                            FIRST DIVISION
                             PHIPPS, C. J.,
                    ELLINGTON, P. J., and MCMILLIAN, J.

                    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.
                               http://www.gaappeals.us/rules/


                                                                    October 16, 2014




In the Court of Appeals of Georgia
 A14A0885. NELSON v. THE STATE.

      ELLINGTON, Presiding Judge.

      Leonard Nelson entered a negotiated plea of guilty to violation of OCGA § 16-

14-4 (a) of the Georgia Racketeer Influenced and Corrupt Organizations Act, see

OCGA § 16-14-1 et seq. (“RICO”), and the trial court sentenced him to ten years

probation. The trial court ordered as a condition of probation that Nelson pay a total

of $725,000 in restitution to his victims. On appeal, Nelson contends that the trial

court erred because he established by a preponderance of the evidence that he lacked

the financial resources to pay restitution in the amount ordered. He also contends that

the trial court erred in awarding restitution to the victim named in Counts 6 through

12 of the indictment because the trial court entered an order of nolle prosequi at the
state’s request on those counts. We disagree and affirm for the reasons set forth below.

      “Any dispute as to the proper amount or type of restitution shall be resolved by

the ordering authority by the preponderance of the evidence.” OCGA § 17-14-7 (b).

On appeal, this Court reviews the record “to determine whether each party has met

his or her specified burden and whether a restitution award was supported by the

preponderance of the evidence.” (Citation and punctuation omitted.) In the Interest

of E. W., 290 Ga. App. 95, 96 (2) (658 SE2d 854) (2008). “It is well established that

review of evidence by this Court is limited to questions of sufficiency.” (Citation and

punctuation omitted.) Tindol v. State, 284 Ga. App. 45, 48 (4) (643 SE2d 329) (2007).

      1. The evidence adduced at the restitution hearing showed that Nelson was a

real estate investor who borrowed money from individuals, often from their

retirement accounts, to pursue various real estate deals. Nelson admitted that he stole

money from his investors. Numerous victims testified at the restitution hearing and

established the amounts they had tendered to Nelson through their testimony and

through promissory notes and other instruments Nelson signed. Following the

presentation of evidence, the trial court found that Nelson “had a plan, he had a

purpose. He took from all these people. He had no intention of paying them back.”



                                           2
      The trial court thereafter ordered that Nelson pay restitution to 22 victims in

the total amount of $725,000, and that as a condition of probation Nelson make

monthly payments towards that amount at $6,041.66 a month beginning on September

1, 2013. The total amount of restitution was inclusive of $230,000 to which Nelson

had previously stipulated as “partial restitution.” The stipulation also provided that

“further restitution may be ordered after a Restitution hearing.” Nelson does not

contest that he had financial resources to repay the $230,000. Nelson maintains,

however, that he established by the preponderance of the evidence that he lacked the

financial resources with which to pay more than the stipulated amount of restitution,

and that the trial court erred in finding otherwise. We disagree.

      Subject to the provisions of OCGA § 17-14-10, the trial court “shall, in

sentencing an offender, make a finding as to the amount of restitution due any victim,

and order an offender to make full restitution to such victim.” OCGA § 17-14-3 (a).

In turn, OCGA § 17-14-10 sets forth a list of factors which the trial court shall

consider in determining the nature and amount of restitution. These include “[t]he

financial resources and other assets of the offender or person ordered to pay

restitution . . . .,” “[t]he earnings and other income of the offender or person ordered

to pay restitution,” and “[a]ny financial obligations of the offender or person ordered

                                           3
to pay restitution, including obligations to dependents.” OCGA § 17-14-10 (a) (1),

(2), (3). The factors also include, however, the amount of damages, and the goal of

restitution to the victim and rehabilitation of the offender. OCGA § 17-14-10 (4), (5).

      The state had the burden of demonstrating the amount of the victims’ losses.

OCGA § 17-14-7 (b). Nelson, however had the burden of demonstrating his financial

resources and the financial needs of his dependents. See id. Nelson testified at the

restitution hearing that he had no assets of any value. According to Nelson, he was

“80 percent disabled,” lived with his mother, and was unemployed. He testified that

he received net disability benefits of $1,901 a month from the Department of Veterans

Affairs (the “VA”),1 and that he paid monthly child support to his two youngest

children in the amount of $725. Nelson was employed in law enforcement until 2006,

when he left the field to pursue real estate.

      Notwithstanding Nelson’s testimony, in its written order the trial court stated

that it had expressly considered Nelson’s present financial condition, his probable

future earnings capacity, and his obligations, and it determined that restitution could




      1
        An additional $125 was sent by the VA directly to each of his two oldest
children each month.

                                           4
be made by Nelson in the amount ordered.2 The trial court found, among other things,

that Nelson had the present condition to be gainfully employed notwithstanding his

claim to be 80 percent disabled. Notably, Nelson’s testimony at the restitution hearing

showed that he had worked in real estate during the period he claimed to be disabled.3

Further, although Nelson testified that he was without any assets, he had previously

been in possession of hundreds of thousands of dollars of the victims’ money. Some

of the victims’ money was used by Nelson for purposes of a “timber deal” in

Mississippi and Louisiana. According to Nelson, he had a lawsuit pending against his

former partner in the venture and “the timber has not been cut. So there is money still

there.” He also testified that his “part of that deal” was worth $4.8 million and that

any recovery would constitute an asset available to pay restitution.




      2
        The trial court was not required to make written findings of fact concerning
its consideration of the factors set forth in OCGA § 17-14-10, although it did so here.
See Futch v. State, 314 Ga. App. 294, 298 (3) (a) (723 SE2d 714) (2012) (finding that
“based on an amendment to the restitution statutes in 2005, a trial court is no longer
required to make written findings of fact concerning the factors to be considered in
determining the restitution amount, as set forth in OCGA § 17-14-10.”) (citation
omitted).
      3
         Nelson also submitted correspondence from the VA to show the amount of
his disability payments. The VA’s letter, however, did not expressly reference
disability.

                                          5
      In addition, following the presentation of evidence the trial court found that the

state had carried its burden, but that as to Nelson’s contention that he was not able to

pay, the judge stated, “I don’t believe him.” As the finder of fact, the trial court was

not required to find Nelson’s testimony credible, or to conclude, given the lack of that

credibility, that Nelson had carried his burden of demonstrating his financial

resources. See generally Lawton v. State, 285 Ga. App. 45, 47 (645 SE2d 571) (2007)

(noting that “the trial court, which sat as the finder of fact for purposes of the . . .

hearing, was entitled to disbelieve” the defendant); Matheson v. State, 249 Ga. App.

200, 201 (1) (547 SE2d 774) (2001) (“In a bench trial, the trial court weighs the

evidence and determines the credibility of witnesses.”). See also OCGA § 17-14-7 (b)

(disputes as to the amount of restitution shall be resolved by the ordering authority).

Nor does Nelson point to any authority “for the proposition that the court must

determine in advance that the defendant’s net worth or financial resources projected

over the intended years of repayment is mathematically sufficient to allow full

payment of the amount of restitution ordered.” McMahon v. State, 284 Ga. App. 192,

194 (2) (643 SE2d 236) (2007). Rather, the record shows that the trial court, upon

consideration of the factors laid out in OCGA § 17-14-10 (a), “based its restitution

award on competent evidence proving the amount granted by a preponderance of that

                                           6
evidence.” Graf v. State, 327 Ga. App. 598, 604 (760 SE2d 613) (2014). We find no

error.

         2. Nelson also contends that the trial court erred in ordering him to award

restitution to Jay Cropper, the victim listed in Counts 6 though 12 of the Indictment,

because the trial court entered an order of nolle prosequi on those counts. We

disagree. “Because the trial court’s ruling on a legal question is not due any

deference, we apply the ‘plain legal error’ standard of review.” (Punctuation and

footnote omitted.) Simmons v. State, 315 Ga. App. 82, 83 (1) (726 SE2d 573) (2012).

         Counts 6 through 12 of the Indictment alleged that Nelson committed theft by

taking funds from Cropper on seven different occasions between July 1, 2007 and

February 28, 2008. “The acts set forth” in Counts 6 through 12,4 among others, were

alleged to be predicate acts to the RICO violation and part of the racketeering

activity, and were expressly incorporated into Count 13. Nelson pled guilty to Count

13 of the indictment, which charged that he violated OCGA § 16-14-4 (a) of RICO

in that he unlawfully, through a pattern of racketeering activity, or proceeds derived

therefrom, acquired an interest in or control of property, including money, between

         4
        The acts involved the tender by Cropper to Nelson of various amounts of
money for investment in properties in Georgia and Mississippi, which money Nelson
then allegedly kept for his personal use.

                                           7
January 1, 2007 and December 31, 2008. The trial court agreed to enter nolle prosequi

on Counts 6 through 12 because Nelson pled guilty to Count 13.

      Cropper testified at the restitution hearing concerning the predicate acts which

were incorporated into Count 13. The trial court named Cropper as one of Nelson’s

victims in its restitution order because Cropper was a victim. Consistently with the

evidence of the actual losses incurred by Cropper, the trial court required Nelson to

make restitution to Cropper in the amount of $193,000.

      It is true, as Nelson points out, that “a defendant cannot be ordered to pay

restitution for a count on which he was acquitted or not charged,” including counts

that have been nolle prossed. (Punctuation and footnote omitted.) Wilder v. State, 314

Ga. App. 905, 906 (726 SE2d 154) (2012) (vacating and remanding order for a

determination of whether the amount of restitution was improperly based on nolle

prossed charges). Accordingly, we agree with Nelson that he could not be ordered to

pay restitution for Counts 6 through 12, as those accounts were nolle prossed.

Nevertheless, Nelson pled guilty and was sentenced for violating OCGA § 16-14-4

(a) of RICO under Count 13 of the indictment. And it was on account of that crime

that the trial court ordered restitution to the victims, including Cropper. Accordingly,

we find no error.

                                           8
Judgment affirmed. Phipps, C. J., and McMillian, J., concur.




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