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Hicks v. State

The scheme perpetrated by the defendant involved an investment contract or security, as the victims parted with their money in anticipation of investment gains, a common enterprise existed because the victims' funds were pooled to reach the minimum amounts for participation set by the defendant, and the expectation of profits rested solely on the efforts of others.

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A DeKalb County jury found Darryl Hicks guilty beyond a reasonable doubt of engaging in a pattern of racketeering activity in violation of the Georgia RICO Racketeer Influenced and Corrupt Organizations Act1 and nine counts of violating the Georgia Securities Act of 1973.2 Following the denial of his motion for a new trial, Hicks appeals, contending that the evidence was insufficient, that the trial court erred in denying his plea in bar and his motion for a mistrial, and that he received ineffective assistance of counsel. For the reasons explained below, we affirm. 1. Hicks contends that “the evidence was insufficient to show that an investment contract existed as defined and required by the Securities Act and that such contract was sold by him.”

The indictment charged that, in 2000 and 2001, Hicks violated the Securities Act as to three groups of victims and that, as to each group, he violated the same three provisions of the Securities Act. First, the indictment charged that Hicks “unlawfully and willfully offered for sale and did sell a security, to wit: an investment contract, . . . which security was not subject to an effective registration statement pursuant to OCGA § 10-5-5 a 1-3 2000.”3 Second, the indictment charged that Hicks “unlawfully and willfully offered for sale and did sell a security, to wit: an investment contract, . . . when he was not registered as a salesman of securities pursuant to OCGA § 10-5-3 a 2000.”4 Third, the indictment alleged that Hicks, in connection with an offer to sell and sale of a security engaged “in an act, practice, and course of business that would operate and did operate as a fraud and deceit upon the victims.”5 Finally, in ten paragraphs, the indictment charged Hicks with engaging in a pattern of racketeering based on his transactions with the victims.6

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