                             THIRD DIVISION
                                DILLARD,
                        MCFADDEN and RICKMAN, 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


                                                                    March 24, 2016




In the Court of Appeals of Georgia
 A15A1738. KIMBROUGH et al. v. THE STATE.

       MCFADDEN, Judge.

       The state charged appellants Heather Kimbrough and Melissa Ann Mayfield

(“the defendants”), along with two other people, with violation of the Georgia

Racketeer Influenced Corrupt Organizations (RICO) Act, OCGA §§ 16-14-1 et seq.

and certain drug offenses. The defendants filed general and special demurrers to the

Georgia RICO Act count of the indictment. The trial court denied the demurrers, and

we granted the defendants’ application for interlocutory review. On appeal, the

defendants argue that the indictment fails to specify how they violated the Georgia

RICO Act. We hold that the Georgia RICO Act count, which largely tracks the

language of the statute, is sufficient to withstand the demurrers and thus affirm the

trial court.
      1. State’s request to dismiss the appeal.

      Initially, we reject the state’s argument that we should dismiss the appeal

because Kimbrough did not timely file her demurrers. A defendant may file a general

demurrer at any time before the trial court. Jackson v. State, 316 Ga. App. 588, 592

(2) (730 SE2d 69) (2012). It is true that a defendant must file a special demurrer

“within ten days after the date of arraignment, unless the time for filing is extended

by the court.” OCGA § 17-7-110. See Palmer v. State, 282 Ga. 466, 468 (651 SE2d

86) (2007). But the state points to nothing in the appellate record showing the date

of arraignment so as to support its argument that Kimbrough’s special demurrer was

untimely. See McHugh Fuller Law Group v. PruittHealth-Toccoa, 297 Ga. 94, 98 (2)

(772 SE2d 660) (2015) (appellee may designate for inclusion in the appellate record

any materials that the appellant has omitted). In any event, it is not a ground for

dismissing an appeal that a special demurrer, or for that matter any motion, was not

timely filed in the trial court. See OCGA § 5-6-48 (b).

      2. Demurrers.

      “A demurrer to an indictment may be general or special. A general demurrer

challenges the very validity of the indictment [while] the special objects merely to its

form or seeks more information. . . .” Stinson v. State, 279 Ga. 177, 180 n. 3 (2) (611

                                           2
SE2d 52) (2005) (citation omitted). “We review a trial court’s ruling on a general or

special demurrer de novo in order to determine whether the allegations in the

indictment are legally sufficient.” Sallee v. State, 329 Ga. App. 612, 616 (2) (765

SE2d 758) (2014) (citations omitted).

      The defendants challenge count one of the indictment which charged them and

two other people with:

      the offense of RACKETEER INFLUENCED AND CORRUPT
      ORGANIZATIONS – CONDUCTING OR PARTICIPATING IN AN
      ENTERPRISE         THROUGH PATTERN OF RACKETEERING
      ACTIVITY (OCGA § 16-14-4 [b]) in that the said accused, in the State
      of Georgia and County of Gwinnett, between the 20th day of January,
      2012 and the 12th day of July, 2012, being associated with an enterprise
      to wit: Executive Wellness and Rehabilitation, did participate in,
      directly and indirectly, such enterprise through a pattern of racketeering
      activity, as more particularly described in this count and this indictment,
      which counts are incorporated herein by reference as if fully set forth.
      At all times material to this Count of this indictment, the enterprise was
      a corporation or a group of people associated in fact although not a legal
      entity. The pattern of racketeering activity consisted of the following:
      between the 20th day of January, 2012 and the 12th day of July, 2012,
      in Gwinnett County, Georgia, the accused did commit the offense of
      Violation of the Georgia Controlled Substances Act: Unauthorized
      Distribution (OCGA § 16-13-43), in that said accused unlawfully
      obtained possession of Oxycodone, a Schedule II Controlled Substance,

                                          3
      by withholding information from various practitioners, to wit: [five
      named individuals], that the accused had obtained a controlled substance
      of a similar therapeutic use in a concurrent time period from another
      practitioner, contrary to the laws of said State, the peace, good order and
      dignity thereof.


The next 21 counts of the indictment charged Kimbrough and Mayfield with specific

acts in violation of OCGA § 16-13-43, which prohibits the unauthorized distribution

of controlled substances. Under former OCGA § 16-14-3 (9) (A) (i),1 violations of

OCGA § 16-13-43 could be racketeering activity.

      (a) General demurrer.

      In a general demurrer, a defendant


      challenges the validity of an indictment by asserting that the substance
      of the indictment is legally insufficient to charge any crime, and it
      should be granted only when an indictment is absolutely void in that it
      fails to charge the accused with any act made a crime by the law. Put
      another way, the true test of the sufficiency of an indictment to
      withstand a general demurrer is found in the answer to the question: Can
      the defendant admit the charge as made and still be innocent? If he can,
      the indictment is fatally defective.



      1
       In 2015, the General Assembly revised OCGA § 16-14-3, and a substantially
similar provision is now found at OCGA § 16-14-3 (5) (A) (xxxiv).

                                             4
Poole v. State, 326 Ga. App. 243, 247-248 (2) (a) (756 SE2d 322) (2014) (citation

and punctuation omitted). And “[e]very indictment of the grand jury which states the

offense in the terms and language of [our] Code or so plainly that the nature of the

offense charged may easily be understood by the jury shall be deemed sufficiently

technical and correct.” OCGA § 17-7-54 (a). “Thus, an indictment couched in the

language of the statute alleged to have been violated is not subject to a general

demurrer.” State v. Wyatt, 295 Ga. 257, 260 (2) (759 SE2d 500) (2014) (citation and

punctuation omitted). Here, count one of the indictment substantially tracks the

language of OCGA § 16-14-4 (b), which provides that, “It shall be unlawful for any

person employed by or associated with any enterprise to conduct or participate in,

directly or indirectly, such enterprise through a pattern of racketeering activity.”

Count one was thus sufficient to withstand the defendants’ general demurrers. Wyatt,

295 Ga. at 260 (2).

      (b) Special demurrer.

      The defendants argue that the trial court erred by denying their special

demurrers because count one fails to inform them of: the manner in which they

allegedly participated in the enterprise; the enterprise’s relationship to the alleged



                                          5
racketeering activity; and which substantive counts in the indictment constitute the

predicate acts. We disagree.

       “By filing a special demurrer, an accused claims, not that the charge in an

indictment is fatally defective and incapable of supporting a conviction (as would be

asserted by general demurrer), but rather that the charge is imperfect as to form or that

the accused is entitled to more information.” State v. Delaby, 298 Ga. App. 723, 724

(681 SE2d 645) (2009) (citations and punctuation omitted). See also Christian v.

State, 288 Ga. App. 546, 548 (2) (654 SE2d 452) (2007) (defendant seeking “greater

specificity with regard to the . . . circumstances of the alleged crime” must file special

demurrer). We must determine

      not whether the indictment could have been clearer, but whether it states
      the elements of the offense and sufficiently apprises the defendant of
      what [s]he must be prepared to meet, and, in case any other proceedings
      are taken against [her] for a similar offense, whether the record shows
      with accuracy to what extent [s]he may plead a former acquittal or
      conviction.


Delaby, 298 Ga. App. at 724-725 (citation and punctuation omitted).

      (i) Participation in the enterprise and the enterprise’s relationship to the

alleged racketeering activity.


                                            6
      We reject the defendants’ arguments that the indictment does not sufficiently

allege the manner in which they participated in the enterprise and the enterprise’s

relationship to the alleged racketeering activity. We note at the outset that our

Supreme Court has rejected a vagueness and overbreadth challenge to OCGA § 16-

14-4 (b)’s “participate in [an] enterprise” language. (As detailed in Division 2 (a),

OCGA § 16-14-4 (b) provides that, “It shall be unlawful for any person employed by

or associated with any enterprise to conduct or participate in, directly or indirectly,

such enterprise through a pattern of racketeering activity.”). In Chancey v. State, 256

Ga. 415 (349 SE2d 717) (1986), the court rejected the contention that OCGA § 16-

14-4 (b) “is vague and overbroad in that it makes it unlawful to ‘associate’ or

‘participate’ even ‘indirectly’ in an enterprise.” Id. at 427-428 (III) (4) (D). The court

ruled that the challenge lacked merit because the statute requires “such participation

in the enterprise [to] be ‘through a pattern of racketeering activity.’” Id. at 428 (III)

(4) (D). Further, the court held “that ‘any person’ of average intelligence, on a clear

reading of that statute, together with relevant definitional provisions, could not help

but realize that they would be criminally liable for participating in ‘any enterprise,’

including their own, ‘through a pattern of racketeering activity.’” Id. (citations and

punctuation omitted).

                                            7
      Largely tracking the statutory language, and in accordance with the principles

of Chancey, count one of the indictment alleges that the defendants participated in

Executive Wellness through a pattern of racketeering activity. It generally describes

the racketeering activity as unlawfully obtaining possession of oxycodone by

withholding information from the practitioners who prescribed the drug and then

describes that activity more specifically by incorporating the remaining counts of the

indictment, which set out the predicate acts with more specificity.

      This is sufficient to allege the manner in which the defendants participated in

the enterprise: they participated by allegedly committing the predicate acts. Moreover,

count one provides a nexus between the predicate acts and the enterprise by use of the

preposition “through.” See Rodriguez v. State, 284 Ga. 803, 807 (1) (671 SE2d 497)

(2009) (addressing similar Georgia Street Gang Terrorism and Prevention Act).

      “Because the Georgia RICO Act was modeled after the federal statute, [our

supreme c]ourt has found federal authority persuasive in interpreting the Georgia

RICO statute. . . .” Williams Gen. Corp. v. Stone, 279 Ga. 428, 430 (614 SE2d 758)

(2005). Federal courts have rejected similar challenges to RICO indictments. See

United States v. McDonough, 959 F2d 1137, 1140-1141 (1st Cir. 1992); United States

v. Cauble, 706 F2d 1322, 1334 (B) (5th Cir. 1983).

                                          8
      It is true, as the defendants argue, that where the statutory definition of an

offense includes generic terms, the state may be required to state the “species of acts

charged [and] descend to particulars.” Delaby, 298 Ga. App. at 725 (citation and

punctuation omitted). But here, the state did just that, specifying in the counts

alleging predicate acts the acts that amounted to the defendants’ participation in the

enterprise. We conclude that the indictment, when read as a whole, was sufficient to

withstand the special demurrer on the these grounds. See State v. Pittman, 302 Ga.

App. 531, 534-535 (690 SE2d 661) (2010) (finding indictment that in one count

tracked the generic language of OCGA § 16-14-4 (a) and then in other counts

included detailed predicate acts was sufficient to withstand special demurrer).

      (ii) Predicate acts.

      We reject the defendants’ argument that the indictment does not clearly specify

the predicate acts alleged against them. As noted above, count one provides that the

defendants engaged in

      a pattern of racketeering activity, as more particularly described in this
      count and this indictment, which counts are incorporated herein by
      reference as if fully set forth. . . . The pattern of racketeering activity
      consisted of the following: . . . the accused did commit the offense of
      Violation of the Georgia Controlled Substances Act: Unauthorized
      Distribution (OCGA § 16-13-43), in that said accused unlawfully

                                          9
      obtained possession of Oxycodone, a Schedule II Controlled Substance,
      by withholding information from various practitioners. . . .


More succinctly, count one specifies that the pattern of racketeering activity was

unlawfully obtaining oxycodone, and it incorporates as predicate acts the remaining

counts of the indictment charging the defendants with unlawfully obtaining

oxycodone.

      Two of the counts against only Mayfield, counts 12 and 13, allege that she

unlawfully obtained hydrocodone, not oxycodone. Hydrocodone and oxycodone,

although both opioids, are depicted as two different controlled substances in our

Code. See OCGA § 16-13-26 (1) (A) (ix) & (xiv). To the extent that Mayfield argues

that the word “counts” means that the hydrocodone counts against her are also

charged as predicate acts, we disagree. The indictment is specific: it alleges that the

defendants’ unlawfully obtaining possession of oxycodone amounted to a pattern of

racketeering activity. And to the extent the word “counts” can be read to include

counts 12 and 13 – in spite of the sentence specifying that it is oxycodone at issue in

the RICO count – this is mere surplusage. “An allegation in an indictment that is

wholly unnecessary to constitute the offenses charged is mere surplusage.” Fair v.

State, 284 Ga. 165, 167 (2) (a) (664 SE2d 227) (2008) (citation and punctuation

                                          10
omitted). “Mere surplusage will not vitiate an indictment. . . . “ State v. Corhen, 306

Ga. App. 495, 499 (2) (700 SE2d 912) (2010) (citation omitted). Reading the word

“counts” to include counts 12 and 13

       is not essential to charge an offense under Count 1 . . . so [such a
       reading] may be omitted without affecting the validity of the individual
       charges. . . . [T]o the extent that the language is confusing to [Mayfield]
       because it fails to notify [her] as to what [predicate acts she] must
       defend against, disregarding or omitting [such a reading of] the language
       as surplusage resolves that confusion.


Id. at 499 (2).

       Judgment affirmed. Dillard and Rickman, J.J., concur.




                                           11
