an indictment with a crime in two ways by using the conjunctive ‘and’ but [when] the statute contains ‘or,’ if it is proven that the defendant violated the statute in either way he may be convicted.” And in such circumstances, there is “no fatal variance between the court’s charge and the indictment.”

Furthermore, although even the most generous reading of the defendants’ briefs gleans no contention on their part that a fatal variance occurred because the State failed to sufficiently prove that the defendants violated OCGA § 16-14-4 (c) in either of the ways alleged in the indictment, the record, nevertheless, demonstrates that the State presented sufficient evidence that Cotman and Williamson conspired to violate OCGA § 16-14-4 (a) and (b).

A person participates in a “[p]attern of racketeering activity” when he or she engages

in at least two acts of racketeering activity in furtherance of one or more incidents, schemes, or transactions that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents.

Additionally, under the statute, the term “ ‘[Racketeering activity’ means to commit” a number of crimes chargeable by indictment under the laws of Georgia, as set forth in OCGA § 16-14-3 (9) (A) (i)-(xl), including the crimes of theft and those relating to perjury and other falsifications. And under Georgia law, a person may be found guilty of a RICO conspiracy “if they knowingly and willfully join a conspiracy which itself contains a common plan or purpose to commit two or more predicate acts.”

Here, as recounted in detail supra, the evidence showed that APS administrators and teachers, including Dr. Hall, Cotman, and Williamson, received bonuses and increases in their salaries if Targets and AYP were met and that those goals were often met as a direct result of cheating on the CRCT. The evidence also showed that, on several occasions, Cotman was informed regarding instances of cheating but took no action to investigate such and, in fact, punished those who reported cheating with demotions or terminations of employment. In addition, the evidence showed that Williamson cheated on the CRCT, a State document, by improperly providing students with correct answers and by changing wrong answers to correct ones on tests that had been completed. The evidence further showed that Williamson lied to law enforcement when confronted with claims that she cheated. Thus, the evidence was sufficient to support the defendants’ convictions, and any fatal variance claim in this regard lacks merit.

3. Cotman and Williamson further contend that the trial court erred in sentencing them under the RICO Act rather than the general conspiracy statute, arguing that sentencing them under the former violated the rule of lenity. Yet again, we disagree.

As discussed at length, supra, Cotman and Williamson were charged and convicted of conspiracy to violate the RICO Act under OCGA § 16-14-4 (c). And OCGA § 16-14-5 (a), the sentencing section of the RICO Act, provides that “[a]ny person convicted of the offense of engaging in activity in violation of Code Section 16-14-4 shall be guilty of a felony and shall be punished by not less than five nor more than 20 years’ imprisonment or the fine specified in subsection (b) of this Code section, or both.”

In this matter, after conducting a hearing, the trial court sentenced Cotman to twenty years, with seven years to serve in incarceration, and sentenced Williamson to five years, with two years to serve in incarceration. And although these sentences were within the range provided in OCGA § 16-14-5 (a), the defendants argue that they should have been sentenced under the general conspiracy statute, which provides:

... A person convicted of the offense of criminal conspiracy to commit a felony shall be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which he could have been sentenced if he had been convicted of the crime conspired to have been committed, by one-half the maximum fine to which he could have been subjected if he had been convicted of such crime, or both. . . .

Specifically, they argue that because the general conspiracy statute requires a trial court to impose a sentence that is not more than one-half the maximum period of time for which defendants could have been sentenced if they had been convicted of the crime conspired to have been committed, sentencing them under the RICO Act violated the rule of lenity.

As we have previously explained, the rule of lenity “ensures that if and when an ambiguity exists in one or more statutes, such that the law exacts varying degrees of punishment for the same offense, the ambiguity will be resolved in favor of a defendant, who will then receive the lesser punishment.” But the rule of lenity comes into play only to “resolve ambiguities that remain after applying all other tools of statutory construction.” Importantly, when “there is a specific and a general criminal statute, the rule of lenity is not implicated, and a specific statute will prevail over a general statute, absent any indication of a contrary legislative [directive].” And here, the clear language of OCGA § 16-14-5 (a) demonstrates that it is a specific law criminalizing a violation of any part of OCGA § 16-14-4. Consequently, the trial court did not err in sentencing Cotman and Williamson under the specific provisions of OCGA § 16-14-5 (a).

4. Finally, Cotman contends that the trial court erred in denying her plea in bar of double jeopardy. Once again, we disagree.

As discussed supra, in Count 4 of the original indictment, the State charged Cotman with the offense of influencing a witness, specifically alleging that she “did knowingly intimidate [principal] Jimmye Hawkins.” Cotman filed a special demurrer, which prompted the State to re-indict her solely on the same charge of influencing Hawkins but with additional details specifying the nature of the intimidation. The State then filed a motion requesting that the trial court enter an order of nolle prosequi as to Count 4 in the original indictment and join the new indictment with the original for trial purposes. But Cotman objected to joinder, demanded a speedy trial on the new indictment, and, at the conclusion of that trial, was acquitted.

Cotman then filed a plea in bar of former jeopardy, arguing that the State was precluded from trying her on either the RICO or influencing-a-witness charges in the original indictment. Subsequently, the trial court granted Cotman’s plea in bar as to the influencing-a-witness charge but denied it as to the RICO charge. On appeal, we affirmed the trial court’s ruling, concluding “that Cotman, having opposed the State’s invitation to join the two indictments for a single trial, faces subsequent prosecution because of her own election and thereby waived the protections against subsequent prosecutions afforded by OCGA § 16-1-8 (b).” But in that same opinion, we also noted that “Cotman [did] not argue substantive double jeopardy for purposes of the appeal.” Thus, in this appeal, Cotman now contends that the trial court erred in denying her plea in bar because the subsequent prosecution on the RICO charge was barred by substantive double jeopardy.

It is well established that the prohibition against double jeopardy in both the United States Constitution and the Georgia Constitution protects our citizens from, inter aha, being prosecuted a second time for the same offense after an acquittal or conviction. More specifically, double jeopardy protects against three types of abuses: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” And the standard of review of a “grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” Bearing these guiding principles in mind, we turn now to Cotman’s specific claim.

The well established test for determining whether two offenses are sufficiently distinguishable to avoid the prohibition against double jeopardy and, thereby, permit the imposition of cumulative punishment, was delineated in Blockburger v. United States, in which the Supreme Court of the United States held: “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Furthermore, the Supreme Court of the United States has also “recognized that the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial.” Accordingly, “if each statute requires proof of an additional fact which the other does not, the offenses are not the same under the Blockburger test.”

As previously noted, in her earlier trial, Cotman was acquitted on the charge of influencing a witness under OCGA § 16-10-93 (b) (1) (C), which provides:

It shall be unlawful for any person knowingly to use intimidation, physical force, or threats; to persuade another person by means of corruption or to attempt to do so; or to engage in misleading conduct toward another person with intent to ... [hjinder, delay, or prevent the communication to a law enforcement officer, prosecuting attorney, or judge of this state of information relating to the commission or possible commission of a criminal offense or a violation of conditions of probation, parole, or release pending judicial proceedings.

But racketeering is “a special type of compound offense, not simply a more serious grade of forgery, robbery, homicide, or any of the other offenses specified in the Act as predicate offenses.” And although influencing a witness can be a predicate offense supporting a RICO charge, it is certainly not a necessary element of such a charge. More importantly, it was not a predicate offense in Cotman’s RICO trial. In fact, the amended indictment did not allege that Cotman engaged in influencing a witness, either as a predicate act of the RICO charge or as a separate charge, and the State presented no evidence during the trial pertaining to the charge for which Cotman was acquitted in her first trial—i.e., her alleged attempt to intimidate Principal Hawkins from speaking with the GBI. Furthermore, while Cotman is correct that many of the same witnesses who testified during her first trial also testified during her RICO trial, none of those witnesses testified regarding the specific meeting with Principal Hawkins that resulted in the influencing-a-witness charge. Regardless, Cotman’s focus on such witness overlap in the two trials is misplaced given, as discussed supra, that “the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial.” Accordingly, Cotman’s prosecution on the RICO charge after she was acquitted on the influencing-a-witness charge was not barred by substantive double jeopardy.

Decided August 11, 2017

Benjamin A. Davis, Jr., for appellant (case no. A17A1050).

Gerald A. Griggs, for appellant (case no. A17A1051).

Paul L. Howard, Jr., District Attorney, Linda J. Dunikoski, Assistant District Attorney, for appellee.

For all these reasons, we affirm Cotman and Williamson’s convictions in both Case No. A17A1050 and Case No. A17A1051.

Judgments affirmed.

Ray, P. J., and Self, J., concur.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

       Psychometrics is a field of study concerned primarily with developing and evaluating the effectiveness of educational testing.

        Cotman v. State, 328 Ga. App. 822, 826 (1) (762 SE2d 824) (2014).

       By the time the trial commenced, Dr. Hall was gravely ill and, therefore, was not tried with the aforementioned defendants.

        Palencia-Barron v. State, 318 Ga. App. 301, 306 (3) (733 SE2d 824) (2012) (punctuation omitted); accord Cash v. State, 297 Ga. 859, 863 (2) (778 SE2d 785) (2015).

        Braley v. State, 276 Ga. 47, 53 (31) (572 SE2d 583) (2002); accord Wheeler v. State, 327 Ga. App. 313, 318 (3) (758 SE2d 840) (2014); see Holman v. State, 329 Ga. App. 393, 401 (2) (b) (ii) (765 SE2d 614)(2014) (holding that the instructions from the trial court must “sufficiently limit the jury’s consideration to the allegations and elements of the offense as charged in the indictment” (punctuation omitted)).

        Wheeler, 327 Ga. App. at 318 (3) (punctuation omitted); see Hartzler v. State, 332 Ga. App. 674, 680 (3) (774 SE2d 738) (2015) (noting that appellate review of a jury charge is de novo).

       In 2015, the RICO Act was amended in several minor respects, but those amendments did not become effective until July 1, 2015, and have no bearing on these appeals. See Ga. L. 2015, Act 98, p. 730 § 2-25.

        Cash, 297 Ga. at 862 (2) (punctuation omitted); see also Young v. State, 226 Ga. 553, 554 (1) (176 SE2d 52) (1970) (“As a general rule, where a statute specifies several means or ways in which an offense may be committed in the alternative, it is bad pleading to allege such means or ways in the alternative; the proper way is to connect the various allegations in the accusing pleading with the conjunctive term ‘and’ and not with the word ‘or.’ ” (punctuation omitted)).

        Cash, 297 Ga. at 862 (2) (punctuation omitted); accord Graham v. State, 337 Ga. App. 193, 197-98 (2) (786 SE2d 857) (2016); Gipson v. State, 332 Ga. App. 309, 317 (5) (772 SE2d 402) (2015).

        See Cash, 297 Ga. at 862-63 (2) (holding that when a criminal statute contains disjunctive ways a crime can be committed, the State can show it was committed in any one of the ways listed in the indictment even if the indictment uses conjunctive language); Graham, 337 Ga. App. at 196-97 (2) (holding that trial court did not err by instructing the jury that the State did not have to prove all of the acts listed in each count of the indictment because “[i]f a crime may be committed in more than one way, it is sufficient for the State to show that it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form” (punctuation omitted)); Gipson, 332 Ga. App. at 317-18 (5) (holding that court’s charge was not error because the State may show that a crime was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form and because the court further instructed that the burden was on the State to prove every material allegation of the indictment and every material element of the crime charged beyond a reasonable doubt).

       553 F2d 453 (5th Cir. 1977).

        See Graham, 337 Ga. App. at 197 (2) (noting that because the defendant failed to lodge any specific objection to the jury instruction he now challenges, we review the instruction to determine whether it constitutes plain error which affects substantial rights of the parties under OCGA § 17-8-58 (b)).

        See Jones v. State, 279 Ga. 854, 860 (7) (a) (622 SE2d 1) (2005) (holding that because defendant did not raise any objection to the form of the verdict below, he waived any right to assert error in that regard on appeal).

        See Green v. State, 339 Ga. App. 263, 271 (3) (793 SE2d 156) (2016) (declining to consider argument made for first time in reply brief that was beyond scope of enumerated error).

        Gipson, 553 F2d at 455 (I).

        Id.

        Id.

         Id. at 455-56 (I) (punctuation omitted).

        Id. at 456 (I).

        Id. at 455 (I).

        Id. at 458-59 (II).

        Id. at 459 (II).

        See supra note 19 and accompanying text.

       501 U. S. 624 (111 SCt 2491, 115 LE2d 555) (1991).

        Id. at 635 (II) (A).

       502 U. S. 46 (112 SCt 466, 116 LE2d 371) (1991) (Scalia, J.).

        Id. at 49 (II); accord Jones v. State, 301 Ga. 94, 97 (1) (799 SE2d 749) (2017).

        Delacruz v. State, 280 Ga. 392, 396 (3) (627 SE2d 579) (2006) (punctuation omitted); accord Jarrett v. State, 299 Ga. App. 525, 529 (4) (683 SE2d 116) (2009).

        Jarrett, 299 Ga. App. at 530 (6) (punctuation omitted); see Stone v. State, 229 Ga. App. 367, 370 (1) (b) (494 SE2d 48) (1997) (noting that if a crime maybe committed in more than one way, it is sufficient for the State to show that it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form).

        Jarrett, 299 Ga.App. at 530 (6); see Thomas v. State, 192 Ga. App. 427, 427-28 (385 SE2d 310) (1989) (holding that variation between indictment, which charged defendant with receiving “and” retaining stolen property, and receiving stolen property statute that trial court read to jury, which defined offense as receipt, disposition “or” retention of such property, was not error).

        See former OCGA § 16-14-3 (8) (A) (2011).

        See former OCGA § 16-14-3 (9) (A) (ix), (xv) (2011).

        Rosen v. Protective Life Ins. Co., 817 FSupp.2d 1357, 1382 (II) (G) (N.D. Ga. 2011) (applying the Georgia RICO Act); accord Wylie v. Denton, 323 Ga. App. 161, 165 (1) (746 SE2d 689) (2013) (physical precedent only).

        See Dorsey v. State, 279 Ga. 534, 540 (2) (b) (615 SE2d 512) (2005) (holding that evidence was sufficient to establish that defendant, as county sheriff, acquired property and money through a pattern of racketeering, thus supporting his conviction under the RICO Act); Brown v. State, 321 Ga. App. 198, 204 (4) (739 SE2d 118) (2013) (holding that the evidence that defendant conspired with other employees to falsify overtime records in exchange for payment was sufficient to support defendant’s RICO conviction); Martin v. State, 189 Ga. App. 483, 489-90 (5) (376 SE2d 888) (1988) (finding that evidence was sufficient to show that three attorneys were part of RICO enterprise which engaged in ticket-fixing of alcohol-related charges by removing files relating to charges from county solicitor’s office); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       OCGA § 16-4-8.

        See id.

        Gordon v. State, 334 Ga. App. 633, 634 (780 SE2d 376) (2015) (punctuation omitted); see McNair v. State, 293 Ga. 282, 283 (745 SE2d 646) (2013) (noting that the rule of lenity provides that statutory ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment); Issa v. State, 340 Ga. App. 327, 341 (7) (796 SE2d 725) (2017) (same); Mathis v. State, 336 Ga. App. 257, 260 (784 SE2d 98) (2016) (same).

        State v. Nankervis, 295 Ga. 406, 409 (2) (761 SE2d 1) (2014) (punctuation omitted); see Woods v. State, 279 Ga. 28, 31 (3) (608 SE2d 631) (2005) (holdingthat when a crime is penalized by a special law, the general provisions of the penal code are not applicable); McWhorter v. State, 275 Ga. App. 624, 629 (2) (621 SE2d 571) (2005) (same).

        Nankervis, 295 Ga. at 409 (2) (punctuation omitted); see Woods, 279 Ga. at 31 (3) (holding that when “a crime is penalized by a special law, the general provisions of the penal code are not applicable” (punctuation omitted)).

        See OCGA § 16-14-5 (a).

        See Nankervis, 295 Ga. at 409-10 (2) (holding that the rule of lenity did not apply in prosecution for methamphetamine trafficking and, thus, trial court was precluded from sentencing defendant for manufacturing a controlled substance given that methamphetamine trafficking statute was more specific than general statutory provisions for manufacturing controlled substances); Woods, 279 Ga. at 30-31 (3) (holding that trial court did not err in sentencing defendant under OCGA § 16-13-33, rather than the general “attempt” statute (OCGA § 16-4-6), because “the two sentencing statutes are mutually exclusive and there is no uncertainty as to which applies—OCGA § 16-13-33 renders OCGA § 16-4-6 inapplicable in prosecutions under the Georgia Controlled Substances Act.”); McWhorter, 275 Ga. App. at 629-30 (2) (finding that general statute limiting sentence for conspiracy to one-half maximum sentence for substantive crime did not apply when imposing sentence for offense of conspiracy to manufacture methamphetamine because Controlled Substances Act specifically allowed imposition of maximum sentence for substantive crime when imposing sentence for conspiracy to commit crime).

        Cotman, 328 Ga. App. at 826 (1).

        Id. at 825 (1) n.5.

         See U.S. Const. amend. V (“... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb. .. .”); see also Brown v. Ohio, 432 U. S. 161, 165 (II) (97 SCt 2221, 53 LE2d 187) (1977) (“Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” (citation omitted)).

        See Ga. Const. Art. 1, § 1, ¶ XVIII (“No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of a mistrial.”).

        See Phillips v. State, 298 Ga. App. 520, 521 (1) (680 SE2d 424) (2009) (“The prohibition against double jeopardy in both the United States and Georgia Constitutions, among other things, protects against a second prosecution for the same offense after acquittal or conviction.”).

        Garrett v. State, 306 Ga. App. 429, 430 (702 SE2d 470) (2010) (punctuation omitted), citing North Carolina v. Pearce, 395 U. S. 711, 717 (I) (89 SCt 2072, 23 LE2d 656) (1969).

        Johns v. State, 319 Ga. App. 718, 719 (738 SE2d 304) (2013) (punctuation omitted).

       284 U. S. 299 (52 SCt 180, 76 LE 306) (1932).

        Id. at 304; accord Garrett, 306 Ga. App. at 430. This constitutional test is also codified under OCGA § 16-1-8 (b). See McCannon v. State, 252 Ga. 515, 518-19 (315 SE2d 413) (1984). Moreover, the Supreme Court of Georgia specifically adopted the “required evidence” test under
        Blockburger for determining when one crime is “included in” another under OCGA §§ 16-1-6 and 16-1-7 (a) (1). Drinkard v. Walker, 281 Ga. 211, 216 (636 SE2d 530) (2006).

        Garrett, 306 Ga.App. at 431 (punctuation omitted), quoting Illinois v. Vitale, 447 U. S. 410, 416 (II) (100 SCt 2260, 65 LE2d 228) (1980).

        Garrett, 306 Ga.App. at 431 (punctuation omitted); see also Ledford v. State, 289 Ga. 70, 71 (1) (709 SE2d 239) (2011) (applying “required evidence” test for determining whether one offense is included in another).

        Redford v. State, 309 Ga. App. 118, 122 (710 SE2d 197) (2011).

        See former OCGA § 16-14-3 (9) (A) (xiv) (2011).

        See supra note 51 and accompanying text (emphasis supplied).

        See Stepp v. State, 286 Ga. 556, 558-59 (690 SE2d 161) (2010) (holding that defendant’s conviction in recorder’s court for violation of county ordinance regulating her responsibilities as pet owner did not bar, on double jeopardy grounds, subsequent prosecution in state court for misdemeanor reckless conduct, as violation of county ordinance required proof of ownership of animal, whereas reckless conduct statute did not, and violation of reckless conduct statute required proof of actual bodily harm being caused, which ordinance did not); Southwell v. State, 320 Ga. App. 763, 763-65 (1) (740 SE2d 725) (2013) (holding that defendant’s separate convictions for robbery by intimidation and felony theft by taking did not violate prohibition against double jeopardy because robbery by intimidation was based on defendant’s act of threatening victim with knife to obtain money, while theft was based on stealing victim’s car and did not require proof that taking was by intimidation).