Kaitlin Poole v. State

                               FOURTH DIVISION
                                DILLARD, P. J.,
                            RICKMAN and PIPKIN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               https://www.gaappeals.us/rules



                                                                  December 19, 2023




In the Court of Appeals of Georgia
 A23A1318. POOLE v. THE STATE.

      DILLARD, Presiding Judge.

      Following a trial by jury, Kaitlin Poole was convicted of theft by taking, and

exploitation and intimidation of a disabled adult, elder person, or resident. She now

appeals from these convictions and the denial of her motion for new trial, arguing that

she is entitled to a new trial because two of those convictions are mutually exclusive.

We affirm.

      Viewed in the light most favorable to the jury’s guilty verdict,1 the record shows

that in early 2020, Poole’s father (the victim) was hospitalized due to COVID-19 and


      1
         See, e.g., Powell v. State, 

 (

) (2016)
(“Following a criminal conviction, we view the evidence in the light most favorable
to the jury’s verdict and no longer presume the defendant is innocent.”).
placed into a medically induced coma in the ICU after flat-lining and requiring

resuscitation. Upon being admitted to the hospital, Poole’s father had a gray lunch bag

with him containing his wallet, the keys to his truck and home, important documents,

and around $41,000 in cash. And during his hospital stay, the victim was visited by

Poole, Poole’s mother, and Poole’s girlfriend.2

      While the victim was in a coma, his bag was given to Poole for safekeeping, and

she brought it back with her to the home she shared with her girlfriend. But rather

abruptly, Poole left town for several days and did not return her girlfriend’s calls. This

did not sit well with the girlfriend. She felt uncomfortable having the victim’s bag in

her home without Poole present, so she gave it to Poole’s mother for safekeeping.

      When Poole’s mother received the bag and took it home with her, it still

contained cash and the victim’s wallet. But not long after, Poole texted her mother

and asked “Why do you have my daddy’s money? So everybody can take it[?]” Then,

when the victim was transferred to a rehabilitation facility where Poole’s mother

worked, he asked her to place the bag in the facility’s safe; but things went awry before

she could do so.

      2
       Of note, Poole had recently moved in with her girlfriend (who paid their
household bills and whose vehicle they both used).
                                            2
      After her mysterious three-day disappearance, Poole returned home driving the

victim’s truck. She then asked her girlfriend to drive her to her mother’s house,

purportedly to retrieve clothes she purchased while away. Poole’s mother left the

backdoor unlocked for family (even when she was not at home), and when Poole

emerged from the house, she was carrying a shopping bag and two shoe boxes. And

not long after this, Poole’s girlfriend noticed the gray lunch bag was back in the home

they shared.

      Around this same time, Poole’s mother looked for the bag in her home but could

not find it. She knew what had happened and informed the victim that Poole had taken

the bag before it could be placed in the rehabilitation facility’s safe. The victim then

attempted to speak with his daughter about the bag, but she refused to discuss the

matter. The victim then explained that he needed his wallet and documents to verify

his identification, at which point Poole returned her father’s wallet.

      The victim remained in care facilities for the next several months, and during

that time Poole dressed in new athletic wear and sneakers; purchased a motorcycle,

refrigerator, and various tools; got a large tattoo; and paid for repairs to her

girlfriend’s vehicle. Additionally, Poole’s girlfriend changed the locks at the victim’s


                                           3
apartment after Poole said he requested that they do so. Finally, Poole used the

victim’s truck to run errands and haul motorcycles, and she refused to return the

truck when he asked her to do so.

      When the victim finally returned home, he found the locks to his apartment

changed and had to contact the property owner to regain access. Once inside, he

found that his cash, iPad, watch, guns, knives, and paperwork were all missing. And

believing his daughter and her girlfriend were involved, he asked Poole to return his

property; but she only returned his weapons and paperwork.

      After Poole repeatedly refused to return his belongings, the victim contacted

law enforcement to report the missing items (including his truck and cash), and

relayed his suspicions that Poole was in possession of them. The truck was located at

Poole’s home and towed back to the victim’s residence at his request, but the $41,000

in cash was never recovered.3 Poole was subsequently charged with and convicted of

the offenses noted above. This appeal follows.


      3
        The victim was “not well physically . . . and still pretty sick” when he met
with law enforcement. As a result of losing his money, he was destitute. He could no
longer pay for a place to live, continue in-home care, repair the damage to his truck
that Poole caused while driving it, and was now unable to cover his own funeral
expenses.
                                          4
      Poole’s sole enumeration of error is that her convictions for theft by taking and

exploitation and intimidation of a disabled adult, elder person, or resident, are

mutually exclusive. We disagree.

      The term “mutually exclusive” generally applies to two guilty verdicts that

“cannot legally exist simultaneously,”4 and in such cases, when “it is both legally and

logically impossible to convict on both counts, a new trial should be ordered.”5 So,

when verdicts are mutually exclusive, a guilty verdict on “one count logically excludes

a finding of guilt on the other.”6 Indeed, when convictions are mutually exclusive, it

is insufficient to merely set aside the lesser verdict, because to do so is to “speculate

about what the jury might have done if properly instructed, and to usurp the functions




      4
       Middleton v. State, 

 (2) (

) (2020) (punctuation
omitted); accord Rutland v. State, 

 (1) (

) (2023);
McElrath v. State, 

 (2) (b) (

) (2020).
      5
        Middleton, 

 (2) (punctuation omitted); accord McElrath, 

 (2) (b).
      6
        Jackson v. State, 

 (2) (

) (2003) (punctuation
omitted), overruled on other grounds by State v. Springer, 

 (

)
(2015); accord Nalls v. State, 

 (3) (

) (2018); Tepanca v.
State, 

 (3) (

) (2015).
                                            5
of both the jury and trial court.”7 Accordingly, judgments entered upon such verdicts

are void.8

      Turning now to the offenses at issue, we begin by looking to the statutory

language for each. And in doing so, we necessarily begin our analysis with “familiar

and binding canons of construction.”9 Suffice it to say, in considering the meaning of

a statute, our charge is to “presume that the General Assembly meant what it said and

said what it meant.”10 Toward that end, we must afford the statutory text its plain and



      7
        Middleton, 

 (2) (punctuation omitted); accord McElrath, 

 (2) (b) (2020); Dumas v. State, 

 (1) (

) (1996).
      8
         Middleton, 

 (2). Because such judgments are void, “they may be
subsequently challenged even when an objection on that basis was not made at trial,”
as is the case here. 

 (punctuation omitted); see Philmore v. State, 

(

) (2017) (“Although this issue . . . was raised by Appellant for the first
time on appeal, it is preserved for our review as Georgia law recognizes that a sentence
which is not allowed by law is void and its illegality may not be waived.” (punctuation
omitted)).
      9
        Monumedia II, LLC v. Dep’t of Transp., 

 (1) (

)
(2017) (punctuation omitted); accord Holcomb v. Long, 

 (1) (

) (2014); In the Interest of L. T., 

 (

)
(2014).
      10
        Monumedia II, LLC, 

 (1) (punctuation omitted); accord
Deal v. Coleman, 

 (1) (a) (

) (2013); Holcomb, 

 (1); Martinez v. State, 

 (2) (

) (2013).
                                           6
ordinary meaning,11 consider the text contextually,12 read the text “in its most natural

and reasonable way, as an ordinary speaker of the English language would,”13 and seek

to “avoid a construction that makes some language mere surplusage.”14 Simply put,




       11
         Holcomb, 

 (1); accord Deal, 

 (1) (a); see Tibbles
v. Teachers Retirement Sys. of Ga., 

 (1) (

 (2015) (“A
statute draws its meaning, of course, from its text.” (punctuation and citation
omitted)); Chan v. Ellis, 

 (1) (

) (2015) (same); State v.
Able, 

 (

) (2013) (“A judge is charged with
interpreting the law in accordance with the original and/or plain meaning of the text
at issue (and all that the text fairly implies) . . . .”); Singletary v. State, 

 (

) (2011) (“In construing these statutes, we apply the
fundamental rules of statutory construction that require us to construe the statutes
according to their terms, [and] to give words their plain and ordinary meaning . . . .”
(punctuation omitted)).
       12
         Monumedia II, LLC, 

 (1); see Arizona v. Inter Tribal Council
of Arizona, Inc., 

 (II) (B) (

, 186 LE2d 239) (2013) (Scalia, J.)
(“Words that can have more than one meaning are given content, however, by their
surroundings.” (punctuation omitted)); Deal, 

 (1) (a) (“[W]e must view
the statutory text in the context in which it appears[.]”); see also Tibbles, 

(1) (“The common and customary usages of the words are important, but so is their
context.” (punctuation and citation omitted)).
       13
        Monumedia II, LLC, 

 (1) (punctuation omitted); accord
Deal, 

 (1) (a); Holcomb, 

 (1).
       14
         Monumedia II, LLC, 

 (1) (punctuation omitted); accord In
the Interest of L.T., 325 Ga. App. at 592; Holcomb, 

 (1).
                                             7
when the language of a statute is “plain and susceptible of only one natural and

reasonable construction, courts must construe the statute accordingly.”15

      Our initial focus, then, is on the statutory language used to describe the offenses

of theft by taking and exploitation and intimidation of a disabled adult. Looking first

to theft by taking, a person commits this offense when she “unlawfully takes or, being

in lawful possession thereof, unlawfully appropriates any property of another with the

intention of depriving him of the property, regardless of the manner in which the

property is taken or appropriated.”16 And in this case, Poole was indicted for theft by

taking in that she, “being in lawful possession of cash and money and a Silver Ford F-

150 truck, the property of [the victim], with a value of twenty-five thousand dollars

($25,000.00) and more, did unlawfully appropriate said property with the intention

of depriving said owner of said property[.]” She was also charged with exploitation

and intimidation of a disabled adult, under OCGA § 16-5-102 (a), which provides that


      15
         Monumedia II, LLC, 

 (1) (punctuation omitted); accord
Holcomb, 

 (1); Luangkhot v. State, 

 (1) (

 (2013), superseded by statute on other grounds as recognized by Estrada-Nava v. State,

 (

) (2015); see Deal, 

 (1) (a) (“[I]f the
statutory text is clear and unambiguous, we attribute to the statute its plain meaning,
and our search for statutory meaning is at an end.” (punctuation omitted)).
      16
           OCGA § 16-8-2.
                                            8
“[a]ny person who knowingly and willfully exploits a disabled adult, elder person, or

resident . . . shall be guilty of a felony and, upon conviction, shall be punished by

imprisonment for not less than one nor more than 20 years, a fine of not more than

$50,000.00, or both.” Specifically, Poole was indicted under this statute because she

      did knowingly and willfully exploit the resources of [the victim], a
      disabled adult, by means of deception, false pretense, false representation
      and other similar means, for the benefit of another, to wit: the accused
      did acquire money and a vehicle belonging to [the victim] while said
      person was medically incapacitated due to COVID 19, in a hospital and
      a care facility, and did use said money and vehicle for her own benefit
      rather than the benefit of the victim[.]


Nevertheless, Poole argues that her convictions for these offenses are mutually

exclusive because she was alleged to be “in lawful possession” of her father’s

property for purposes of theft by taking while, at the same time, exploiting him

through deception. This argument is a nonstarter.

      As Poole correctly notes, for purposes of OCGA § 16-5-102 (a), “exploit” is

defined as “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


                                          9
own or another person’s profit or advantage.”17 And looking to this definition and the

statutory language used to describe the offense of exploitation of a disabled adult,18

there is no requirement that Poole have been in possession of her father’s property

unlawfully to commit the offense. Indeed, as the foregoing facts demonstrate, Poole

improperly used (i.e., exploited) her father’s resources for her own benefit under the

false pretense that she was protecting his property—i.e., while she was ostensibly in

lawful possession of the property.19 Moreover, as previously explained, a person can


       17
            OCGA § 16-5-100 (6).
       18
         See OCGA § 16-5-102 (a) (providing that “[a]ny person who knowingly and
willfully exploits a disabled adult, elder person, or resident, willfully inflicts physical
pain, physical injury, sexual abuse, mental anguish, or unreasonable confinement upon
a disabled adult, elder person, or resident, or willfully deprives of essential services a
disabled adult, elder person, or resident shall be guilty of a felony and, upon
conviction, shall be punished by imprisonment for not less than one nor more than 20
years, a fine of not more than $50,000.00, or both”).
       19
         See Anderson v. State, 

 (1) (

) (2019)
(affirming convictions for theft by taking and exploitation of an elderly person when
evidence showed victim’s daughter (1) improperly used access to the victim’s bank
account to spend funds for defendant’s personal benefit and (2) unlawfully
appropriated funds while in lawful possession of money from the same bank account);
Escamilla v. State, 

, 655-56 (1) (

) (2018) (holding that
evidence defendant assisted victim and deceived her into transferring large sum of
money from victim’s account to defendant’s account supported defendant’s
conviction for exploitation of an elder person); see also Bradford v. State, 

 (2) (

) (2004) (noting that the State may indict someone for
                                            10
commit theft by taking when she, “being in lawful possession thereof, unlawfully

appropriates any property of another with the intention of depriving him of the

property, regardless of the manner in which the property is taken or appropriated.”20

So, the convictions at issue are not mutually exclusive and are instead legally and

logically capable of existing simultaneously.21


theft by taking, but prove theft by deception, which is committed when a person
obtains property by any deceitful means or artful practice with the intention of
depriving the owner of the property).
      20
           OCGA § 16-8-2.
      21
         See Bell v. State, 

 (2) (

) (2018) (holding
that convictions were not mutually exclusive when it was “not logically or legally
impossible to convict [the defendant] of stealing the cell phones and receiving the
stolen car” because the convictions involved different property); cf. Middleton, 

 (3) (“Because a conviction for theft by receiving—whether by receiving,
disposing of, or retaining stolen property—necessarily entails a finding that the
defendant was not the principal thief, such a conviction is legally and logically
incompatible with a conviction on the same facts for another offense that requires the
defendant to be the principal thief who took or obtained the same property from the
victim of the theft.”); Thomas v. State, 

 (1) (

) (1992)
(holding that convictions for robbery of a vehicle and theft by receiving were mutually
exclusive because “[t]he offense of theft by receiving is intended to catch the person
who buys or receives stolen goods, as distinct from the principal thief” and “[a]n
essential element of the crime of theft by receiving is, that the goods had been stolen
by some person other than the accused” (punctuation omitted)); Frazier v. State, 

 (1) (a) (

) (2016) (holding that convictions for
hijacking a car and theft by receiving the same stolen property were mutually exclusive
because the defendant “could not be convicted of both taking and receiving the stolen
                                          11
      For all these reasons, we affirm.

      Judgment affirmed. Rickman and Pipkin, JJ., concur.




property because one cannot receive stolen property unless it is first taken by someone
else”); Ingram v. State, 

 (5) (

) (2004) (holding
that convictions for theft by taking and theft by receiving were mutually exclusive
when theft by receiving applies to one other than the principal thief).
                                          12