How Other Acts Evidence Can Benefit a Criminal Defendant

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The State often uses “other acts” evidence to introduce other bad things that a defendant has done to a jury. While the State cannot bring this evidence in to show that the defendant has a bad character, they can bring the evidence in if they can convince a judge that they are doing so to prove something like motive, intent, knowledge, identity, plan, or purpose. These exceptions are all part of the Georgia Rules of Evidence and can be found in O.C.G.A § 24-4-404(b) (often referred to as 404(b) evidence).

But the defense can use these powerful exceptions to their advantage to introduce other bad acts of an alleged victim to the jury (often call reverse 404(b) evidence). Here is an example of how reverse 404(b) evidence could be used to your advantage:

Imagine that you are working in your garage and see a teenager approach your elderly neighbor’s front door. You see the teenager peering in windows and you feel that the teenager is going to harm your elderly neighbor. You approach the teenager, with your firearm by your side, and ask them to leave the property. The teenager reports your behavior to the police and you suddenly find yourself facing criminal charges.

Luckily, you have hired one of the lawyers at W. Scott Smith who begins thoroughly investigating your case and discovers that only two weeks after the incident at your neighbor’s, the teenager is arrested for breaking into another house nearby. By utilizing Rule 404(b) your lawyer is able to introduce this other robbery evidence to a jury to show that the teenager intended to rob your neighbor and that you were justified in approaching the teenager with your firearm.

If you are charged with a serious crime like murder or aggravated assault, it is important that you hire an experienced lawyer who will thoroughly investigate your case and fight to admit any evidence that helps to prove your innocence. If you are charged in Gwinnett, Cobb, Fulton, Dekalb, Clayton, or Newton County, and believe that there is evidence that should be admitted about an alleged victim, call our office at 404-581-0999 today for a free consultation.

Keeping Evidence of Bad Character Out of Your Trial

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It is not uncommon in criminal cases for the state to attempt to introduce evidence of other bad things defendants have done. The Georgia Rules of Evidence are very clear that this evidence can not be admitted for propensity purposes. That means the state can’t introduce bad character evidence just to try to make the jury believe that because a defendant acted a certain way in the past that they acted in the same way during the commission of whatever crime they are charged with. For example, if you are charged with armed robbery, the state cannot admit evidence that you were involved in another armed robbery just to say “because he armed robbed someone in the past, he armed robbed someone this time”. But the state will also often try to use the Rules of Evidence to get around this ban on bad character evidence. If the state can convince a judge that they are attempting to bring in the evidence as proof of intent, motive, knowledge, identity, plan, or purpose, they will be allowed to present the evidence.

Additionally, the evidence the state is attempting to introduce should be kept out if any probative value (i.e., usefulness) is substantially outweighed by prejudice to the defendant. It is important to hire an attorney who will zealously fight to keep any bad character evidence out of your trial. At the Law Offices of W. Scott Smith, we fight to protect our clients and will work tirelessly to prevent the state from being able to introduce this bad character evidence to the jury. If you have been charged with a serious crime like murder, rape, armed robbery, or aggravated assault in Fulton, Cobb, Dekalb, Gwinnett, Clayton, or Rockdale Counties, call our office at 404-581-0999 for a free consultation.

How do I get out of the Fulton County Jail?

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You are in handcuffs and headed to the Fulton County Jail. You want to get out as soon as possible. Your loved ones are in a panic to find a lawyer to help get a bond set. What do you do?

First, do not make any statements to the police while you are being transported to the Fulton County Jail.

Second, do not make any statements about the facts of your case to anyone at the Fulton County Jail. This is not the time to plead your innocence. Your sole focus should be on getting out on bond.

If you are arrested on a misdemeanor, you will go in front of a Magistrate Judge the following morning at 9am.

If you are arrested on a felony, you will go in front of a Magistrate Judge the following morning at 11am.

Your loved ones should plan on going to the Fulton County jail about 30 minutes prior to court starting. Although most of the first appearance hearings will be conducted by zoom.

The Fulton County jail is located at 901 Rice Street, Atlanta, Georgia 30318.

The Fulton County Judge is required to consider four factors when setting a bond.

  1. Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;
  2. Poses no significant threat or danger to any person, to the community, or to any property in the community;
  3. Poses no significant risk of committing any felony pending trial;
  4. Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

Some crimes must go before a Superior Court judge in order to have a bond set. If you are charged with any of these specific crimes in Fulton County then the Magistrate Judge cannot set a bond at your initial court appearance. All that will happen at this appearance, is the judge will read the warrants to you and reset your case.

The crimes that are only bondable by a Superior Court judge are as follows:

  1. Treason
  2. Murder
  3. Rape
  4. Aggravated Sodomy
  5. Armed Robbery
  6. Aircraft hijacking and hijacking a motor vehicle
  7. Aggravated Child Molestation
  8. Aggravated Sexual Battery
  9. Manufacturing, distributing, delivering, dispensing, administering, or selling any controlled substance classified under Code Section 16-13-25 as Schedule 1 or under Code Section 16-13-26 as Schedule II
  10. Violating Code Section 16-13-31 or 16-13-31.1
  11. Kidnapping, arson, aggravated assault, or burglary if the person, at the time of the alleged kidnapping, arson, aggravated assault, or burglary, had been previously convicted of, was on probation or parole with respect to, or was on bail for kidnapping, arson, aggravated assault, burglary, or one or more of the offenses listed above.
  12. Aggravated Stalking

For any of these crimes that are bondable only by a Fulton County Superior Court judge, you will get a court date that will be in the Fulton County Courthouse. The Fulton County Courthouse is located at 185 Central Avenue, Atlanta, Georgia 30303. These court dates start at 9:30am. As of now, most of these hearings are held on zoom.

There are several types of bonds available for your case.

  1. Released to Pretrial Services: Fulton County will sometimes release people on their own recognizance which means that you do not have to put up any money. You will be monitored by Fulton County Pretrial Services. You will have to report to Pretrial Services until your case gets resolved in court.
  2. Cash Bond: Another option in Fulton County is to pay a cash bond. This means that you pay the entire bond yourself. The benefit to this bond is that it is refundable to you once you resolve your case.
  3. Property Bond: Another option in Fulton County is to post a property bond. In order to post a property bond, you would need to speak to the Fulton Sheriff’s office. They generally will require a warranty deed, a current tax statement showing the property’s fair market value as well as a statement showing all taxes are current. You generally need double the bond amount in equity.
  4. Bail Bondsman: The final option is to call a bonding company. You will pay between 10% – 15% of the total bond to the bonding company. The bonding company will then post the entire bond and you will be released. This 10% – 15% is non-refundable. The Fulton County jail will provide you with a list of approved bonding companies.

If you or your loved one is arrested and taken to the Fulton County jail, please contact us any time and we can assist you in helping get a bond set.

Our office is located in downtown Atlanta at 100 Peachtree Street, Suite 2060, Atlanta, Georgia 30303. Feel free to call us at 404-581-0999 anytime day or night. Also, please go to our website at www.peachstatelawyer.com

Loss Amount

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In previous discussions, I have discussed the United States Sentencing Guidelines (U.S.S.G.). Here, I will briefly address the guidelines as they apply to calculating loss for financial crimes under U.S.S.G. § 2B1.1.

It is critical to know that the federal sentencing guidelines calculate loss amount to include not only actual loss amount but intended loss amount. An example will help …

A Defendant obtains 20 forged checks drawn on the accounts of “Victims”. Each forged check is for $10,000. The Defendant passes all 20 checks at different banks. On ten occasions, Defendant is successful resulting in acquiring $100,000 via fraud. On ten occasions, the bank declines to cash the checks resulting in $100,000 in unsuccessful attempts.

Using this example, the actual loss is $100,000, the intended loss amount is $200,000. For sentencing guidelines purposes, $200,000 is the loss amount.

There are ways to mitigate this loss amount, particularly where it brings an unjust result.

For further reading you may consider:

United States Sentencing Guideline §2B1.1.

“What Does Federal Economic Crime Really Look Like?” published by the United States Sentencing Commission in January 2019.

 

Written By: Attorney John Lovell

Forgery Arrests and Charges in Georgia

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In Georgia, the offense of forgery is broken down into four different degrees, depending on the type of document forged and whether that document was delivered, presented, or used. Third and fourth degree forgery deal solely with checks, while first and second degree forgery are associated with all other documents.

According to O.C.G.A. § 16-9-1, a person commits the offense of forgery in the first degree when the accused has acted with the intent to defraud and he/she knowingly possesses any writing, other than a check, in a fictitious name or where the writing has been altered. Such writing by the accused must be without the authority of the authorized owner of the document.

Furthermore, to be convicted of first degree forgery, the fraudulent document must have been delivered, used, or presented. Alternatively, second degree forgery still requires that the accused had the intent to defraud the authorized owner of the document in the same way as first degree forgery, however, one key difference between the two is that to be convicted of second degree forgery, the fraudulent document must not have been delivered, used, or presented.

Lastly, third and fourth degree forgery deal solely with checks. A person commits the offense of forgery in the third degree when one of the following occurs:

  • The accused alters or defrauds the authorized owner of a check in the amount of $1,500 or more; OR
  • He/she possesses 10 or more checks written, without a specified amount, in a fictitious name or in some other way in which alters the check with the intent to defraud.

Fourth degree forgery is the same as the offense of forgery in the third degree except that the check amount is either less than $1,500 or he/she possesses less than 10 checks written in a fictitious name or in some other way alters the check to defraud the authorized owner.

PENALTIES

Forgery is characterized as either a felony or a misdemeanor, depending on what degree the State of Georgia charged the offense as. First, second, and third degree forgery are all felonies, while fourth degree forgery is classified as a misdemeanor.

An accused convicted of first degree forgery could be sentenced anywhere between 1-15 years in prison. Alternatively, for a conviction of second degree forgery, the punishment ranges between 1-5 years in prison. The same is also true for third degree forgery. Lastly, a conviction of forgery in the fourth degree shall be classified as a misdemeanor and the accused, if convicted, could be sentenced anywhere between 1-5 years in jail.

Due to the severity of the punishment for forgery convictions, it is of vital importance to hire an experienced criminal defense attorney to defend you against such allegations. At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for each degree of forgery, as well as all possible options for an accused dealing with such a serious charge.  Therefore, if you or a loved one has been arrested for forgery, please call our office today at 404-581-0999 for a free consultation.

Financial Transaction Card Forgery Devices

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Possession of financial transaction card forgery devices in Georgia is different than possession of the cards themselves. In Georgia it is illegal to possess any devices used to fraudulently make financial transaction cards of a bank or other financial institution. All that is required to be found guilty of possession of these devices is a knowledge of what they are and actual or constructive possession of the devices themselves.

More On the Law

It is also illegal to possess a financial transaction card that has not been completed. That card could be missing the name, card number, expiration date, security code or other marking besides the signature that would identify it as a valid financial transaction card.

Consequences

A conviction for possession of financial transaction card forgery devices in Georgia is a felony punishable by at least one year incarceration.

If you are being investigated for or charged with financial transaction card crimes, you need to call our office today at 404-581-0999. Our offices of experiences financial transaction card forgery attorneys is here to answer your questions.

Creating Fake Checks

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Beyond the crimes of Deposit Account Fraud and Forgery in Georgia, it is also unlawful to create fake checks or other negotiable instruments that appear as they are the real checks of any financial institution.

What’s the Law on Fake Checks?

The statute, O.C.G.A. 16-9-21 reads:

It shall be unlawful for any person to print or cause to be printed checks, drafts, orders, or debit card sales drafts, drawn upon any financial institution or to execute or negotiate any check, draft, order, or debit card sales draft knowing that the account number, routing number, or other information printed on such check, draft, order, or debit card sales draft is in error, fictitious, or assigned to another account holder or financial institution.

Any person who is found to have broken the law as it relates to the above statute would be guilty of a felony with a prison sentence ranging from one to five years and a fine of up to $5,000.

What Should I Do?

If you are being investigated for creating fake or fraudulent checks in Georgia, call our office today for a free consultation. Our staff is experienced in defending these white-collar cases and can discuss potential defenses with you at your free consultation. Call us today at 404-581-0999.

by Ryan Walsh

False Proof of Insurance Documents

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Insurance Need to Knows

Every driver in Georgia is required to have the minimum liability coverage of $25,000 per person and $50,000 per accident before they can drive their vehicle on the road. An insurance policy covers a specific vehicle or set of vehicles and is acquired by paying a premium to a Georgia auto insurer. Insurance in Georgia is proven through a proof of insurance document issued on behalf of the insurer to a policyholder in order to prove the minimum liability coverage. 

False Proof of Insurance

It is a felony in Georgia to manufacture, sell or distribute a false proof of insurance document in Georgia and is punishable by a fine of up to $10,000 and/or two to ten years in custody. Just possessing a false proof of insurance document in Georgia is just a misdemeanor with a fine of up to $1,000 and/or a year in custody. 

What Does the Law Say?

The statute reads that “A proof of insurance document shall be deemed counterfeit or false if the proof of insurance document has been altered, modified, or originally issued in any manner which contains false information concerning the insurer, the owner, the motor vehicle, or the insurance thereon.”

If you’ve been arrested for a proof of insurance violation or any other fraud charge our office of experienced Georgia criminal defense attorneys can help. Call us today at 404-581-0999 for a free consultation. 

Financial Transaction Card Forgery

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In Georgia it is against the law to make a fake financial transaction card in the name of another person or to alter any credit or debit card’s encoded information.

What is Financial Transaction Card Forgery?

A person commits the offense of financial transaction card forgery when:

(1)  With intent to defraud a purported issuer; a person or organization providing money, goods, services, or anything else of value; or any other person, he falsely makes or falsely embosses a purported financial transaction card;

(2)  With intent to defraud a purported issuer; a person or organization providing money, goods, services, or anything else of value; or any other person, he falsely encodes, duplicates, or alters existing encoded information on a financial transaction card or utters such a financial transaction card; or

(3)  He, not being the cardholder or a person authorized by him, with intent to defraud the issuer; a person or organization providing money, goods, services, or anything else of value; or any other person, signs a financial transaction card.

Examples

Falsely making a financial transaction card in Georgia occurs when someone makes or draws a card that is in someone else’s name but is not their actual card because they did not authorize the making or drawing of the card which was issued by the credit or debit card company.

Falsely embossing a financial transaction card in Georgia occurs when someone adds a name, card number, expiration date or security code to a card that already exists.

Falsely encoding a financial transaction card in Georgia occurs when someone erases or alters, electronically, magnetically, or electromagnetically information on the card that will permit acceptance of that card by an ATM.

If you are found in Georgia with two falsely made, embossed, or encoded financial transaction cards it is evidence under the statute that a crime has been committed.

Sentencing

If you are found guilty of violating this statute, you will be convicted of a felony and sentenced one to three years in custody.

Please call us today for a free consultation regarding financial transaction card forgery in Georgia at 404-581-0999.

False Identification in Georgia

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A couple times a month we receive a call from someone who receives a letter from the Department of Driver Services stating they are being investigated for providing fraudulent information, false identification, on their drivers license. That crime and others are covered in Official Code of Georgia Annotated (O.C.G.A.) 16-9-4; Manufacturing, Selling, or Distributing False Identification Documents.

What exactly does this mean?

Under O.C.G.A. 16-9-4 it is unlawful for any person to knowingly possess, display, or use any false, fictitious, fraudulent, or altered identification document. It is also unlawful to make, alter, sell, distribute or deliver the identification document with intent to provide them for others. An identification document has to be issued by a government agency or by authority of the government and it must contain a name, and a description or photograph. Common identification documents include passports, VISAs, military IDs, driver’s licenses, or state issued ID cards. This also includes employer issues ID badges, if the badges contain a trademark or trade name and access cards that are unique to specific individuals.

What will happen?

Anyone found guilty of possessing an identification document for their own use would be guilty of a misdemeanor. If you’ve made, altered or sold identification documents for others, they you would be guilty of a felony. Also, if you’re found to use property to help you in violating this code section, you can be subject to civil forfeiture of the property used to aid in possessing, making, altering, or selling these identification documents.

 

If you’ve been charged or are worried you are going to be charged with an identification document violation in Georgia, call us today for a free consultation at 404-581-0999.

 

by Ryan Walsh