Bell v. State

362 Ga.App. 631

869 S.E.2d 576

BELL

v.The STATE.

A21A1708

Court of Appeals of Georgia.

February 11, 2022

The Snyder Adams Law Firm, Jennifer Snyder Adams, for Appellant.

Flynn D. Broady, Jr., District Attorney, Samuel R. d'Entremont, Assistant District Attorney, for Appellee.

Brown, Judge.

Julia Bell appeals from her convictions of four counts of elder exploitation.¹ She contends that insufficient evidence supports Count 7 of the indictment and that her trial counsel provided ineffective assistance by: (a) failing to object to and eliciting testimony regarding missing items (jewelry and medical equipment) not included in the indictment, (b) failing to object to a lay witness providing opinion testimony about the genuineness of handwriting, and (c) failing to challenge the competency of the victim to testify. For the reasons explained below, we affirm.

In reviewing 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.

(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the record shows that Bell worked as a live-in caretaker for the victim, a woman in her late seventies who had suffered a stroke resulting in loss of movement on her right side and speech difficulty. The victim's son testified that she sometimes had difficulty "getting the right word to come out" and that while he had noticed "some issues" with her short-term memory, she was able to "form some" and her memory loss was not a daily issue. After her stroke, the victim continued to play bridge three times a week and win.

The owner of the care-giving company that employed Bell testified that his employees were forbidden to provide care to a client "on the side" without permission from the owner, accept gifts over $50 or of a client's personal possessions, or obtain credit cards in their name attached to the account of a client. Bell never requested permission to obtain a credit card in her name on the victim's account. Employees, including Bell, were to be paid by the care-giving company, not the client.

When Bell first worked with the victim starting in October 2016, the victim's son paid the victim's bills through access to her accounts. In August 2017, the victim told her son that she would take over paying her bills. When Bell became the victim's caretaker, the victim's spending "went dramatically up." There were also "more" bills when her son no longer paid the bills. At the end of 2017, the victim's son learned that "Bell had charged several things to the credit card and also had gotten a credit card in her name." After taking control of the bills again, he discovered more questionable activity, and his sister contacted the police.

An investigator with the district attorney's office testified that she obtained the bank account records of Bell and the victim and examined them for connected, suspicious transactions. Based on an interview with the victim, the investigator identified numerous transactions in the victim's bank and credit card accounts at locations where the victim did not shop or for services that she did not use.

With regard to a Target check forming the basis for Count 7 of the indictment, the State presented evidence showing that the check was deposited into Bell's account on July 3, and that no cash withdrawal from Bell's account in the same amount took place between that date and July 20. Bell testified at trial that she tried to cash the check on the victim's behalf at the victim's bank, but the bank would not let her do so in the absence of the victim. She stated that she then took the check to her bank "and deposited it and gave [the victim] cash." While she initially testified that the victim endorsed the back of the check, she later gave less certain testimony, saying that she did not "think" she had signed the check on the victim's behalf.

The State subsequently charged Bell with seven counts of elder exploitation. The jury found her guilty of four counts (Counts 4-7). Three of these counts (Counts 4-6) included over 170 purchases totaling $18,750.62 on the victim's credit cards that were made for Bell's "profit and advantage." Examples of individual credit charges included: $235.60 at a jewelry store; $1,644.16 at an automobile body shop; and cash advances ranging from $200 to $600. The fourth count (Count 7) alleges that Bell exploited the victim by taking the Target check made payable to the victim in the amount of $328.86, forging the victim's signature on the back, and then depositing the check into Bell's bank account.

1. Bell contends that insufficient evidence supports her conviction of Count 7 of the indictment because the State failed to prove she forged the victim's signature on the check as alleged in the indictment. We disagree.

In Georgia, "[a]ny person who knowingly and willfully exploits a[n] ... elder person ... shall be guilty of a felony[.]" OCGA § 16-5-102 (a). " ‘Exploit’ means illegally or improperly using a disabled adult or elder person or that person's resources through undue influence, coercion, harassment, duress, deception, false representation, false pretense, abuse of access, or other similar means for one's own or another person's profit or advantage." OCGA § 16-5-100 (6). While Bell frames her enumeration of error in terms of the sufficiency of the evidence, in substance, it is an argument that there was a fatal variance between the indictment and the proof at trial. See Martinez v. State , 325 Ga. App. 267, 269 (1) (a), 750 S.E.2d 504 (2013) (noting "if the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance") (citation and punctuation omitted). Fatal variance arguments must be raised and ruled upon by the trial court in order to be considered on appeal. See Brown v. State , 320 Ga. App. 12, 13, n.4, 739 S.E.2d 32 (2013). As Bell failed to do so in this case, the fatal variance issue is waived. See Eberhart v. State , 307 Ga. 254, 262 (2) (a), n.7, 835 S.E.2d 192 (2019) ; Hanson v. State , 305 Ga. App. 900, 902 (2), 700 S.E.2d 896 (2010).

To the extent her brief asserts that the evidence presented by the State fails to sufficiently prove elder exploitation, we find that the State met its burden under the standard set forth in Jackson , 443 U. S. at 319 (III) (B), 99 S.Ct. 2781. A rational trier of fact could have concluded from the evidence presented by the State that Bell knowingly and wilfully exploited the victim in connection with the Target check, particularly in light of the evidence that Bell deposited the check into her own bank account and did not make a cash withdrawal, even though she testified she gave cash to the victim.

2. Bell asserts that she received ineffective assistance of trial counsel.

To prevail on a claim of ineffective assistance of counsel, [Bell] must show that trial counsel's performance was so deficient that it fell below an objective standard of reasonableness, and that counsel's deficient performance prejudiced the defense such that a reasonable probability exists that the trial results would have been different but for counsel's performance. Strickland v. Washington , 466 U. S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Bragg v. State , 295 Ga. 676, 678 (4), 763 S.E.2d 476 (2014). "Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them." (Citation and punctuation omitted.) Brown v. State , 321 Ga. App. 765, 767 (1), 743 S.E.2d 452 (2013).

(a) Bell asserts that trial co...