                              FOURTH DIVISION
                              ELLINGTON, P. J.,
                           BRANCH and MERCIER, 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.
                                http://www.gaappeals.us/rules


                                                                  September 20, 2016




In the Court of Appeals of Georgia
 A16A1184. THE STATE v. CROWDER.

      MERCIER, Judge.

      On October 24, 2014, the State filed an indictment against Curtis Crowder,

alleging that between January 1, 2004 and June 30, 2010 he committed the offenses

of unlawful conversion of sales and use taxes, theft by taking, and false swearing.

Crowder filed a motion for plea in bar, contending that the indictment was barred by

the applicable four-year statute of limitation. After an evidentiary hearing, the trial

court entered an order granting Crowder’s motion. The State appeals, contending that

the statute of limitation was tolled pursuant to OCGA § 17-3-2 because the crimes

were unknown to the State until at least October 29, 2010. See OCGA § 5-7-1 (a) (3)

(pertinently, permitting an appeal by the State from an order sustaining a plea in bar).

Finding no error, we affirm.
      The appellate standard of review for a plea in bar asserting a statute of
      limitation defense is a de novo review of the issue of laws. As this ruling
      involves a mixed question of fact and law, we accept the trial court’s
      findings on disputed facts and witness credibility unless they are clearly
      erroneous, but independently apply the law to the facts.


State v. Conzo, 293 Ga. App. 72, 73 (666 SE2d 404) (2008) (citation omitted).

      The evidence shows that Crowder owned and operated Syntellus Dataworks,

LLC (“Syntellus”), which sold computer hardware and information technology

services. In 2003, Crowder applied for and received a sales tax identification number

from the Georgia Department of Revenue (“DOR”) in 2003 for his business, showing

his intent to collect sales tax. During the spring of 2010, Joe Paris, a tax specialist

employed by the DOR, began conducting a routine sales tax audit of Syntellus.

During the course of the audit, Paris’s co-worker and office-mate, Sharon Martin, was

processing a sales tax refund request submitted by SunTrust Bank when, in August

2010,1 she discovered that Syntellus had collected sales tax from customer SunTrust

      1
         SunTrust made the refund request pursuant to a State technology rebate
program, seeking a refund of sales taxes SunTrust paid for computer equipment
purchased from Syntellus. To apply for the refund, SunTrust was required to obtain
a certificate wherein the seller of the equipment stated under oath that he had
collected the sales tax, had remitted the sales tax to the DOR, and was declining to
claim the refund for itself. SunTrust submitted three such certificates to the DOR,
which Crowder signed in April 2009 and January 2010. These certificates form the

                                          2
Bank in 2006, 2007, and 2008, but had not remitted any sales tax to the State. Martin

knew that Paris was conducting a sales tax audit of Syntellus, so she informed Paris

in August 2010 about SunTrust’s sales tax refund request, told him that Crowder had

signed refund certificates indicating that he had collected and remitted taxes in

connection with the sales, and informed him of her discovery that Crowder had not

filed any sales tax returns and had not remitted any sales tax. Martin sent the signed

certificates to Paris in August 2010. The DOR denied the refund request because no

sales tax payments had been remitted.

      On September 8, 2010, Paris met with Crowder, at which time Crowder showed

him copies of Syntellus’s Georgia sales tax returns for all audit years from 2004

forward. Paris testified that the returns showed sales tax due from Syntellus to the

DOR and that, by the end of that meeting, he knew that Crowder had collected the

sales tax and had failed to remit it. Paris asked Crowder at the meeting why he had

not remitted the sales tax and stated that they would “work out” repayment terms.

Paris also testified that he knew in July 2010 that there had been no sales tax

payments made on Syntellus’s account since the business opened in 2003; that was

Paris’s reason for expanding the audit period back to January 1, 2004.

basis of Counts 3 through 5 of the indictment (false swearing). See infra.

                                          3
      On October 1, 2010, the DOR sent Crowder a notice to produce documents

related to Syntellus’s sales tax compliance. In response, Crowder sent summaries of

sales rather than details of individual transactions. Finding Crowder’s response

insufficient, the DOR issued a tax assessment on October 29, 2010; the assessment

contained an estimate of Syntellus’s sales tax liability based on the sales summaries.

Crowder protested the assessment and submitted detailed invoices to the DOR in

January 2011. According to the State, “[i]t was only upon receipt of this ‘invoice

detail’ level of information that the Department of Revenue was able to accurately

analyze Syntellus’ sales tax liability and determine whether any crime had been

committed.”

      On October 24, 2014, the State filed the indictment against Crowder on one

count of unlawful conversion of funds collected for the benefit of the State (OCGA

§ 48-1-5), one count of theft by taking (OCGA § 16-8-2), and three counts of false

swearing (OCGA § 16-10-71). As to the conversion charge (Count 1) and the theft

charge (Count 2), the indictment alleged that between January 1, 2004 and June 30,

2010, Crowder converted and appropriated sales and use taxes Syntellus collected

from retail customers. As to the false swearing charges (Counts 3, 4 and 5), the

indictment alleged that Crowder executed three forms under oath, titled “Waiver of

                                          4
Vendor’s Rights for Refund of the Georgia Department of Revenue” (“waiver

forms”), for the years 2006, 2007, and 2008, on which Crowder stated that the sales

tax shown was collected from SunTrust Bank and remitted to the DOR. More

specifically, Count 3 alleged that Crowder made the false statements on or about

April 23, 2009, and Counts 4 and 5 alleged that he made the false statements on

January 19, 2010. The indictment asserted that the five counts did not fall outside the

four-year statute of limitation period otherwise applicable to these offenses “because,

pursuant to OCGA § 17-3-2, the crime[s] [were] unknown until at least October 29,

2010.”

      In his motion for plea in bar, Crowder requested that the charges be dismissed

because they were not brought within four years of the dates on which the crimes

were allegedly committed (to wit, January 1, 2004 through June 30, 2010), as

required by OCGA § 17-3-1. Crowder added that the evidence and the law belied the

State’s assertion that the government did not know of the alleged crimes before

October 29, 2010.

      In its order granting the plea in bar, the trial court noted that because the

alleged crimes occurred no later than June 30, 2010, the October 24, 2014 indictment

was filed outside of the four-year statute of limitation period, and that the prosecution

                                           5
for the crimes was thus barred unless the State proved that the limitation period was

tolled pursuant to OCGA § 17-3-2 (2), as alleged in the indictment. The trial court

further noted that the statute of limitation began to run for each count of the

indictment on the date the State had actual knowledge of Crowder’s acts, and found

that the State learned of the relevant acts “over the course of the audit [which began

in the spring of 2010], well before DOR sent the assessment to [Crowder] on October

29, 2010.”



      OCGA 17-3-1 (c) provides, in relevant part, that prosecutions for felonies must

be commenced within four years after the commission of the crime. See OCGA §§

48-1-5, 16-8-12 (a) (1) (unlawful conversion of funds collected for benefit of State;

felony treatment based on value); OCGA §§ 16-8-2, 16-8-12 (a) (1) (theft by taking;

felony treatment based on value); OCGA § 16-10-71 (false swearing is punishable as

a felony); see generally Pippin v. State, 166 Ga. App. 658, 659 (305 SE2d 408)

(1983) (in determining value for felony versus misdemeanor treatment of theft, court

applies the statutory dollar amount in effect at the time the crime was committed).

      OCGA § 17-3-2 (2) pertinently states: “The period within which a prosecution

must be commenced under Code Section 17-3-1 . . . does not include any period in

                                          6
which . . . the crime is unknown.” Under OCGA § 17-3-2 (2), the knowledge of the

victim (here, the DOR) is imputed to the State. See Royal v. State, 314 Ga. App. 20,

22 (1) (723 SE2d 118) (2012). “[T]he determination of when the crime was

discovered is a factual one.” State v. Campbell, 295 Ga. App. 856, 858 (673 SE2d

336) (2009) (footnote omitted). The burden is on the state to prove that the crime

occurred either within the statute of limitation, or, if an exception to the statute is

alleged, to prove that the case falls within the exception. Martinez v. State, 306 Ga.

App. 512, 522 (2) (702 SE2d 747) (2010); see State v. Mullins, 321 Ga. App. 671

(742 SE2d 490) (2013). Whether the state has met this burden is for the finder of fact.

Merritt v. State, 254 Ga. App. 788, 789 (1) (a) (564 SE2d 3) (2002). “Exceptions will

not be implied to statutes of limitation for criminal offenses, and . . . any exception

to the limitation period must be construed narrowly and in a light most favorable to

the accused.” Jannuzo v. State, 322 Ga. App. 760, 761 (746 SE2d 238) (2013)

(citation and punctuation omitted).



      The State argues that the DOR did not have actual knowledge of the crimes

“until after the provision of information by Syntellus following the assessment of

October 29, 2010,” and that it was only after it received the detailed invoices in

                                          7
January 2011 that the DOR was able to determine whether any crimes had been

committed. We hold that the trial court’s finding that the DOR had actual knowledge

of the acts underlying the charges prior to October 29, 2010 was not clearly

erroneous.

      As discussed above, the evidence included testimony that Crowder received a

sales tax identification number from the DOR in 2003 for his “Resale” business,

showing his intent to collect sales tax; that Paris, a DOR employee/auditor, knew in

July 2010 that no sales tax had been paid on Syntellus’s account since the business

opened in 2003; that Martin, a DOR employee/auditor, learned in August 2010 that

Syntellus had sold goods to SunTrust Bank and collected sales tax on those sales; that

the sales tax collected had not been remitted to the DOR; that Martin relayed that

information to Paris, who had been conducting a sales tax audit of Syntellus since the

spring; that in August 2010, Martin forwarded to Paris the waiver forms in which

Crowder swore that he had collected the sales tax and remitted the tax to the DOR;

that on Syntellus’s 2008 and 2009 Georgia corporate tax returns, filed on September

9, 2009 and September 17, 2010, Crowder disclosed to the DOR that the company

sold computer hardware and that it had current sales tax liability exceeding $1

million; and that by early September 2010, Paris had “no doubt” that Crowder had

                                          8
collected sales tax and failed to remit the tax to the State. Although Paris testified that

at the beginning of the audit he thought Syntellus was a service provider and

therefore had no sales tax to return or remit, and that it was possible that Crowder was

remitting the sales tax owed from a different account, the DOR had information

before October 29, 2010 that contradicted those explanations. Thus, the trial court’s

finding that the State had actual knowledge of the crimes before October 29, 2010

was not clearly erroneous. See Beauchamp v. State, 258 Ga. App. 871 (575 SE2d

731) (2002) (a “trial court’s findings of fact are not clearly erroneous if there is any

evidence to support them”). Because the prosecution was not commenced until

October 24, 2014, the trial court did not err in granting the motion for plea in bar.

       The State asserts, however, that the statute of limitation period was tolled

because “[y]ou don’t know anything until you see the details,” and Paris did not know

“the details” until “after the assessment of October 29, 2010 and the subsequent

provision of information by Syntellus.” But there was evidence that the DOR had

actual knowledge prior to October 29, 2010 that Crowder had collected sales tax, had

not remitted the tax, and had falsely sworn that he had remitted the tax to the DOR.

The fact that the DOR may not have known some details or known that Crowder’s

acts were criminal does not mean the DOR lacked actual knowledge of Crowder’s

                                            9
conduct for the purpose of tolling the prosecution. See State v. Lowman, 198 Ga.

App. 8, 9 (400 SE2d 373) (1990). To avail itself of the tolling provision, the DOR

must have lacked knowledge of the act itself. Id.; State v. Briggs, 332 Ga. App. 608,

611 (2) (774 SE2d 182) (2015) (physical precedent only). The statute of limitation

cannot be tolled for the routine investigation of crimes, or based upon the subjective

opinion of the DOR or the prosecutor as to whether there is enough evidence to file

charges. See Jenkins v. State, 278 Ga. 598, 603 (1) (A) (604 SE2d 789) (2004);

Briggs, supra. There being evidence that the DOR had actual knowledge of

Crowder’s acts before October 29, 2010 (the earliest date the State alleged it had

knowledge), the trial court did not err by finding that the State failed to prove that the

exception to the statute of limitation applied in this case.

      The cases upon which the State relies to support its position are inapposite. For

instance, in one of those cases, State v. Campbell, supra, this Court reversed the grant

of a plea in bar because the trial court had relied on an incorrect legal standard in

determining when the tolling period ended - the trial court erroneously based its

decision on when the injured party could have known or should have known of the

criminal acts, rather than when the injured party had actual knowledge of the

defendant’s conduct. Id. at 858. In the instant case, however, the trial court used the

                                           10
proper legal standard. And here, unlike in Campbell, there was evidence that the

victim first learned of the conduct at issue less than four years before the State filed

the indictment. Id. at 856-857.

      Likewise, in another case relied upon by the State, Harper v. State, 292 Ga. 557

(738 SE2d 584) (2013), the Supreme Court found, in relevant part, that the trial court

erred by failing to analyze the statute of limitation issue in terms of the date that the

crimes became known to the victim; the Court thus remanded the case for necessary

factual findings applying the proper standard. Id. at 563 (3). Notably, the State

contends that Harper supports its argument that actual knowledge exists only after

the victim “see[s] the details.” But Harper does not state that. Further, the two cases

are distinguishable in that in the instant case the auditors were the victim’s

employees, and the evidence showed more than the mere raising of “questions”

during the four-year limitation period.

      Finally, in Royal, supra, which involved an allegation that an insured (the

defendant) committed disability insurance fraud, an employee of the defendant called

the insurance company’s fraud hotline and reported that the defendant was working

while receiving disability payments. Id. at 21. This Court held that the tolling period

ended when an investigator for the insurance company (the victim) met with the

                                           11
caller, reviewed documents during that meeting, and had “some corroboration of the

[caller’s] allegations.” Id. at 22. We held that the trial court did not clearly err by

finding that the victim had actual knowledge of the specific acts constituting the

crime once the victim’s investigator met with the caller and reviewed the documents

provided during that meeting; the victim’s investigator believed that the documents

provided some corroboration of the caller’s allegations. Id. In Royal, the tolling

period ended on the date of that meeting - even though the investigator believed that

the documentation provided “was not ‘enough at that point’ to [r]eport the suspected

insurance fraud to the insurance commissioner,” and despite the fact that the

investigator still wanted further documentation and conducted additional interviews

before making any formal fraud referral to the insurance commissioner. Id. at 22-23.

In the instant case, by contrast, the specific acts at issue were not reported to the

victim in a phone call from a third-party, but were discovered by the victim’s own

employees/auditors. Further, the victim in this case had documentation and other

evidence of the specific acts at issue within the limitation period, and well before

October 29, 2010 (the earliest date the State claimed to have had knowledge of the

acts). That Paris wanted to gather additional details or information (particularly after



                                          12
the September 8, 2010 meeting) did not toll the limitation period. See generally

Jenkins, supra. Our decision in Royal does not provide otherwise.

      As noted above, any exception to the limitation period must be construed

narrowly and in a light most favorable to the accused. Jannuzo, supra. In this case,

the trial court did not clearly err by finding that the State failed to meet its burden of

proving that it lacked actual knowledge of the specific acts constituting the charged

crimes during the limitation period. Thus, the trial court did not err by granting

Crowder’s motion for plea in bar. See Jenkins, supra at 603 (1) (A).

      Judgment affirmed. Ellington, P. J., and Branch, J., concur.




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