A person commits the offense of theft by taking when he 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.
(Laws 1833, Cobb's 1851 Digest, p. 791; Code 1863, § 4290; Code 1868, § 4327; Code 1873, § 4393; Code 1882, § 4393; Penal Code 1895, § 155; Penal Code 1910, § 152; Code 1933, § 26-2602; Code 1933, § 26-1802, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1974, p. 468, § 1; Ga. L. 1975, p. 876, § 1; Ga. L. 1978, p. 2257, § 1.)
Law reviews.- For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article, "Legal Remedies for Computer Abuse," see 21 Ga. St. B.J. 100 (1985). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B.J. 8 (2001). For annual survey of construction law, see 56 Mercer L. Rev. 109 (2004).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Penal Code 1910, §§ 172, 174; former Ga. L. 1919, p. 135, § 20; former Code 1933, §§ 26-2602, 26-2803, as it read prior to revision of the title by Ga. L. 1968, p. 1249, and former Code 1933, § 26-1813, are included in the annotations for this Code section.
Former Code 1933, § 26-1802(a) (see now O.C.G.A. § 16-8-2) was not violative of the due process provisions of the state and federal Constitutions; it was not so vague, uncertain and indefinite that it failed to inform persons charged thereunder of the conduct proscribed thereby. Stull v. State, 230 Ga. 99, 196 S.E.2d 7 (1973).
Construction with Immigration and Nationality Act.- Conviction for theft by taking under Georgia law was not a "theft offense" as that term is defined under the Immigration and Nationality Act, 8 U.S.C. § 1151, because taking property through fraudulently obtained consent is not "without consent"; therefore, a lawful permanent resident's deportation was not supported by the resident's guilty plea to theft by taking, based on charges that the resident took merchandise from a department store while working at the store. Vassell v. United States AG, 839 F.3d 1352 (11th Cir. 2016).
Phrase "regardless of the manner in which the property is taken or appropriated" in O.C.G.A. § 16-8-2 established that it did not require any lack of consent on the part of the victim; the statute was overbroad because the statute punished both theft and fraud, and a violation of the statute wasn't necessarily a "theft offense" as that term was used in the Immigration and Nationality Act, 8 U.S.C. § 1151. Vassell v. United States AG, 825 F.3d 1252 (11th Cir. 2016).
Fraudulent transfer not predicate act under RICO.
- Trial court erred by failing to dismiss the plaintiff's claim for theft as a predicate offense under the Georgia RICO statute because a fraudulent transfer was not an enumerated predicate offense under the Georgia RICO statute, but instead, a civil tort governed by the Uniform Voidable Transactions Act, O.C.G.A. § 18-2-70 et seq. Z-Space, Inc. v. Dantanna's CNN Center, LLC, 349 Ga. App. 248, 825 S.E.2d 628 (2019).
No private right of action.
- In a declaratory judgment case in which three intended beneficiaries alleged that an insurance company violated O.C.G.A. §§ 16-8-2,16-8-3, and16-8-4, those criminal statutes did not create a private cause of action. Am. Gen. Life & Accident Ins. Co. v. Ward, 509 F. Supp. 2d 1324 (N.D. Ga. Mar. 12, 2007).
Mortgage borrower could not bring civil claims against a loan servicer under O.C.G.A. §§ 16-8-2,16-8-3, and16-8-4, which were criminal statutes prohibiting theft by taking, by conversion, and by deception; the statutes did not purport to create a private cause of action. Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 1366 (N.D. Ga. 2012).
When a car buyer appealed a district court's entry of summary judgment in favor of a lender, the Georgia criminal statutes for trespassing and theft, O.C.G.A. §§ 16-7-21,16-8-2, and16-8-3, did not expressly provide for a civil remedy and, thus, a civil remedy could not arise from a violation of those statutes. Goia v. Citifinancial Auto, 499 Fed. Appx. 930 (11th Cir. Dec. 3, 2012)(Unpublished).
Violation of criminal statute did not automatically give rise to civil liability.
- Trial court erred in denying the defendants summary judgment on the claims alleging that the defendants committed the criminal offenses of theft by taking, theft by deception, and theft by conversion because the violation of a penal statute did not automatically give rise to a civil cause of action on the part of one who was injured thereby and plaintiff made no showing that the alleged penal violations gave rise to civil liability. McCalla Raymer, LLC v. Foxfire Acres, Inc., Ga. App. , 846 S.E.2d 404 (2020).
Civil liability for damages.
- Plaintiff failed to plead a claim to recover damages for conversion under O.C.G.A. § 51-10-6 based on a violation of two criminal statutes - theft by conversion of payments for property improvements and theft by taking - as the plaintiff did not allege any of the necessary elements to establish the violations and did not allege that the defendant was charged with or found guilty of a violation of those statutes. Vanbenschoten v. Turner (In re Turner), Bankr. (Bankr. S.D. Ga. Mar. 31, 2017).
In a dispute involving a homeowners' association's (HOA) claim of a pedestrian easement access across a subdivision lot to a lake, the term "10' PEDESTRIAN ESMT" on the plat was void for uncertainty of description. The lot owners' counterclaims for trespass, theft by taking (for removal of a sign), interfering with the right of quiet enjoyment, attorney's fees, and punitive damages presented jury questions; however, their claim for intentional infliction of emotional distress was subject to summary judgment. The Plantation at Bay Creek Homeowners Association, Inc. v. Glasier, 349 Ga. App. 203, 825 S.E.2d 542 (2019).
Indictment need only inform generally.
- It was not essential to a charge under former Code 1933, § 26-1802 (see now O.C.G.A. § 16-8-2) that the indictment do more than inform the accused generally of the items which it contended were taken. Stull v. State, 230 Ga. 99, 196 S.E.2d 7 (1973).
Defendant was not prejudiced by poorly drafted language in an indictment that otherwise contained the statutory elements of the offense of theft by taking. Franklin v. State, 243 Ga. App. 440, 533 S.E.2d 455 (2000).
Second indictment did not need to allege special exception to statute of limitations.
- Trial court properly denied the defendant's motion in arrest of a judgment of conviction for burglary and theft by taking because the second indictment was filed within the six-month extension authorized by O.C.G.A. § 17-3-3 and, therefore, did not need to allege an exception to the four-year statute of limitation. Johnson v. State, 335 Ga. App. 886, 782 S.E.2d 50 (2016).
First indictment, while perhaps not perfect in form, was not void; therefore, under O.C.G.A. § 17-3-3, the statute of limitation was properly extended by an additional six months after the first indictment was quashed and the state did not need to allege any exception to the limitation period in the second indictment for burglary or theft. Johnson v. State, 335 Ga. App. 886, 782 S.E.2d 50 (2016).
Sufficiency of indictment.
- Trial court erred in overruling the defendant's special demurrer with regard to portions of the indictment that contended that the Medicaid fraud and theft by taking crimes were committed over a range of 38 months because the specific dates were known to the state and the state should have listed those dates due to the number of alleged acts. Cole v. State, 334 Ga. App. 752, 780 S.E.2d 406 (2015).
Motion to compel response to subpoena duces tecum.
- In a theft by taking case, the trial court erred in denying the defendant's motion to compel a response to the defendant's subpoena duces tecum as the defendant met the burden of showing the relevance of the evidence sought in the subpoena because the defendant demonstrated that the defendant sought the documents not just for use in cross-examining the pharmacy owner, but also to prove the volume of cash that the pharmacy used to pay its cash-based employees and that the defendant took cash out of the register at the employer's direction to pay those employees and other expenses. Gregg v. State, 331 Ga. App. 833, 771 S.E.2d 486 (2015).
Failure to allege "property of another".
- Indictment for robbery by force, O.C.G.A. § 16-8-40(a)(1), was defective because the indictment failed to allege the essential element that the defendant took the "property of another," and the defendant could admit all the allegations in the indictment and not be guilty of a crime; likewise, the defendant would not be guilty of theft by taking, which also required that the accused had taken the property of another, O.C.G.A. § 16-8-2. Cooks v. State, 325 Ga. App. 426, 750 S.E.2d 765 (2013).
Word "theft" is word of general and broad connotation, covering any criminal appropriation of another's property to the taker's use, unlike "larceny," a technical word of art with narrowly defined meaning. The fact that the defendants were in recent possession of stolen goods without a reasonable explanation will authorize a conviction of theft by taking. Henson v. State, 136 Ga. App. 868, 222 S.E.2d 685 (1975).
Probable cause to charge.
- In a malicious prosecution action, even though the employee had been given temporary custody of the employer's truck, the employee's retention of the truck after the employee was ordered to return it gave the employer probable cause to charge the employee with theft by taking. Tate v. Holloway, 231 Ga. App. 831, 499 S.E.2d 72 (1998).
Probable cause found for warrantless arrest.
- Defendant's warrantless arrest for theft under either O.C.G.A. § 16-8-2 or O.C.G.A. § 16-8-7(a) was supported by probable cause as: (1) an officer observed defendant banging on and breaking into a coin-operated air compressor in the middle of the night; (2) the officer recognized the air compressor as belonging to a gas station; (3) the officer saw defendant at the gas station less than 24 hours earlier; and (4) defendant refused to provide information that would verify the claim that defendant had lawfully obtained the compressor. Cole v. State, 273 Ga. App. 259, 614 S.E.2d 883 (2005).
Gravamen of offense is taking of property of another against will of such other. Stull v. State, 230 Ga. 99, 196 S.E.2d 7 (1973).
Plea agreement.
- Trial court committed reversible error when the court failed to follow the bright line test, as required by State v. Germany and Ga. Unif. Super. Ct. R. 33.10, by failing to inform the defendant personally that: (1) the trial court was not bound by any plea agreement encompassing defendant's plea to theft by taking; (2) the trial court intended to reject the plea agreement presently before it; (3) the disposition of the present case might be less favorable to the defendant than that contemplated by the plea agreement; and (4) that the defendant had a right to then withdraw the guilty plea. Mulkey v. State, 265 Ga. App. 631, 595 S.E.2d 330 (2004).
Because nothing in the transcript of the plea hearing indicated that the defendant entered a negotiated plea, but rather the plea was open-ended, the trial court was not required to comply with Ga. Unif. Super. Ct. R. 33.10; hence, a lack of compliance with the rule could not serve as a basis to allow the withdrawal of the plea. Manley v. State, 287 Ga. App. 358, 651 S.E.2d 453 (2007), cert. denied, 2008 Ga. LEXIS 94 (Ga. 2008).
Merger inappropriate.
- Each and every transaction in which the defendant, the director and a fiduciary of the animal shelter, took money belonging to the animal shelter with the intent of depriving the facility of that money constituted a separate and distinct completed crime; thus, the defendant's convictions for theft by taking did not merge into one count. Kilby v. State, 335 Ga. App. 238, 780 S.E.2d 411 (2015), cert. denied, No. S16C0653, No. S16C0653, 2016 Ga. LEXIS 437 (Ga. 2016).
Merger inappropriate.- Because the defendant's convictions for forgery and theft by taking each required proof that the other did not, there was no merit to the defendant's argument that those offenses should have merged. Townsend v. State, Ga. App. , S.E.2d (Sept. 24, 2020).
Venue proper in county where checks taken, not deposited.
- Venue in prosecution for theft by taking, where defendants took checks in one county and deposited them in their bank account in another county was proper in the county where the checks were taken. Hawkins v. State, 167 Ga. App. 143, 305 S.E.2d 797 (1983).
Venue not established.
- State failed to establish venue when the indictment was for theft by taking from a trust which at all times was located in another state, not in the county where the trust beneficiary lived. DeVine v. State, 229 Ga. App. 346, 494 S.E.2d 87 (1997).
Evidence sufficient to establish venue.
- Evidence was sufficient to establish venue beyond a reasonable doubt and to sustain the defendant's conviction for theft by taking because the state established that the defendant wrote checks at a company's county office, the amount of the check cashed exceeded the amount entered into the computer register, and the total amount of the difference was more than $500; the company president testified that the company was located in the county where the defendant's trial was held and that the defendant worked at the company office and then began working from home. Gautreaux v. State, 314 Ga. App. 103, 722 S.E.2d 915 (2012).
In a theft by taking case involving the theft of donations to an animal shelter, the evidence was sufficient to prove that venue was proper in Rabun County, Georgia, as the defendant exercised control over the money in that county because the state elicited direct testimony that the animal shelter was located in that county, that the defendant's residence was located in that county, that one bank used in the theft was located in that county, that one branch of another bank was located in that county, and that the defendant's "fundraising" efforts were conducted in that county, on either the defendant's home or work computer. Kilby v. State, 335 Ga. App. 238, 780 S.E.2d 411 (2015), cert. denied, No. S16C0653, No. S16C0653, 2016 Ga. LEXIS 437 (Ga. 2016).
Venue sufficiently established.
- Venue was sufficiently established in Cobb County, Georgia, pursuant to O.C.G.A. § 16-8-11 in the defendant's trial for theft by taking in violation of O.C.G.A. § 16-8-2 because a Secret Service agent testified that during the investigation, the agent discovered that checks disbursed from the victims' loans were sent to the defendant at the defendant's mailbox located in Cobb County. Bearden v. State, 316 Ga. App. 721, 728 S.E.2d 874 (2012).
Venue in theft by taking case.
- In an action for theft by taking, venue was properly shown as the trial court was authorized to find that deposit of the subject check had been made by the defendant or someone acting on the defendant's behalf; specifically, the check was deposited into a business account for the defendant's wife and the defendant identified the defendant's new company to the homeowner and the general contractor at a meeting. Erick v. State, 322 Ga. App. 71, 744 S.E.2d 69 (2013).
Repossession is not theft.
- Defendant's conviction for theft by taking was reversed, where the trial court's findings indicated that defendant's intent was to repossess a motorcycle under an honest claim of right after purchasers had defaulted on their payments. Edens v. State, 197 Ga. App. 146, 397 S.E.2d 612 (1990).
Moment one removes property from place it is kept with intention of stealing it, the crime of theft by taking is complete, regardless of any consent that may be obtained subsequently from the owner. Henderson v. State, 167 Ga. App. 808, 307 S.E.2d 704 (1983).
Theft of several items as one crime.
- When several articles are stolen at the same time, the defendant has committed only one offense, whether one or more persons owns the articles. Hubbard v. State, 168 Ga. App. 778, 310 S.E.2d 556 (1983).
There can only be one sentence and conviction if several items are stolen as part of a continuous criminal act. Bigby v. State, 184 Ga. App. 94, 360 S.E.2d 751 (1987).
Merger of several counts was required.
- Three theft-by-taking counts against a defendant required merger since the case involved one victim who was robbed of multiple items in a single transaction; therefore, only one robbery was committed. Jones v. State, 285 Ga. App. 114, 645 S.E.2d 602 (2007).
Taking money from vehicle after taking vehicle as second criminal act.
- Although money was in a van at the time the van was stolen, the jury was authorized to find that defendant was not then aware of its presence, and defendant's act of physically taking the money from its hiding place, coupled with the then present intent to steal it, was thus a second criminal act against the property of the victim, which was separate and distinct from the earlier theft of the van. Accordingly, the trial court did not err in failing to grant appellant's motion for a directed verdict of acquittal as to one of the counts of theft by taking. Cook v. State, 180 Ga. App. 139, 348 S.E.2d 687 (1986).
Theft by taking a motor vehicle and theft by taking a purse should have merged.
- Trial court erred by failing to merge a theft by taking of a motor vehicle count with a theft by taking a purse count as the state conceded that the record was unclear as to whether the theft of the vehicle and the theft of the purse constituted two separate acts, and the evidence appeared to show that the victim's purse was stolen as a result of being inside the car when the car was stolen by the defendant. Hall v. State, 292 Ga. App. 544, 664 S.E.2d 882, cert. denied, No. S08C1841, 2008 Ga. LEXIS 926 (Ga. 2008).
Theft by taking did not merge with entering an automobile because the defendant completed the latter offense at the time the defendant entered the truck with the intent of taking items stored inside the truck, and because different elements had to be demonstrated to find the defendant guilty of both offenses. Hawkins v. State, 219 Ga. App. 484, 465 S.E.2d 527 (1995).
Theft by taking not lesser included offense of armed robbery and robbery by intimidation.
- Evidence showed that defendant committed robbery either by use of a replica of a handgun or by intimidation and no evidence was presented that intimidation was not used in the robbery; therefore, defendant was not entitled to a charge on theft by taking as a lesser included offense of armed robbery and robbery by intimidation. Espinoza v. State, 243 Ga. App. 665, 534 S.E.2d 127 (2000).
Theft by taking not lesser included offense of robbery.
- Defendant was not entitled to an instruction regarding theft by taking under O.C.G.A. § 16-8-2 as a lesser included offense of robbery under O.C.G.A. § 16-8-40(a)(1), (2) or as a sole defense, because there was no evidence to support either instruction, where defendant admitted to removing the victim's purse by force, which constituted robbery, allegedly as payment for drugs that defendant had given to the victim. Miller v. State, 259 Ga. App. 244, 576 S.E.2d 631 (2003).
Manner of taking property is irrelevant.
- It was not error for a charge based on the provisions of former Code 1933, § 26-1802 (see now O.C.G.A. § 16-8-2) to fail to define "unlawful taking" or the manner in which the property was taken, because the statute does not define "unlawful taking" and makes the manner of taking irrelevant. Clark v. State, 138 Ga. App. 266, 226 S.E.2d 89 (1976).
Gravamen of the offense is the taking of the property of another against the will of such other, regardless of whether the property is taken or appropriated and the manner of the taking or the appropriation. Clark v. State, 138 Ga. App. 266, 226 S.E.2d 89 (1976).
Knowledge that person from whom car was borrowed was guilty of theft by taking and conversion was sufficient to support conviction for receiving stolen property.
- Because the defendant, who was loaned a car by the lender in exchange for crack cocaine, knew that the lender did automobile body work for others and the car was clearly undergoing body work, sufficient evidence supported the receiving stolen property conviction under O.C.G.A. § 16-8-7(a); a jury could have found that the defendant knew or should have known that the lender had no authority to loan the car and that the lender had converted the car to the lender's own use by renting the car to the defendant in violation of O.C.G.A. § 16-8-4(a), prohibiting theft by conversion, and O.C.G.A. § 16-8-2, prohibiting theft by taking. McKinney v. State, 276 Ga. App. 75, 622 S.E.2d 427 (2005).
State is obliged to prove its case under a conversion theory when such is set out in the indictment. Cutter v. State, 168 Ga. App. 651, 310 S.E.2d 16 (1983).
Proof of description, value, and ownership of stolen property is important for conviction of theft by taking; and proof of the specific place within the county where the theft occurred has never been necessary for conviction. State v. Ramos, 145 Ga. App. 301, 243 S.E.2d 693 (1978).
Ownership may be in real owner or person in possession.
- It is well settled that ownership of stolen property may be laid either in the real owner or in the person in whose possession the property was at the time of the theft. McKee v. State, 200 Ga. 563, 37 S.E.2d 700 (1946) (decided under former Code 1933, § 26-2603).
Ostensible ownership is enough to justify description. Earley v. State, 155 Ga. App. 576, 271 S.E.2d 709 (1980).
Thief cannot question title of apparent owner. Hall v. State, 132 Ga. App. 612, 208 S.E.2d 621 (1974); Earley v. State, 155 Ga. App. 576, 271 S.E.2d 709 (1980).
Ownership of personal property may be in bailee.
- Ownership of personal property, in an indictment for larceny, may be laid in a bailee having possession of the property when it was stolen, though the bailment was gratuitous. A like description of ownership of personal property mentioned in an indictment for burglary is sufficient. Hall v. State, 132 Ga. App. 612, 208 S.E.2d 621 (1974).
Person cannot commit theft of property of his or her spouse. Calloway v. State, 176 Ga. App. 674, 337 S.E.2d 397 (1985).
Decline in value of stock not a theft.
- Taxpayers' complaint for a refund was dismissed, as they were not entitled to a theft loss deduction under 26 U.S.C. § 165(e) with respect to a decline in value of publicly traded stock after the taxpayer husband exercised his stock options because they did not show that they were victims of either a theft by taking, theft by deception, theft by conversion, or theft of services under O.C.G.A. § 16-8-2, O.C.G.A. § 16-8-3, O.C.G.A. § 16-8-4, or O.C.G.A. § 16-8-5. The taxpayers were only entitled to capital loss deductions under 26 U.S.C. § 2511. Schroerlucke v. United States, 100 Fed. Cl. 584 (Fed. Cl. 2011).
Property taken must have value.
- When the evidence authorizes a finding that the stolen property is of some value it will authorize a conviction of theft by taking and sentencing as for a misdemeanor under former Code 1933, §§ 26-1802 and 26-1812 (see now O.C.G.A. §§ 16-8-2 and16-8-12). Stancell v. State, 146 Ga. App. 773, 247 S.E.2d 587 (1978).
It must appear that stolen property was of some value or a conviction for theft by taking cannot be sustained. Bryan v. State, 148 Ga. App. 428, 251 S.E.2d 338 (1978); Hammett v. State, 246 Ga. App. 287, 539 S.E.2d 193 (2000).
Evidence of value of property taken.
- Owner of property may not testify as to the owner's opinion of the value of the property taken without giving the owner's reasons therefor, and an opinion as to value based solely on cost price is inadmissible in evidence as it has no probative value. Dotson v. State, 144 Ga. App. 113, 240 S.E.2d 238 (1977).
Rule that cost price is not probative evidence of market value is ameliorated by the allowance of proof of price at purchase as a circumstance from which value may be inferred. Ragsdale v. State, 170 Ga. App. 448, 317 S.E.2d 288 (1984).
Same rules apply to the ascertainment of value of personalty whether that personalty is the subject of a negligence case or the object of a theft in a criminal case; value is value in whichever context. Ragsdale v. State, 170 Ga. App. 448, 317 S.E.2d 288 (1984).
When in a trial for theft of two televisions sets by taking, in response to questioning concerning the prices of the subject television sets, defendant testified that one set cost "four-ninety something or five-ninety something" and the other "about three-something," this evidence sufficiently showed the value of the property taken to be in excess of $500. Hall v. State, 181 Ga. App. 697, 353 S.E.2d 614 (1987).
It was held that there was sufficient evidence, which, when coupled with the jury's awareness of the value of such everyday objects as video cassette recorders, authorized a jury determination that the value of the video cassette recorder stolen was greater than $100. Franklin v. State, 184 Ga. App. 396, 361 S.E.2d 700 (1987).
Trial court did not err in concluding that the victim's testimony was sufficient to allow a felony theft charge to go to the jury because the victim testified as to the market value for each of the items stolen from the victim, and the total value exceeded $500; the victim established that the victim had an opportunity to form a correct opinion because the victim based the opinion as to the market value of the stolen tools on the age of the tools and the victim's experience using and purchasing the tools. Sheppard v. State, 300 Ga. App. 631, 686 S.E.2d 295 (2009).
Trial court did not err in assessing the value of a six car hauling trailer at $13,000 because an expert testified that based on the expert's experience, the fair market value of the trailer would be between $13,000 and $15,000, and the evidence showed that there was a basis for that value; evidence of the expert's experience in the equipment valuation field provided evidence of an obvious opportunity to gain familiarity with equipment values, creating at least a minimal basis for that value evidence. Rushing v. State, 305 Ga. App. 629, 700 S.E.2d 620 (2010).
Retail value or price is standard to be used in theft by taking cases from retail establishments and where once established the wholesale price is not relevant. Brown v. State, 143 Ga. App. 678, 239 S.E.2d 556 (1977).
State failed to show value of jewelry exceeded $500.
- State failed to establish that the value of stolen jewelry exceeded $500 as required for felony theft by taking. There was evidence that the rings were part of an entire lot of jewelry - including necklaces, bracelets, rings, and pendants - that the victim had previously purchased from the pawn shop for $10,000. The only evidence related to the specific items taken by the defendant showed that the defendant pawned nine rings for $275. Schneider v. State, 312 Ga. App. 504, 718 S.E.2d 833 (2011).
Misdemeanor offenses.
- Indictment charging two counts of theft by taking, each involving less than $500, charged offenses with maximum punishments of less than 12 months, i.e., misdemeanor offenses within the jurisdiction of the state court. Royster v. State, 226 Ga. App. 737, 487 S.E.2d 491 (1997).
Broad language of section is no impediment to indictment.
- Former Code 1933, § 26-1802 (see now O.C.G.A. § 16-8-2) was sufficiently broad to encompass thefts or larcenies perpetrated by deception as prohibited under former Code 1933, § 26-1803 (see now O.C.G.A. § 16-8-3), and possibly broad enough to encompass other types of theft prohibited by other sections of the Criminal Code. Stull v. State, 230 Ga. 99, 196 S.E.2d 7 (1973).
While the language embodied in the clause, "regardless of the manner in which said property is taken or appropriated," rendered former Code 1933, § 26-1802 (see now O.C.G.A. § 16-8-2) sufficiently broad to encompass thefts or larcenies perpetrated by deception or prohibited under former Code 1933, § 26-1803 (see now O.C.G.A. § 16-8-3), and possibly broad enough to encompass other types of theft prohibited by other sections of the Criminal Code of Georgia, this was no impediment to an indictment thereunder. Flinchum v. State, 141 Ga. App. 59, 232 S.E.2d 396 (1977).
Phrase "regardless of the manner in which the property is taken or appropriated" renders O.C.G.A. § 16-8-2 sufficiently broad to encompass thefts or larcenies perpetrated by deception and theft by conversion. Cole v. State, 186 Ga. App. 243, 366 S.E.2d 844 (1988); Byrd v. State, 186 Ga. App. 446, 367 S.E.2d 300 (1988); Elder v. State, 230 Ga. App. 122, 495 S.E.2d 596 (1998).
Since theft by taking encompasses theft by conversion, O.C.G.A. § 16-8-12(a)(1) authorizes the imposition of like punishment upon conviction for either offense, misdesignation constitutes only a clerical error, which may be corrected by the court at any time on its own initiative. Bartel v. State, 202 Ga. App. 458, 414 S.E.2d 689, cert. denied, 202 Ga. App. 906, 414 S.E.2d 689 (1992).
Sufficiency of indictment.
- In a prosecution for theft by taking, the indictment was defective for failing to identify the date or dates of the offense and for failing to specifically identify the amount taken; it was not necessary for the indictment to specifically identify the form of the currency taken. State v. Stamey, 211 Ga. App. 837, 440 S.E.2d 725 (1994).
Indictment sufficient.
- Trial court properly denied defendant's demurrer and plea in abatement filed on the basis that the state failed to name a specific victim in the indictment charging defendant for theft by taking as the indictment alleged all of the elements of the crime and the items taken and did not prevent defendant from knowing what actions defendant was to defend against nor did the indictment subject defendant to the possibility of a subsequent prosecution with regard to the same act. Further, defendant submitted an affidavit describing the time of the alleged incident, which indicated that defendant was clearly aware of what actions defendant had to defend against, therefore, defendant was in no way prejudiced by the state's omission of the name of the owner of the articles alleged to have been taken. Brandeburg v. State, 292 Ga. App. 191, 663 S.E.2d 844 (2008), cert. denied, No. S08C1796, 2008 Ga. LEXIS 921 (Ga. 2008).
Indictments charging two attorneys with theft by taking in connection with a client's property transfers were sufficient in that they tracked the statutory language, placed defendants on notice of the charges against the defendants, and sufficiently alleged a statute of limitations exception. Rader v. State, 300 Ga. App. 411, 685 S.E.2d 405 (2009).
Accusation that alleged that the defendant took "drugs the property of Dr. Bob Lanier having a value of less than $500 with the intention of depriving said owner of said property" was sufficient to allege theft by taking under O.C.G.A. § 16-8-2. State v. Meeks, 309 Ga. App. 855, 711 S.E.2d 403 (2011).
Indictment conjunctively alleging two violations sufficient.
- Indictment which conjunctively alleged violations of O.C.G.A. §§ 16-8-2 and16-8-12 (breach of fiduciary duties by government employee) sufficiently advised defendant of both charges. Wages v. State, 165 Ga. App. 587, 302 S.E.2d 112 (1983).
Description of stolen property at trial may be more minute than description in indictment. Burkett v. State, 133 Ga. App. 728, 212 S.E.2d 870 (1975).
On the trial of a defendant charged with the offense of larceny, where there is some evidence descriptive of the stolen property which is substantially conformable to the description alleged in the indictment, and nowhere contradictory thereof, the identity of the stolen property is a matter addressed peculiarly and solely to the jury, and in such case there is no fatal variance between the allegata and the probata. Burkett v. State, 133 Ga. App. 728, 212 S.E.2d 870 (1975).
In order to sustain a conviction of larceny, the evidence must make out the description of the stolen property as laid in the indictment or accusation, although such description may have been unnecessarily minute. Burkett v. State, 133 Ga. App. 728, 212 S.E.2d 870 (1975).
"Fatal variance" rule does not apply where stolen property is identified as being same as that described in indictment. Burkett v. State, 133 Ga. App. 728, 212 S.E.2d 870 (1975).
When the indictment alleged an unlawful taking of a vehicle and the evidence at trial established that the defendant had unlawfully appropriated the vehicle after first obtaining lawful possession of it, there was no fatal variance between the allegata and the probata since either act constituted theft by taking. Bell v. State, 220 Ga. App. 293, 469 S.E.2d 714 (1996).
Vehicle title inaccuracies in indictment.
- Trial court properly denied defendant's motion for acquittal, made on the ground that the state failed to prove ownership of the stolen vehicles given certain inaccuracies as to title in the indictment, since these variances neither misinformed the accused of the charges against the accused nor left the accused subject to subsequent prosecutions for the same offense. Holbrook v. State, 209 Ga. App. 301, 433 S.E.2d 616 (1993).
There is no inconsistency in indictments which charge theft by having possession of county money and withdrawing such money by check for an illegal purpose. DeFoor v. State, 233 Ga. 190, 210 S.E.2d 707 (1974).
Severance when theft and robberies not connected by "common scheme or plan."
- Even though all the crimes were alleged to have been perpetrated by members of the same family, a sister acting individually as to the theft by taking and jointly with her brother as to armed robberies, severance was warranted since the three crimes were not part of a common scheme or plan and there was no viable "common scheme or plan" connecting the theft by taking with the armed robberies. Hayes v. State, 182 Ga. App. 26, 354 S.E.2d 655 (1987).
Uniform Commercial Code definition of "negotiable instrument" did not apply as an additional element in a prosecution for criminal attempt to commit the crime of theft by taking. Thogerson v. State, 224 Ga. App. 76, 479 S.E.2d 463 (1996).
Predicate acts for purposes of RICO prosecution.
- Trial court erred in failing to grant defendant's demurrer to ten predicate acts of racketeering activity involving the filing of false deeds because the deed transactions were part of 14 theft by taking transactions and therefore could not form the basis of separate predicate acts. Adams v. State, 231 Ga. App. 279, 499 S.E.2d 105 (1998).
Jurisdiction under 28 U.S.C. § 1331 did not exist in a borrower's suit asserting various claims against a lender and an appraiser in connection with a loan that encumbered the borrower's property with a debt that exceeded the property's value. Athough the borrower alleged that the lender violated 18 U.S.C. §§ 1341, 1343 as predicate acts under O.C.G.A. § 16-14-3 of Georgia's Racketeer Influenced and Corrupt Organizations (RICO) Act, O.C.G.A. § 16-14-1 et seq., that did not require the court to interpret the federal statutes; further, the borrower also asserted that the lender violated state statutes that could serve as predicate acts under Georgia's RICO law. Austin v. Ameriquest Mortg. Co., 510 F. Supp. 2d 1218 (N.D. Ga. Feb. 27, 2007).
Identification of thief.
- Although the victim was unable to identify the defendant in court as the person who robbed the victim at gunpoint, due to the defendant's changed appearance, the victim positively identified the defendant from a photo lineup both immediately after the robbery and at trial; therefore, the evidence had been sufficient to convict the defendant of theft by taking a motor vehicle. Garcia v. State, 271 Ga. App. 794, 611 S.E.2d 92 (2005), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Statute of frauds.
- Defendant was properly convicted of felony theft by taking in violation of O.C.G.A. § 16-8-2 for failing to transmit to a law firm, payments the defendant received for indigent defense work because the statute of frauds, O.C.G.A. § 13-5-30(5), was not implicated; the firm performed the firm's part of the parties' agreement in paying the defendant a salary, providing rent-free office space, and offering administrative support, among other things. Clarke v. State, 317 Ga. App. 471, 731 S.E.2d 100 (2012).
Conduct was criminal conversion under insurance policy.
- Trial court erred in granting an insurer's motion for summary judgment in an insured's action alleging breach of contract and bad faith due to the insurer's decision to deny an insurance claim for the purported loss of a vehicle by theft because there was evidence from which a jury could find that the insured's loss was covered by the theft provisions of the policy; there was evidence from which a jury could find the fraudulent intent required to commit theft by conversion in violation of O.C.G.A. § 16-8-4. Byrd v. United Servs. Auto. Ass'n, 317 Ga. App. 280, 729 S.E.2d 522 (2012).
Sufficiency of allegations.
- Allegations under the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., against a mortgage loan servicer were sufficient to state a claim of theft by taking, deception, and conversion because despite being told that the mortgage loan was fraudulent, the servicer kept the borrowers' money and continuously threatened the borrower's with foreclosure. Kerfoot v. FNF Servicing, Inc., F. Supp. 2d (M.D. Ga. Oct. 25, 2013).
Cited in King v. State, 127 Ga. App. 83, 192 S.E.2d 392 (1972); Baker v. State, 127 Ga. App. 99, 192 S.E.2d 558 (1972); Barrett v. State, 129 Ga. App. 72, 199 S.E.2d 116 (1973); Wade v. State, 129 Ga. App. 571, 200 S.E.2d 370 (1973); Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973); Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974); Maddox v. State, 131 Ga. App. 86, 205 S.E.2d 31 (1974); A.C.G. v. State, 131 Ga. App. 156, 205 S.E.2d 435 (1974); Welborn v. State, 132 Ga. App. 207, 207 S.E.2d 688 (1974); McCrary v. Ricketts, 232 Ga. 890, 209 S.E.2d 148 (1974); Godwin v. State, 133 Ga. App. 397, 211 S.E.2d 7 (1974); Rhodes v. State, 233 Ga. 899, 213 S.E.2d 870 (1975); Breland v. State, 135 Ga. App. 478, 218 S.E.2d 153 (1975); Rhodes v. State, 135 Ga. App. 484, 218 S.E.2d 159 (1975); Justice v. State, 135 Ga. App. 902, 219 S.E.2d 592 (1975); Roberts v. State, 137 Ga. App. 208, 223 S.E.2d 208 (1976); Jones v. State, 137 Ga. App. 612, 224 S.E.2d 473 (1976); Gasaway v. State, 137 Ga. App. 653, 224 S.E.2d 772 (1976); Chandler v. State, 138 Ga. App. 128, 225 S.E.2d 726 (1976); Billings v. State, 139 Ga. App. 95, 227 S.E.2d 892 (1976); Jones v. State, 139 Ga. App. 366, 228 S.E.2d 387 (1976); Causey v. State, 139 Ga. App. 499, 229 S.E.2d 1 (1976); First Nat'l Bank & Trust Co. v. State, 141 Ga. App. 471, 233 S.E.2d 861 (1977); Bennett v. State, 141 Ga. App. 795, 234 S.E.2d 327 (1977); Malone v. State, 142 Ga. App. 47, 234 S.E.2d 844 (1977); Bramblett v. State, 239 Ga. 336, 236 S.E.2d 580 (1977); Andrews v. State, 143 Ga. App. 791, 240 S.E.2d 142 (1977); Walker v. State, 146 Ga. App. 237, 246 S.E.2d 206 (1978); Herrington v. State, 149 Ga. App. 130, 253 S.E.2d 810 (1979); Dyer v. State, 150 Ga. App. 760, 258 S.E.2d 620 (1979); Miller v. Roses' Stores, Inc., 151 Ga. App. 158, 259 S.E.2d 162 (1979); Perkins v. State, 151 Ga. App. 199, 259 S.E.2d 193 (1979); Maddox v. State, 152 Ga. App. 384, 262 S.E.2d 636 (1979); Grizzle v. State, 155 Ga. App. 91, 270 S.E.2d 311 (1980); Carnes v. Crawford, 246 Ga. 677, 272 S.E.2d 690 (1980); Bembry v. State, 155 Ga. App. 847, 273 S.E.2d 208 (1980); Change v. State, 156 Ga. App. 316, 274 S.E.2d 711 (1980); Tisdol v. State, 158 Ga. App. 852, 282 S.E.2d 411 (1981); Slack v. State, 159 Ga. App. 185, 283 S.E.2d 64 (1981); Maxey v. State, 159 Ga. App. 503, 284 S.E.2d 23 (1981); Jones v. State, 159 Ga. App. 845, 285 S.E.2d 584 (1981); Kraus v. State, 161 Ga. App. 739, 289 S.E.2d 555 (1982); Brown v. State, 162 Ga. App. 75, 290 S.E.2d 174 (1982); Moyer v. State, 164 Ga. App. 629, 298 S.E.2d 308 (1982); Moore v. State, 167 Ga. App. 207, 300 S.E.2d 543 (1983); Lovett v. State, 165 Ga. App. 379, 301 S.E.2d 303 (1983); Bailey v. State, 169 Ga. App. 802, 315 S.E.2d 297 (1984); Weaver v. State, 169 Ga. App. 890, 315 S.E.2d 467 (1984); Pelligrini v. State, 174 Ga. App. 84, 329 S.E.2d 186 (1985); Hambrick v. State, 174 Ga. App. 444, 330 S.E.2d 383 (1985); Miller v. State, 174 Ga. App. 703, 331 S.E.2d 616 (1985); Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987); Henderson v. State, 257 Ga. 618, 362 S.E.2d 346 (1987); Abelman v. State, 185 Ga. App. 278, 363 S.E.2d 764 (1987); Williams v. State, 187 Ga. App. 859, 371 S.E.2d 673 (1988); King v. State, 195 Ga. App. 353, 393 S.E.2d 709 (1990); Tenney v. State, 194 Ga. App. 820, 392 S.E.2d 294 (1990); Radford v. State, 202 Ga. App. 532, 415 S.E.2d 34 (1992); Groom v. State, 212 Ga. App. 133, 441 S.E.2d 259 (1994); State v. Schuman, 212 Ga. App. 231, 441 S.E.2d 466 (1994); Randall v. State, 234 Ga. App. 704, 507 S.E.2d 511 (1998); Pruitt v. State, 245 Ga. App. 801, 538 S.E.2d 874 (2000); Urness v. State, 251 Ga. App. 401, 554 S.E.2d 546 (2001); Merritt v. State, 254 Ga. App. 788, 564 S.E.2d 3 (2002); Atkinson v. State, 263 Ga. App. 274, 587 S.E.2d 332 (2003); Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007); Tiller v. State, 286 Ga. App. 230, 648 S.E.2d 738 (2007); Great Am. Ins. Co. v. Davis (In re Davis), Bankr. (Bankr. N.D. Ga. Sept. 20, 2007); Am. Southern Ins. Group, Inc. v. Goldstein, 291 Ga. App. 1, 660 S.E.2d 810 (2008); Barron v. State, 291 Ga. App. 494, 662 S.E.2d 285 (2008); Johnson v. State, 293 Ga. App. 32, 666 S.E.2d 452 (2008); State v. Fisher, 293 Ga. App. 228, 666 S.E.2d 594 (2008); State v. Campbell, 295 Ga. App. 856, 673 S.E.2d 336 (2009); Brashier v. State, 299 Ga. App. 107, 681 S.E.2d 750 (2009); Cox v. Mayan Lagoon Estates Ltd., 319 Ga. App. 101, 734 S.E.2d 883 (2012); Davis v. State, 319 Ga. App. 501, 736 S.E.2d 160 (2012); State v. Bachan, 321 Ga. App. 712, 742 S.E.2d 526 (2013); In the Interest of S. M., 322 Ga. App. 678, 745 S.E.2d 863 (2013); Davis v. State, 322 Ga. App. 826, 747 S.E.2d 19 (2013); Pruitt v. State, 323 Ga. App. 689, 747 S.E.2d 694 (2013), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020); In the Interest of D.C., 324 Ga. App. 95, 748 S.E.2d 514 (2013); Lucas v. State, 328 Ga. App. 741, 760 S.E.2d 257 (2014); McGil v. State, 339 Ga. App. 130, 793 S.E.2d 442 (2016).
Intent
Former Code 1933, § 26-1802 (see now O.C.G.A. § 16-8-2) required only proof of intent to deprive permanently, as opposed to an intent to deprive temporarily, at the time of the wrongful taking; and the accused's original intent was not rendered void when the accused later had a change of heart. Martin v. State, 143 Ga. App. 875, 240 S.E.2d 231 (1977).
Once criminal intent at the time of taking was proved, it became irrelevant whether the deprivation, as defined in former Code 1933, § 26-1801(a) (see now O.C.G.A. § 16-8-1(1)), was permanent or temporary. Martin v. State, 143 Ga. App. 875, 240 S.E.2d 231 (1977).
Intent to only temporarily deprive owner of goods constitutes theft.
- Regardless of whether a defendant intended to take property and withhold it permanently, defendant's intent to take it for defendant's own temporary use without the owner's authorization evinces an intent to commit a theft. Smith v. State, 172 Ga. App. 356, 323 S.E.2d 257 (1984).
When larceny is charged and taking is shown, jury must necessarily be exclusive judges of intention which actuated the accused in the asportation. Though the circumstances evidencing the amimun furandi are weak, a reviewing court cannot hold them to be legally insufficient to sustain a finding that the accused's intent was to steal. Hawkins v. State, 130 Ga. App. 277, 202 S.E.2d 837 (1973).
Intent is material element.
- Guilt of the accused depends upon the intent with which the act was committed, and intent is a material ingredient of the crime. Scott v. State, 46 Ga. App. 213, 167 S.E. 210 (1932) (decided under former Penal Code 1910, §§ 172, 174).
Evidence of fraudulent intent.
- Jury was authorized to infer that the defendant acted with fraudulent intent and to find the defendant guilty of theft by taking because shortly after the defendant received checks for the purpose of starting construction of the victims' modular homes, the defendant abandoned the respective projects without accomplishing any task towards completion of the modular homes; the defendant failed to pay the requisite deposits to obtain the engineering plans for the modular homes. Bearden v. State, 316 Ga. App. 721, 728 S.E.2d 874 (2012).
Intent not shown when defendant without knowledge and mere passenger.
- Evidence was insufficient to support a juvenile's theft by taking motor vehicle conviction under O.C.G.A. § 16-8-2 as the juvenile was only a passenger in a truck belonging to the father of the juvenile's friend and did not know that the friend did not have permission to drive the truck. In re J. B. M., 294 Ga. App. 545, 669 S.E.2d 523 (2008).
Intent was a jury question.
- Trial court did not err in denying the defendant's motion for an acquittal as the question of whether or not the defendant had the requisite intent to steal was for the jury to decide. Dudley v. State, 287 Ga. App. 794, 652 S.E.2d 840 (2007), cert. denied, No. S08C0319, 2008 Ga. LEXIS 168 (Ga. 2008).
Evidence regarding intent created a question for the jury.
- Defendant was charged with theft by taking after the defendant sped off with money an informant had given the defendant for cocaine, and the trial court properly denied the defendant's motion for a directed verdict on the ground that there could be no intent to steal contraband. The defendant could not question the informant's title to the money; in light of the testimony, including the defendant's admission that the defendant owed a second person money for the second person's role in the robbery, the defendant's intent to steal the money was a question for the jury. Dudley v. State, 287 Ga. App. 794, 652 S.E.2d 840 (2007), cert. denied, No. S08C0319, 2008 Ga. LEXIS 168 (Ga. 2008).
Intent to deprive temporarily is not larceny.
- When the intention is only to deprive temporarily the owner of the use of the property it may be some other crime, but not larceny. Austin v. State, 65 Ga. App. 733, 16 S.E.2d 497 (1941) (decided under former Code 1933, § 26-2603).
Intent not shown.
- Taxpayers were not entitled to a theft loss under 26 U.S.C. § 165(e) with respect to a decline in value of publicly traded stock, as a theft by taking did not occur under O.C.G.A. § 16-8-2 because a corporation did not unlawfully take or appropriate any property from the taxpayer, and there was no evidence of any intention by the corporation or its executives to deprive the taxpery of the property at issue. Although corporate stock, which was in the taxpayer's control after he exercised his stock options, subsequently declined in value, there was no evidence that the corporate executives had any specific intent with regard to the taxpayer to take or appropriate his stock by devaluation or by any other means; rather, the goal of the corporation, including its later-convicted executives, was to increase the value of the stock, including any stock owned and controlled by the taxpayer. Schroerlucke v. United States, 100 Fed. Cl. 584 (Fed. Cl. 2011).
Larceny
Taking against will of owner is essence of crime of larceny. Kent v. State, 66 Ga. App. 147, 17 S.E.2d 301 (1941) (decided under former Code 1933, § 26-2603).
To constitute larceny taking must be done without using intimidation, or open force and violence. Shehany v. Lowry, 170 Ga. 70, 152 S.E. 114 (1930) (decided under former Penal Code 1910, §§ 172 and 174).
If intimidation, force, and violence be used in committing the theft, the offense is robbery. Shehany v. Lowry, 170 Ga. 70, 152 S.E. 114 (1930) (decided under former Penal Code 1910, §§ 172 and 174).
Taking need not be directly from one's person.
- To constitute robbery or larceny, it is unnecessary that the taking of the property should be directly from one's person, but it is sufficient if it be taken while in the person's possession and immediate presence. Banks v. State, 74 Ga. App. 449, 40 S.E.2d 103 (1946) (decided under former Code 1933, § 26-2603).
Asportation and intent to steal.
- Slightest change of location from where the goods are left by the owner was sufficient proof of asportation and, when coupled with the intent to steal, the crime of larceny was completed. Brown v. State, 135 Ga. App. 323, 217 S.E.2d 500 (1975).
Larceny is completed when there is asportation, however slight, although the goods are not removed from the land of the owner. Hawkins v. State, 130 Ga. App. 277, 202 S.E.2d 837 (1973).
Any unlawful asportation, however slight (15 feet in this case), is sufficient to show the "taking" element. It is not necessary that property be removed from the premises of the owner. Craighead v. State, 126 Ga. App. 300, 190 S.E.2d 606 (1972).
Prima-facie case.
- By proving the corpus delicti, the venue, and the recent possession of the stolen property, and its sale by the defendant, the state makes a prima-facie case. Whether the defendant's explanation of possession of the property was consistent with defendant's innocence and satisfactory to the jury was a matter exclusively for them. Howard v. State, 58 Ga. App. 391, 198 S.E. 548 (1938) (decided under former Code 1933, § 26-2603).
Elements of larceny may be established by circumstantial evidence. Yawn v. State, 94 Ga. App. 400, 94 S.E.2d 769 (1956) (decided under former Code 1933, § 26-2603).
Taking goods in cash sale without paying cash is larceny.
- If personal property is voluntarily placed in the hands of a person upon the condition that there should be returned to the owner at once its value in money (a cash sale), neither title nor right of possession passes and becomes complete until this condition is complied with; thus, if a sale be for cash, the taking of the goods without paying cash is larceny, otherwise if there be credit. Thomas v. State, 62 Ga. App. 725, 9 S.E.2d 854 (1940) (decided under former Code 1933, § 26-2603).
Mere borrowing without fraudulent intent is not larceny.
- Taking goods, not with the intention of depriving the owner of the owner's property in the goods, but with the object of temporarily using the goods and then returning the goods, is not larceny since the mere borrowing, without fraudulent intent, is not larceny. Austin v. State, 65 Ga. App. 733, 16 S.E.2d 497 (1941) (decided under former Code 1933, § 26-2603).
State to show taking without owner's consent.
- While it is true that where larceny is charged and a taking is shown, the jury must necessarily be the exclusive judges of the intention which actuated the accused in the asportation, it is still incumbent on the state to show that the taking was without the consent of the owner. Felder v. State, 60 Ga. App. 643, 4 S.E.2d 716 (1939) (decided under former Code 1933, § 26-2603).
Descriptions of personal chattels.
- When, as in larceny, personal chattels are the subject of an offense, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods stated. Kyler v. State, 94 Ga. App. 321, 94 S.E.2d 429 (1956) (decided under former Code 1933, § 26-2603).
Object of the description of stolen chattels is to individualize the transaction, and enable the court to see that the chattels are, in law, the subjects of larceny. The description should be simply such as in connection with the other allegations, will affirmatively show the defendant to be guilty, will reasonably inform the defendant of the instance meant, and put the defendant in a position to make the needful preparations to meet the charge. Kyler v. State, 94 Ga. App. 321, 94 S.E.2d 429 (1956) (decided under former Code 1933, § 26-2603).
There must be such certainty in description of stolen chattels as will enable the jury to say whether the chattel proved to be stolen is the same as that upon which the indictment is founded. Kyler v. State, 94 Ga. App. 321, 94 S.E.2d 429 (1956) (decided under former Code 1933, § 26-2603).
Articles must be identified as those alleged to have been stolen.
- While it is necessary for conviction in a larceny case, where the state relies upon recent possession of the stolen goods, that the articles found in the possession of the accused be identified as those alleged to have been stolen, such identity can be established by the testimony of the owner of the goods that the articles found in the possession of the accused, where they have no "earmarks" to identify them, are of the same brand and character as the stolen goods, and that, from their brand, character, and appearance, the owner believes them to be the property stolen from the owner. This is especially true where many different articles of various kinds, brands and sizes were stolen, and articles similar in make, brand, character, and appearance to the stolen ones were found in the recent possession of the accused. Yawn v. State, 94 Ga. App. 400, 94 S.E.2d 769 (1956) (decided under former Code 1933, § 26-2603).
Value of items not an element of offense required to be stated in indictment.
- Although an indictment for theft by taking under O.C.G.A. § 16-8-2 did not allege the value of stolen car parts defendant was caught removing from a business, the value was not an element of the offense. Because a jury found the parts were worth more than $100, the crime was punishable as a felony under O.C.G.A. § 16-8-12(a)(5)(A). Roman v. State, 300 Ga. App. 526, 685 S.E.2d 775 (2009), cert. denied, No. S10C0386, 2010 Ga. LEXIS 306 (Ga. 2010).
Decedent's property is property of administrator.
- Even when there is no will, the property of a deceased person is not derelict; but is regarded in law as the property of the administrator subsequently appointed, by relation from the time of the death, so that taking the property by anyone, animo furandi, is larceny. Lawson v. State, 68 Ga. App. 830, 24 S.E.2d 326 (1943) (decided under former Code 1933, § 26-2603), overruled on other grounds, McKee v. State, 73 Ga. App. 815, 38 S.E.2d 184 (1946).
Embezzlement
Contents of indictment.
- Indictment for embezzlement should state amount of money and its value, and should describe any other property. The rule for determining the sufficiency of the description of the property (other than money) embezzled is that the description in the indictment, in connection with the other allegations thereof, shall make it affirmatively appear to the defendant what particular instance is meant, and thus enable defendant to make the necessary preparation to meet the charge at the trial, and to plead the judgment in bar to any subsequent prosecution for the same offense. Bivins v. State, 47 Ga. App. 391, 170 S.E. 513 (1933) (decided under former Ga. L. 1919, p. 135, § 20).
Goods on consignment.
- When the defendants were consignees of gasoline belonging to the victim and as such were in lawful possession of property belonging to the victim but sold large quantities of the gasoline without accounting to the victim either for its disposition or for the victim's share of the proceeds from its sale, the evidence was sufficient to support a conviction of theft. Ketcham v. State, 181 Ga. App. 868, 354 S.E.2d 171 (1987).
Continuous conversions constitute single embezzlement.
- When there is a continuous series of conversions of property of the owner entrusted to the defendant, the offense may be charged in a single count of the indictment since such series of transactions constitute but a single embezzlement. Simmons v. State, 79 Ga. App. 390, 53 S.E.2d 772 (1949) (decided under former Code 1933, § 26-2603).
Element of conversion of property before owner obtains possession is always essential element in embezzlement. Simmons v. State, 79 Ga. App. 390, 53 S.E.2d 772 (1949) (decided under former Code 1933, § 26-2603).
Embezzlement differs from larceny in that in embezzlement accused comes into possession lawfully, whereas in larceny the property comes into the hands of the thief secretly and unlawfully. In the former there is an entrustment and in the latter there is not. Simmons v. State, 79 Ga. App. 390, 53 S.E.2d 772 (1949) (decided under former Code 1933, § 26-2603).
Sufficient evidence supporting theft by taking by embezzlement by a fiduciary who was a city employee from the city included direct and circumstantial evidence of the employee's spouse's bankruptcy, deposits to their personal account in excess of their earned income, losses stopping after the employee resigned, and excluding other employees' culpability; the evidence was sufficient in spite of the employee's defenses which included that the city: (1) did not lose the money but had poor accounting procedures; (2) had four other persons that had access to the safe and that could have taken the money; and (3) blamed the employee because the city's insurance policy did not cover non-theft-related losses, and that they had outside receipts or gifts to explain deposits greater than city salary income deposited to their account. Stack-Thorpe v. State, 270 Ga. App. 796, 608 S.E.2d 289 (2004).
Checks have the same value as the federal reserve notes the checks represent.
- Trial court was authorized to convict defendant of the offense of felony theft by taking as the employer's checks which were admittedly stolen and which when negotiated by defendant had the same value as the federal reserve notes which they represented; defendant obviously knew the checks represented cash because defendant deposited them and then withdrew the cash. Harper v. State, 259 Ga. App. 843, 578 S.E.2d 544 (2003).
Defendant was not entitled to directed verdict on charges of embezzling money representing traffic tickets and other fines from the city just because the defendant did not have exclusive access to the money; the defendant also had to show that the state had failed to present any evidence to exclude the possibility that someone else had taken the money. Stack-Thorpe v. State, 270 Ga. App. 796, 608 S.E.2d 289 (2004).
Included Crimes
Theft by taking as lesser included offense of robbery by sudden snatching.
- In a prosecution for robbery by sudden snatching, since there was evidence to support the defendant's written request to charge on the lesser included offense of theft by taking, the trial court's failure to give the requested charge was reversible error. King v. State, 214 Ga. App. 311, 447 S.E.2d 645 (1994).
Theft by taking was not lesser included offense of robbery by sudden snatching where the victim saw the defendant take her purse out of her grocery cart when it was no more than two feet away from her. Bryant v. State, 213 Ga. App. 301, 444 S.E.2d 391 (1994).
Armed robbery.
- In a trial for armed robbery under O.C.G.A. § 16-8-41, a charge on the lesser included offense of theft by taking under O.C.G.A. § 16-8-2 was not warranted under circumstances in which the defendant used force to take the victim's purse and then the victim's money; the fact that the purse was not in the victim's hands during the second taking did not preclude an armed robbery conviction. Thomas v. State, 290 Ga. App. 10, 658 S.E.2d 796 (2008).
Although armed robbery requires proof of the use of an offensive weapon and proof that the property was taken from the presence of a person, whereas theft by taking does not, theft by taking does not require proof of any facts separate from those required for armed robbery. Wells v. State, 294 Ga. App. 277, 668 S.E.2d 881 (2008).
Theft by receiving is not lesser included offense of theft by taking. These two crimes are so mutually exclusive that the thief and the receiver cannot even be accomplices. Sosbee v. State, 155 Ga. App. 196, 270 S.E.2d 367 (1980).
Trial court did not err in failing to give a requested jury instruction on a lesser offense of theft by receiving stolen property as theft by receiving stolen property is not a lesser included offense of armed robbery, theft by taking, or hijacking a motor vehicle. Mullins v. State, 267 Ga. App. 393, 599 S.E.2d 340 (2004).
Theft by receiving stolen property, O.C.G.A. § 16-8-7(a), was not a lesser included offense of theft by taking under O.C.G.A. § 16-8-2 because applying the required evidence test each crime required proof that the other did not; the former required a showing that the defendant knew or should have known that the gun the victim wanted to sell was stolen while the latter required that the defendant took the gun from the victim with intent to deprive the victim of the gun. Peoples v. State, 295 Ga. App. 731, 673 S.E.2d 82 (2009).
Theft by taking as included offense in theft by receiving.
- When the proof of a recent unexplained possession of stolen property was sufficient in itself to prove theft by taking but was only one element necessary to prove theft by receiving, theft by taking must be considered an included offense in theft by receiving. Callahan v. State, 148 Ga. App. 555, 251 S.E.2d 790 (1978).
Theft by deception.
- Trial court properly denied the defendant's motion for a directed verdict on the issue of whether the state proved an unlawful taking as the phrase in the theft by taking statute "regardless of the manner in which the property is taken or appropriated" was broad enough to encompass the theft by deception that the state proved defendant committed in regard to the agreement with the couple by which defendant was supposed to take their cash payments and build the couple a home, but which the defendant converted to the defendant's own use. McMahon v. State, 258 Ga. App. 512, 574 S.E.2d 548 (2002).
Defendants' convictions for theft by taking were affirmed because: (1) the trial court did not err in denying their general and special demurrers to the indictment as the indictment was not defective, or in admitting similar transaction evidence; and (2) the evidence was sufficient to show that the defendants committed theft by deception in deceiving lenders through flipping houses and obtaining false loan applications from investors in the houses. Bradford v. State, 266 Ga. App. 198, 596 S.E.2d 715 (2004).
Merger of theft by taking, conversion, and theft by deception.
- After the defendant was convicted on 52 counts related to the defendant's theft of more than $600,000 as the operator of a Ponzi scheme, although the trial court did not err in failing to merge the defendant's convictions for theft by conversion and theft by deception into the defendant's convictions for theft by taking, because theft by taking proscribed certain criminal conduct generally, while theft by conversion and theft by deception were specific crimes, the defendant's convictions for theft by taking merged into the defendant's convictions for theft by conversion and theft by deception; thus, the defendant's sentences for theft by taking were vacated, and the case was remanded to the trial court for resentencing. Mathis v. State, 343 Ga. App. 206, 807 S.E.2d 4 (2017), cert. dismissed, No. S18C0491, 2018 Ga. LEXIS 316 (Ga. 2018).
Money given to defendant by police for drug buy.
- Elements of theft by taking were met when the defendant fled with money that state law enforcement agents gave the defendant to effect a drug transaction. Stevens v. State, 213 Ga. App. 293, 444 S.E.2d 840 (1994).
Theft by taking is lesser included offense to burglary. Lockett v. State, 153 Ga. App. 569, 266 S.E.2d 236 (1980); Breland v. Smith, 247 Ga. 690, 279 S.E.2d 204 (1981).
Burglary and theft by taking did not merge.
- Defendant's burglary and theft by taking charges involving the same house were not based on the same facts; the burglary was complete when the defendant entered the dwelling house with the intent to commit theft, and the theft by taking occurred when the defendant actually took the property described in the indictment. Martin v. State, 285 Ga. App. 375, 646 S.E.2d 339 (2007).
Attempt to commit theft.
- Theft by taking may in some circumstances be a lesser included offense of burglary, but it does not follow that where a burglary was committed but nothing was actually taken, the attempt to commit theft by taking will be a lesser included offense which the defendant is entitled to have charged. Cannon v. State, 167 Ga. App. 225, 305 S.E.2d 910 (1983).
Theft by taking was not a lesser included offense of burglary where the defendant did not indicate that defendant believed the items in defendant's possession belonged to another nor did defendant admit to having the requisite intent to steal. McNeese v. State, 186 Ga. App. 410, 367 S.E.2d 235 (1988).
Theft as lesser included offense of robbery when wallet taken from extremely intoxicated victim.
- In a probation revocation case after the defendant removed a wallet from the pocket of an extremely intoxicated victim, the evidence did not support a showing that the defendant had committed the offense of robbery under O.C.G.A. § 16-8-40(a), only the lesser included offense of theft under O.C.G.A. § 16-8-2; even if the evidence showed robbery by sudden snatching, the victim was not aware of the taking before the crime was completed and there was no evidence of constructive force supplied by intimidation, threat, or other means. Franklin v. State, 286 Ga. App. 288, 648 S.E.2d 746 (2007).
When a defendant is indicted for robbery by force, it is not error to charge robbery by sudden snatching if the trial judge confines the elements of the crime to those charged in the indictment. Searcy v. State, 168 Ga. App. 233, 308 S.E.2d 621 (1983).
Theft by taking charge did not merge with an armed robbery charge because under O.C.G.A. § 16-8-2 theft by taking requires the intent to deprive the owner of property, while armed robbery is a completely separate offense, which under O.C.G.A. § 16-8-41 is complete once the property is taken. Miller v. State, 174 Ga. App. 42, 329 S.E.2d 252 (1985).
When the armed robbery involved the taking of currency at gunpoint from the immediate possession of a convenience store cashier who was attempting to make a nightly bank deposit, while the theft conviction involved the subsequent taking of the cashier's automobile, the evidence establishing the commission of the one crime is not the same as the evidence which established commission of the other crime, and defendant's contention that the theft conviction should have merged with the armed robbery conviction is without merit. Miller v. State, 183 Ga. App. 563, 359 S.E.2d 359 (1987).
Theft by taking convictions merged with armed robbery convictions.
- When the same evidence that was used to prove the armed robbery charges against the defendant was also used to prove the theft by taking charges and the property in question was taken from the victims' possession in the same incident in a store and constituted a single crime, the theft by taking offenses were lesser included offenses of the armed robbery offenses as a matter of fact pursuant to O.C.G.A. § 16-1-6(1) and should have merged into those convictions for sentencing purposes. Phanamixay v. State, 260 Ga. App. 177, 581 S.E.2d 286 (2003).
No merger with Securities Act violation.
- Defendant's convictions for theft by taking under O.C.G.A. § 16-8-2 and for violating the Georgia Securities Act of 1973, O.C.G.A. § 10-5-12 et seq., did not merge for sentencing purposes because the language of the statutes indicated that the crimes were separate offenses as a matter of law and because while theft required that the victim sustain a loss, a securities violation did not. Branan v. State, 285 Ga. App. 717, 647 S.E.2d 606 (2007).
Motor vehicle theft is not separate crime from general theft statute. Searcy v. State, 162 Ga. App. 695, 291 S.E.2d 557 (1982).
Theft by taking did not merge with entering an automobile.
- Because: (1) the defendant was properly sentenced for felony theft by taking as the defendant admitted to the accusation which valued the items taken at greater than $100; and (2) the offenses of theft by taking and entering an automobile with intent to commit theft did not merge for purposes of sentencing as each offense required the proof of different facts, the sentence imposed by the trial court was upheld. Neslein v. State, 288 Ga. App. 234, 653 S.E.2d 825 (2007).
O.C.G.A. § 15-11-63(a)(2)(E) does not require proof of a second or subsequent "adjudication" of delinquency to authorize the imposition of restrictive custody; rather, O.C.G.A. § 15-11-63(a)(2)(E) authorizes restrictive custody when a child is found to have committed a second or subsequent "violation" of O.C.G.A. §§ 16-8-2 though16-8-9, if the property which was the subject of the theft was a motor vehicle. In the Interest of L.J., 279 Ga. App. 237, 630 S.E.2d 771 (2006).
In a prosecution for felony theft by taking of a van, the trial court was entitled to conclude that the victim was an innocent purchaser for value, believing the seller to be the owner, the defendant's claim to the contrary notwithstanding; moreover, pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), the testimony of a single witness was sufficient to establish this fact. Coursey v. State, 281 Ga. App. 494, 636 S.E.2d 669 (2006).
Theft by taking motor vehicle and theft by retaining motor vehicle were mutually exclusive.
- When the defendant was convicted of theft by taking a motor vehicle and theft by retaining a motor vehicle, the offenses were mutually exclusive so the convictions were reversed and remanded for a new trial, and the trial court's merger of the offenses for sentencing was an insufficient remedy. Campbell v. State, 275 Ga. App. 8, 619 S.E.2d 720 (2005).
Libel action involving published statements that trailer purchased was stolen.
- Judgment in favor of the plaintiffs in a libel action was upheld because the defendants published newspaper advertisements that offered a reward for the return of the trailer purchased by the plaintiffs, stating that the trailer was taken without proper ownership, documentation, and payment and was last seen with the plaintiffs and the plain import of those words imputed the criminal offense of theft to the plaintiffs, a crime for which the plaintiffs had not been charged or found guilty. Cate v. Patterson, 354 Ga. App. 108, 840 S.E.2d 489 (2020).
Scope of statute.
- Language "regardless of the manner in which said property is taken or appropriated," renders O.C.G.A. § 16-8-2 sufficiently broad to encompass thefts or larcenies perpetrated by deception, as prohibited under O.C.G.A. § 16-8-3, and theft by conversion, as prohibited under O.C.G.A. § 16-8-4, the punishment for all of which is identical, as provided in O.C.G.A. § 16-8-12. Ray v. State, 165 Ga. App. 89, 299 S.E.2d 584 (1983).
When the evidence at trial was sufficient to establish commission of the crime of theft by taking, and the evidence also may have shown theft by deception, the phrase "regardless of the manner in which the property is taken or appropriated" rendered the theft by taking statute sufficiently broad to encompass thefts perpetrated by deception. Thus, the evidence was sufficient to authorize a conviction on that charge. Lundy v. State, 195 Ga. App. 682, 394 S.E.2d 559 (1990).
Merger inappropriate.
- With regard to a defendant's convictions for six counts of theft by taking, in violation of O.C.G.A. § 16-8-2, and six counts of felony theft by conversion, in violation of O.C.G.A. § 16-8-4(a), because there was sufficient evidence to prove each count as a separate and distinct act, merger was inappropriate and the defendant was properly convicted on all 12 counts. Kohlhaas v. State, 284 Ga. App. 79, 643 S.E.2d 350 (2007).
Evidence and Inferences
Venue not established by the evidence.
- Sufficient evidence supported the defendant's conviction for theft by taking since the evidence showed that the defendant never used the funds borrowed for relocating the Florida plant, as promised, and the loan was secured with equipment that the defendant did not own; however, the prosecution failed to prove venue was proper in Dodge County, Georgia, since although the contracts were executed in Dodge County, there was no evidence that the defendant exercised any control over the $ 350,000 in Dodge County. Davis v. State, 326 Ga. App. 279, 754 S.E.2d 815 (2014).
Evidence of additional stolen goods would be admissible as evidence of system of mutually dependent crimes. Bishop v. State, 155 Ga. App. 611, 271 S.E.2d 743 (1980).
Types of evidence admissible regarding embezzlement.
- In trial for embezzlement, it is permissible to prove acts of extravagance on part of accused, the amount and sources of the accused's income, the amount reasonably necessary to maintain self and family in the manner in which they were maintained during the period of controversy, fraudulent practices on the accused's part to increase the accused's income and cover up defalcations, and other like matters, not only on the question of intent, but also to show the accused's bent of mind for the commission of the particular offense charged in the bill of indictment on trial. Walker v. State, 156 Ga. App. 842, 275 S.E.2d 755 (1980).
Jury was authorized to consider the extravagance of large-scale gambling on a policeman's salary as evidence which tended to show the appellant's intent, motive, plan, scheme, and bent of mind. Walker v. State, 156 Ga. App. 842, 275 S.E.2d 755 (1980).
Like criminal acts by an embezzler have been admitted to show fraudulent intent and are an exception to the general rule enunciated in former Code 1933, § 38-202 (see now O.C.G.A. § 24-4-404). Walker v. State, 156 Ga. App. 842, 275 S.E.2d 755 (1980).
Ownership of stolen property must be alleged directly and not by way of inference and is properly laid as of the date when the offense was committed. McKee v. State, 200 Ga. 563, 37 S.E.2d 700 (1946) (decided under former Code 1933, § 26-2603).
"Lawful possession."
- In a prosecution of theft by taking, the state was entitled to the unrebutted assumption that the appropriate city officials had authorized the defendant to collect fines and bonds in accordance with the requirements of the city charter. Wilson v. State, 211 Ga. App. 486, 439 S.E.2d 701 (1993).
It can be inferred from fact that goods were on sale in supermarket that property was owned by supermarket. Earley v. State, 155 Ga. App. 576, 271 S.E.2d 709 (1980).
Inference of fact.
- Rule of evidence to the effect that where stolen goods are found in the possession of a defendant charged with larceny or kindred offenses recently after the commission of the offense, such fact authorizes the jury to infer that the accused is guilty unless such possession is explained to its satisfaction, constitutes an inference of fact and not of law, and is based upon a circumstantial fact from which the inference of guilt may be drawn in the absence of satisfactory explanation. Wakefield v. State, 76 Ga. App. 271, 45 S.E.2d 675 (1947) (decided under former Code 1933, § 26-2603).
When the defendant was found, two hours after the theft of an automobile temporarily left with the motor running in front of a liquor store, driving the automobile away from another liquor store, is sufficient evidence on such a hearing that the defendant stole the vehicle. Hulett v. State, 150 Ga. App. 367, 258 S.E.2d 48 (1979) (decided under former Code 1933, § 26-1813).
Evidence about the defendant's burning the victim's car after the defendant took the car reflected on the defendant's "intention of depriving [the victim] of the property," and was admissible. Braswell v. State, 245 Ga. App. 602, 538 S.E.2d 492 (2000).
Wrong standard of proof applied in juvenile's case.
- Juvenile's adjudication as delinquent for theft related acts was reversed because the juvenile court applied an erroneous standard of proof by concluding that there was some evidence to find that the juvenile removed a teacher's wallet from the teacher's desk since the wallet was found in the juvenile's book bag as the proper standard was proof beyond a reasonable doubt, not the lesser and different standard of some evidence. In the Interest of A. G., 355 Ga. App. 771, 845 S.E.2d 779 (2020).
Proof of possession of stolen property which is not recent would not alone authorize conviction, but is a circumstance which may always go to the jury. Harper v. State, 60 Ga. App. 684, 4 S.E.2d 734 (1939) (decided under former Code 1933, § 26-2603).
While recent possession of stolen goods, unexplained, will justify a conviction for larceny, the mere possession of goods several months subsequent to the time the goods were alleged to have been stolen, and a failure to satisfactorily account for such possession, will not alone authorize a conviction. Harper v. State, 60 Ga. App. 684, 4 S.E.2d 734 (1939) (decided under former Code 1933, § 26-2603).
Inference raised by unaccounted for possession of recently stolen goods.
- Recent possession of stolen goods unexplained to the satisfaction of the jury and especially when accompanied by false statements as to the person from whom received authorizes a conviction of larceny. Stocks v. State, 119 Ga. App. 837, 168 S.E.2d 893 (1969).
Possession of recently stolen goods, unaccounted for, raises an inference that the possessor is the one who stole the goods, and if the accused does not want this inference to arise in the accused's case, the accused must account for the accused's possession. Horton v. State, 228 Ga. 690, 187 S.E.2d 677 (1972).
Recent possession of stolen goods without reasonable explanation will authorize conviction of theft by taking. Peacock v. State, 131 Ga. App. 651, 206 S.E.2d 582 (1974); Bigby v. State, 184 Ga. App. 94, 360 S.E.2d 751 (1987).
When a theft, whether by simple larceny, burglary, or robbery, is proven, recent unexplained possession of stolen goods by the defendant creates an inference of fact sufficient to convict. This is true without direct proof or other circumstantial evidence that the defendant committed the theft. Lockett v. State, 153 Ga. App. 569, 266 S.E.2d 236 (1980).
Recent possession of stolen goods, coupled with other evidence linking the defendant with theft, negated the propriety of a directed verdict of acquittal on a charge of theft by taking. Rautenberg v. State, 178 Ga. App. 165, 342 S.E.2d 355 (1986).
Inference alone insufficient for conviction.
- Although there is still validity to the long-established rule that proof of recent, unexplained possession of stolen goods by the defendant is sufficient to create an inference that the defendant is guilty of the burglary of the goods, proof of recent, unexplained possession is not automatically sufficient to support a conviction for burglary. Rogers v. State, 185 Ga. App. 211, 363 S.E.2d 846 (1987).
Improper inference of criminal association.
- State should not have been permitted to cross-examine the defendant as to whether the defendant was aware of an acquaintance's past criminal indictment for running stolen goods. Busbee v. State, 210 Ga. App. 17, 435 S.E.2d 60 (1993).
When only evidence supporting conviction is proof of possession of stolen goods.
- Evidence of recent unexplained possession of a stolen vehicle is sufficient in itself to support a conviction for the theft by taking. Callahan v. State, 148 Ga. App. 555, 251 S.E.2d 790 (1978).
When apprehended, the appellant was the driver of the recently stolen van. In the absence of a satisfactory explanation of appellant's possession of the stolen vehicle, this evidence was sufficient in itself to support a conviction for theft by taking. Warfle v. State, 157 Ga. App. 196, 276 S.E.2d 689 (1981).
The more-likely-than-not test is the appropriate one to employ in determining the due-process validity of allowing the factfinder to presume or infer an ultimate or essential element fact from an evidentiary or basic fact. Under this test, it is rational to allow the factfinder to infer that the defendant is guilty of burglary based on proof of defendant's recent, unexplained possession of stolen goods. If the only evidence supporting the conviction is the evidence giving rise to the inference or presumption, however, then such evidence must establish the offense beyond a reasonable doubt in order to be sufficient to support the conviction. Rogers v. State, 185 Ga. App. 211, 363 S.E.2d 846 (1987).
Submitting invoices to state with large markups.
- When the state contends the defendant committed theft by deception when the defendant submitted false invoices to the General Assembly, but the invoices contained a statement of charges for services rendered and taken as a whole and compared with the billings to the defendant there was a very large markup, that is not a false statement, and there was no theft by taking under O.C.G.A. §§ 16-8-2 and16-8-3. Gordon v. State, 257 Ga. 335, 359 S.E.2d 634 (1987).
Defendant's conviction for theft by taking in violation of O.C.G.A. § 16-8-2 was proper under former O.C.G.A. § 24-3-14 (see now O.C.G.A. § 24-8-803) because the business records exception did not require that the person laying the foundation for the admission of business records be the custodian of the records. Instead, the statute required only that the record offered to prove an act or transaction be made in the regular course of business and that it was the regular course of business to make the record at the time of the act or transaction; the witness's lack of personal knowledge regarding how the records were created did not render the records inadmissible, but merely affected the weight given to the evidence. Loyal v. State, 300 Ga. App. 65, 684 S.E.2d 124 (2009).
Goods obtained under color of official position.
- Simply because defendant went through appropriate channels and obtained surplus law enforcement property under color of defendant's position as chief of police did not mean that defendant could not be convicted of theft by taking. Spray v. State, 223 Ga. App. 154, 476 S.E.2d 878 (1996).
Trial court did not err in sustaining objection to cross-examination.
- Trial court did not abuse the court's discretion in sustaining the state's objection to the defendant's cross-examination of a company president regarding the president's efforts to reduce tax liability because the defendant never testified that the defendant was being rewarded for helping the president minimize tax liability, and some of the questions to which the state objected related to tax advice the president received from the president's accounting firm, which would have shed no light on the defendant's actions. Gautreaux v. State, 314 Ga. App. 103, 722 S.E.2d 915 (2012).
Whether or not defendant's explanation of possession was satisfactory or reasonable was jury question. Warfle v. State, 157 Ga. App. 196, 276 S.E.2d 689 (1981).
Instruction not comment on defendant's failure to testify.
- An instruction stating that guilt of the defendant can be inferred from possession of recently stolen property unaccounted for by defendant cannot properly be construed as a comment on the defendant's failure to testify. Horton v. State, 228 Ga. 690, 187 S.E.2d 677 (1972).
When evidence supports finding of theft by deception.
- One may be indicted and convicted under former Code 1933, § 26-1802 (see now O.C.G.A. § 16-8-2) for theft by taking if the evidence supports a finding of guilt under former Code 1933, § 26-1803 (see now O.C.G.A. § 16-8-3) for theft by deception. Elliott v. State, 149 Ga. App. 579, 254 S.E.2d 900 (1979).
Evidence sufficient for conviction of theft by snatching.
- Identification testimony was sufficient to establish beyond a reasonable doubt that defendant was the perpetrator of the offenses of theft by sudden snatching and aggravated assault with intent to rob. Tolbert v. State, 180 Ga. App. 703, 350 S.E.2d 51 (1986).
Error in admitting similar transaction evidence required reversal.
- While state presented sufficient evidence of the victim's age to support assault charge under O.C.G.A. § 16-5-21(a)(1), because the trial court clearly erred in admitting evidence of two burglaries defendant committed in 1998 as similar transactions to help prove the issue of identity, the defendant's aggravated assault, burglary, robbery, theft, and battery convictions were reversed. Usher v. State, 290 Ga. App. 710, 659 S.E.2d 920 (2008).
Evidence of similar transaction admissible.
- Given the similarities between the theft of a car and the theft of a second vehicle only hours after the car was stolen, evidence of either theft would be admissible as a similar transaction of the other to show bent of mind, intent, and course of conduct; both crimes occurred in the same city and on the same date, both involved the theft of foreign-made, mid-size sedans, and the state presented evidence from which the jury could infer that, like the car, the keys had been left in the second vehicle at the time the car was stolen, and the keys from both cars were missing when the cars were recovered. Ferguson v. State, 307 Ga. App. 232, 704 S.E.2d 470 (2010).
Evidence of previous convictions.
- When the trial was conducted by the court without a jury, there was no need for a separate hearing to consider prior similar crimes (two previous convictions for shoplifting) before the crimes were admitted. Lark v. State, 190 Ga. App. 821, 380 S.E.2d 505 (1989).
Indictments for two previous convictions for shoplifting were sufficient on their face to show the remaining elements of the required foundation and the convictions were admissible as going to the defendant's state of mind, when the defendant admitted walking out of the store with the clothing on this occasion one year later. Lark v. State, 190 Ga. App. 821, 380 S.E.2d 505 (1989).
Evidence sufficient to support conviction of juvenile.
- Evidence the defendant juvenile was apprehended after fleeing a stolen car, a cell phone from a car broken into was found, one of the juveniles told investigators the defendant was involved in the break-ins, and the defendant and other juveniles were members of a gang whose modus operandi was breaking into and stealing cars established probable cause to believe the defendant committed 32 acts of entering an automobile with intent to commit a theft and one count of theft by taking a motor vehicle. In the Interest of K. S., 348 Ga. App. 440, 823 S.E.2d 536 (2019).
Ample evidence supported the defendant's convictions of two predicate acts of theft or money laundering to support RICO charges because the victim testified that the victim never authorized the defendant to take $3.5 million and the victim's court appointed conservator also testified that the defendant engaged in egregious transactions whereby multiple checks were written to the defendant from the widow's accounts with no clear purpose or benefit to the widow. Carr v. State, 350 Ga. App. 461, 829 S.E.2d 641 (2019), cert. denied, No. S19C1422, 2020 Ga. LEXIS 15 (Ga. 2020).
Evidence sufficient to support conviction.
- See Hicks v. State, 169 Ga. App. 542, 314 S.E.2d 113 (1984); McIlhenny v. State, 172 Ga. App. 419, 323 S.E.2d 280 (1984); Thomas v. State, 177 Ga. App. 366, 339 S.E.2d 599 (1985); Rucker v. State, 177 Ga. App. 779, 341 S.E.2d 228 (1986); Hayes v. State, 177 Ga. App. 889, 341 S.E.2d 709 (1986); Benton v. State, 178 Ga. App. 239, 342 S.E.2d 722 (1986); Milford v. State, 178 Ga. App. 792, 344 S.E.2d 505 (1986); Phinazee v. State, 182 Ga. App. 45, 354 S.E.2d 671 (1987); Eady v. State, 182 Ga. App. 293, 355 S.E.2d 778 (1987), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020); Murphy v. State, 182 Ga. App. 791, 357 S.E.2d 147 (1987); McKenzie v. State, 187 Ga. App. 840, 371 S.E.2d 869, cert. denied, 187 Ga. App. 907, 371 S.E.2d 869 (1988); Howell v. State, 188 Ga. App. 425, 373 S.E.2d 216, cert. denied, 188 Ga. App. 912, 373 S.E.2d 216 (1988); Eads v. State, 193 Ga. App. 262, 387 S.E.2d 591 (1989); Hicks v. State, 196 Ga. App. 180, 396 S.E.2d 33 (1990); Davis v. State, 223 Ga. App. 346, 477 S.E.2d 639 (1996); Massalene v. State, 224 Ga. App. 321, 480 S.E.2d 616 (1997); Jordan v. State, 224 Ga. App. 181, 480 S.E.2d 228 (1996); Massalene v. State, 224 Ga. App. 321, 480 S.E.2d 616 (1997); Dorillas v. State, 224 Ga. App. 336, 480 S.E.2d 351 (1997); Rice v. State, 226 Ga. App. 770, 487 S.E.2d 517 (1997); Holland v. State, 232 Ga. App. 284, 501 S.E.2d 829 (1998); Shores v. State, 240 Ga. App. 189, 522 S.E.2d 515 (1999); Travis v. State, 243 Ga. App. 77, 532 S.E.2d 430 (2000); Chastain v. State, 244 Ga. App. 84, 535 S.E.2d 25 (2000); Jaber v. State, 243 Ga. App. 562, 533 S.E.2d 767 (2000); Parker v. State, 247 Ga. App. 722, 544 S.E.2d 542 (2001); Goss v. State, 247 Ga. App. 520, 544 S.E.2d 206 (2001); Kier v. State, 247 Ga. App. 431, 543 S.E.2d 801 (2000); Shaw v. State, 247 Ga. App. 867, 545 S.E.2d 399 (2001); Knight v. State, 246 Ga. App. 299, 540 S.E.2d 254 (2000); Mullinax v. State, 273 Ga. 756, 545 S.E.2d 891 (2001); Thomas v. State, 249 Ga. App. 571, 549 S.E.2d 408 (2001); Tukes v. State, 250 Ga. App. 117, 550 S.E.2d 678 (2001).
Evidence sufficient to enable rational trier of fact to find the defendant guilty beyond a reasonable doubt of theft by taking and recklessly causing harm to or endangering bodily safety of another person. Lucas v. State, 183 Ga. App. 637, 360 S.E.2d 12 (1987).
Jury was authorized to conclude from the evidence that the defendant accosted the victim in the mall parking lot, forced her to accompany him to a secluded area where he raped and murdered her, then took her jewelry, her pocket book, and her automobile, and used her credit cards the next day. Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606 (1989).
Testimony of an accomplice and the evidence corroborating the accomplice's testimony were sufficient to justify a rational trier of fact to find the defendant guilty beyond a reasonable doubt of burglary and theft of a motor vehicle. Thurston v. State, 186 Ga. App. 881, 368 S.E.2d 822 (1988).
Evidence demonstrating that the defendant was seen removing two small medicinal items and retaining those items for a period of time inside the store's premises was sufficient to satisfy a finding under O.C.G.A. § 16-8-2 that the defendant appropriated the subject goods, though the items were not ultimately recovered from the defendant's person. Moore v. State, 208 Ga. App. 458, 430 S.E.2d 835 (1993).
Videotapes of the defendant taking the victim's purse and using the victim's credit card, the defendant's company photograph and the ID testimony of a clerk at the store where the purse was stolen, were sufficient evidence to convict defendant for a violation of O.C.G.A. § 16-8-2. Green v. State, 223 Ga. App. 467, 477 S.E.2d 895 (1996).
Proof that defendant cashed or deposited into defendant's own account more than $500 worth of unauthorized checks was sufficient to support the jury's verdict that defendant committed theft by taking in violation of O.C.G.A. § 16-8-2. Jordan v. State, 242 Ga. App. 547, 528 S.E.2d 858 (2000).
Evidence was sufficient to sustain theft by taking conviction, where the evidence showed that the defendant made withdrawals which far exceeded the amounts the defendant knew had been deposited, despite the fact that the jury had evidence from which it could infer that the defendant could have made a mistake by relying on the availability of the funds. Smith v. State, 255 Ga. App. 580, 565 S.E.2d 904 (2002).
Defendant was convicted of felony theft by taking under O.C.G.A. §§ 16-8-2 and16-8-12(a)(1) for taking more than $500 from potential buyers of ecstasy pills and then fleeing with the money without delivering the promised pills, since there was sufficient evidence that defendant took more than $500 despite defendant's claim that the money was counterfeit after one of the buyers testified that the buyer contributed $1,000 of real money to the total that was given to defendant. Camero v. State, 257 Ga. App. 109, 570 S.E.2d 405 (2002).
Evidence that defendant had taken his former wife's car keys and had driven off in the former wife's car after defendant committed battery on the former wife and her mother, that the former wife had not given defendant permission to take the car, and that defendant refused to return the car even though the former wife begged defendant to do so was sufficient to support defendant's conviction of theft by taking a motor vehicle. Richardson v. State, 256 Ga. App. 30, 567 S.E.2d 693 (2002).
Evidence was legally sufficient to support defendant's conviction for theft by taking a motor vehicle as the evidence, viewed in the light most favorable to the verdict, showed that defendant took a vehicle belonging to a man who had left it in a friend's front yard, unlocked and with the key in the ignition, especially since defendant was identified as having been in an accident with the truck on the same day, and was chased the next day as defendant drove the truck by a police officer who was on the lookout for the stolen truck and saw that defendant was driving it. Brown v. State, 259 Ga. App. 819, 578 S.E.2d 516 (2003).
When at the time the defendant sold a victim a factoring agreement, the defendant had substantial debt and no immediate prospects of re-paying the money within the 90 days provided for in the note, and nine months after the investment was made, presented the victim with a check to reimburse the victim that was dishonored, the evidence was sufficient to support the defendant's conviction of theft by taking. Rasch v. State, 260 Ga. App. 379, 579 S.E.2d 817 (2003).
Evidence was sufficient to support defendant's conviction for theft by taking as it showed the defendant was in recent and unexplained possession of a lighter belonging to the victim's spouse, as well as other items taken from the victim's residence, that the residence from which the items were taken was adjacent to and accessible on foot from a wooded area where the defendant was seen around the time the crimes occurred, and similar transaction evidence showed the defendant had previously received items stolen from homes in the area. Gray v. State, 260 Ga. App. 197, 581 S.E.2d 279 (2003).
Evidence was sufficient to support defendant's convictions of two counts of armed robbery, two counts of theft by taking, three counts of aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2), three counts of simple battery, three counts of kidnapping, and two counts of possessing a firearm during the commission of a crime since: (1) there was evidence that defendant entered a store, placed a knife to the neck of one of the three victims, forced that victim to the back of the store, aided another assailant who was armed with a gun to bind the victims and drag them to the back of the store, and stole money and other items from two of the victims; (2) defendant confessed to the crimes during interviews with law enforcement officials; and (3) defendant's confessions were corroborated by the testimony of one of the victims who, despite earlier being unable to identify the robbers, ultimately identified defendant as one of the robbers. The corroborating victim's initial inability to identify defendant posed an issue of credibility for the jury's resolution and did not require reversal. Phanamixay v. State, 260 Ga. App. 177, 581 S.E.2d 286 (2003).
Victim's testimony that defendant took the victim's car and drove away, and the testimony of a police officer that the car was recovered only after police pursuit of the vehicle and apprehension of the occupants, was sufficient to support defendant's conviction for theft by taking. Newton v. State, 261 Ga. App. 762, 583 S.E.2d 585 (2003).
Evidence was sufficient to support defendant's convictions for malice murder, theft by taking, and financial transaction card fraud, as the evidence authorized any rational trier of fact to find defendant guilty of those crimes beyond a reasonable doubt; the evidence showed that defendant struck the victim multiple times with a wrench, causing the victim's death, that the defendant was in possession of a laptop computer that had been missing from the victim's office, and that defendant had used the victim's credit, posing as the victim's spouse, on the day the victim died. Baugh v. State, 276 Ga. 736, 585 S.E.2d 616 (2003).
There was sufficient evidence to identify the semi-tractor and trailer described in count one of the petition and in the proof at trial as being one and the same, and the misidentification did not mislead or misinform defendant or leave defendant subject to subsequent prosecution for the same offense, and thus was not a fatal variance; the evidence was sufficient to support the juvenile judge's adjudication of delinquency based on all the counts alleged in the petition. In the Interest of J.D.T., 262 Ga. App. 860, 586 S.E.2d 748 (2003).
Evidence that unauthorized withdrawals were made from a victim's account using the victim's account and social security numbers, which were on the victim's bank statements, that defendant's mailbox was near the victim's, and that for each withdrawal there was a corresponding deposit into defendant's account on the same day, sufficiently supported defendant's conviction for theft by taking. Westbrooks v. State, 263 Ga. App. 566, 588 S.E.2d 335 (2003).
Evidence supported defendant's conviction for theft of trailers and tires being delivered in the trailers where defendant and a codefendant were seen moments after having returned one of the missing trailers, where they subsequently tried to flee from the police, where defendant's explanation for defendant's presence at the scene was undermined by other testimony, where a note in defendant's pocket described the crime scene, and where defendant and the codefendant gave conflicting accounts of their travel plans; the fact that one trailer was withheld temporarily and later returned with half its load missing did not mean that that trailer was not "taken." Howard v. State, 263 Ga. App. 593, 588 S.E.2d 793 (2003).
Defendant's boasting that the defendant stole the victim's cell phone, coupled with the victim's testimony that the phone was missing, provided ample circumstantial evidence to support the defendant's convictions of entering an auto with intent to commit a theft, and of theft. In the Interest of M.C.A., 263 Ga. App. 770, 589 S.E.2d 331 (2003).
When the defendant, who was not in custody at the time, volunteered an explanation as to why the defendant possessed a weapon without authority, no Miranda warning was necessary and the evidence was sufficient to show that the defendant inflicted a shot upon the defendant's person in a government building with a weapon that defendant took from police custody in violation of O.C.G.A. §§ 16-7-24(a) and16-8-2; therefore, the trial court's findings were not clearly erroneous. McClendon v. State, 264 Ga. App. 174, 590 S.E.2d 189 (2003).
Evidence that defendant abandoned the project, promised to return the unearned portion of the down payment, and then failed to do so was sufficient to support a conviction for theft by taking. Smith v. State, 265 Ga. App. 57, 592 S.E.2d 871 (2004).
Evidence that defendant was given a key to the victim's apartment, that there was no forced entry, that defendant admitted being in close proximity to the closet where the stolen bank was located, and that defendant had not returned the key to the apartment to the leasing office on the date in question was sufficient to support a conviction for theft by taking. Pitmon v. State, 265 Ga. App. 655, 595 S.E.2d 360 (2004).
Evidence was sufficient to support defendant's conviction for theft by taking in violation of O.C.G.A. § 16-8-2 as defendant took a car and its contents, including a victim's handgun, with the intent to deprive the owners of the property; the evidence included: (1) testimony as to the gunman's size; (2) testimony that the car's rims were found at defendant's home; (3) testimony that a victim's cell phone made calls to defendant's home; (4) an accomplice's reference to the gunman as "B"; and (5) similar transaction evidence of another carjacking, involving a car of the make and color as a car used in the hijacking of the victims' car. Mullins v. State, 267 Ga. App. 393, 599 S.E.2d 340 (2004).
When the defendant, according to the defendant's love interest, drove a stolen vehicle onto the victim's property through a locked gate, parked near a building where objects were stolen, and got into the vehicle and drove away, and the owner testified that the owner had not given the defendant permission to take the objects that were stolen, there was sufficient evidence to convict the defendant of criminal trespass in violation of O.C.G.A. § 16-7-21(a), burglary in violation of O.C.G.A. § 16-7-1(a), and theft by taking in violation of O.C.G.A. § 16-8-2. Sexton v. State, 268 Ga. App. 736, 603 S.E.2d 66 (2004).
There was sufficient evidence to support defendant juvenile's adjudication as delinquent for acts which, if committed by an adult, would have constituted three counts of theft by taking. Evidence that three youths were overheard in the car lot talking about stealing cars and that they fled when they saw police, coupled with the circumstantial evidence that several vehicles were hot and parked in a different area than originally parked, was sufficient evidence to show the commission of the crime of theft by taking. In the Interest of S.D.T.E., 268 Ga. App. 685, 603 S.E.2d 316 (2004).
Testimony of a store's loss prevention employee as to the ownership and value of coats stolen by the defendant, and testimony by the employee that the employee saw the defendant take the coats, place the coats in a bag, and flee from the store was sufficient to support a theft by shoplifting conviction. Lanier v. State, 269 Ga. App. 284, 603 S.E.2d 772 (2004).
Evidence supported the defendant's conviction for theft by taking because the defendant pawned a TV and two VCRs stolen from a home within hours of the crime and a mode of operation was proven from evidence that the defendant pled guilty to a similar burglary in which a door was also kicked in while the homeowner was absent during the day and valuable items were taken from the master bedroom. Jefferson v. State, 273 Ga. App. 61, 614 S.E.2d 182 (2005).
Evidence was sufficient to support the defendant's conviction for theft by taking as a rational trier of fact was authorized to conclude that the defendant obtained the victim's money by telling the victim that the defendant was going to invest the money for the victim and then took that money and sent the money to entities defendant controlled, thus depriving the victim of the lawful use of that money. Gould v. State, 273 Ga. App. 155, 614 S.E.2d 252 (2005).
Evidence supported the defendant's theft by taking a motor vehicle conviction as the defendant was seen driving a city truck that was kept behind a locked fence at a city landfill, the chain on the lock was cut, the defendant was not authorized to enter the landfill when it was locked, and defendant was selling items out of the truck. Sadberry v. State, 273 Ga. App. 257, 614 S.E.2d 885 (2005).
Convictions for theft, aggravated assault, and making a terroristic threat was supported by evidence because the defendant admitted to taking gas cans, raised a machete to scare or strike the defendant's sibling, the sibling was frightened and ran, and the defendant then threatened both of the defendant's siblings that if either called the sheriff the defendant would return and kill the siblings. Turner v. State, 273 Ga. App. 535, 615 S.E.2d 603 (2005).
Evidence was sufficient to support defendant's convictions for concealment of a death and theft by taking as the evidence showed that the defendant directed the customer of a salon the defendant operated, who had a fight with a person with whom the defendant had been living, to dispose of the person's body after the customer shot the person to death following an argument at the defendant's home and that the defendant told people that the person had left after an argument; too, the evidence showed that the defendant had taken the person's sports memorabilia collection and a camera, and, thus, was guilty of theft by taking. James v. State, 274 Ga. App. 498, 618 S.E.2d 133 (2005).
Evidence was sufficient to support a conviction for misdemeanor theft by taking since the defendant broke into the victim's residence, took a gun valued at $80.00, and left a blood trail back to the defendant's own residence next door and when the defendant's sibling turned the stolen gun into police after the sibling found the gun in the defendant's residence. Meeks v. State, 274 Ga. App. 517, 618 S.E.2d 152 (2005).
Evidence was sufficient to support the defendant's theft by taking conviction as defendant's unexplained possession of stolen tools, which defendant pawned soon after the thefts, supported the conviction. Drake v. State, 274 Ga. App. 882, 619 S.E.2d 380 (2005).
Evidence that a person matching the defendant's description was seen driving a victim's car out of a parking lot, that the car was later found at an address the defendant had given on a job application, that property stolen from other victims was found in the car, and that the defendant's thumbprint matched a fingerprint found on that property was sufficient to convict the defendant of theft by taking a motor vehicle, theft by retaining a motor vehicle, and theft by retaining stolen property. Campbell v. State, 275 Ga. App. 8, 619 S.E.2d 720 (2005).
Because an accomplice's testimony was corroborated by the defendant's recent possession of a stolen boat as well as the defendant's flight from the scene of the crime, the evidence was sufficient to convict the defendant of theft by taking; consequently, the trial court properly denied the defendant's motion for a new trial. Johnson v. State, 275 Ga. App. 161, 620 S.E.2d 433 (2005).
Defendant's conviction for felony theft by taking over $500.00 was supported by the evidence as defendant was accused of stealing over $500.00 in the aggregate over a 35-month period; the state could aggregate the amount of money stolen over a period of time into one count in an accusation. Parham v. State, 275 Ga. App. 528, 621 S.E.2d 532 (2005).
Because the defendant promised - orally and in writing - to use the victims' money to acquire tire hauling containers, but instead used the money for other purposes, the jury was entitled to infer criminal intent and to find the defendant guilty of theft by taking under O.C.G.A. § 16-8-2 or as a party to the crime of theft by taking under O.C.G.A. § 16-2-20. Matthiessen v. State, 277 Ga. App. 54, 625 S.E.2d 422 (2005).
As the state presented direct, and not circumstantial, evidence from the victims supporting the jury's finding of guilt, when this testimony was coupled with that from the police officers involved, substantial and sufficient evidence supported a conviction for armed robbery and related offenses; the fact that the defendant offered another explanation for the defendant's presence at the scene did not render the other evidence insufficient or circumstantial. Bakyayita v. State, 278 Ga. App. 624, 629 S.E.2d 539 (2006).
Evidence was sufficient to prove that a juvenile was a party to theft by taking a motor vehicle since, even though there was no direct evidence that the juvenile was at the crime scene, the juvenile was with three other juveniles when the juveniles were seen driving and riding in vehicles that were later discovered to have been stolen from a repair shop storage facility since a witness testified that the vehicles exited a driveway near the shop shortly before one of the of the vehicles broke down, that the vehicle broke down a few hundred feet from the shop, and that the second vehicle circled back, since the juveniles gave conflicting stories about the owner of the broken down vehicle, and since the key to the second vehicle was found in the juvenile's pocket; the juvenile court could have inferred from the location of the broken down vehicle that both vehicles had just been taken from the shop by the four juveniles. In the Interest of R.F., 279 Ga. App. 708, 632 S.E.2d 452 (2006).
Evidence supported a defendant's convictions for fleeing and attempting to elude a police officer as an underlying offense for felony murder, theft by taking, vehicular homicide, disregarding a traffic control device, failing to stop at a stop sign, and reckless driving as: (1) the defendant stole a vehicle and was spotted by an officer shortly after the vehicle was reported as stolen; (2) when the officer began to follow the vehicle, the vehicle rapidly accelerated; (3) the officer followed the stolen vehicle for several blocks, with both vehicles traveling between 60-70 miles per hour; (4) the vehicle continued to accelerate after the officer turned on the officer's blue lights and siren; (5) when the stolen vehicle ran a red light, the vehicle struck a car, killing the driver; and (6) the officer and the owner of the stolen vehicle identified the defendant as the person driving the stolen vehicle. Ferguson v. State, 280 Ga. 893, 635 S.E.2d 144 (2006).
There was sufficient evidence, both direct and circumstantial, to support the defendant's conviction for theft by taking, and other related charges, since the victim testified that the defendant took the victim's vehicle and the jury was charged on the law of parties to a crime; the victim testified that the perpetrators took the victim's keys and that when the victim freed oneself sufficiently to look outside, the victim's car was gone. Bills v. State, 283 Ga. App. 660, 642 S.E.2d 352 (2007).
Based on the defendant's concession that the state's evidence tended to show an inference of the defendant's guilt in making a false claim against the county as to money the county allegedly owed to the defendant, and despite a claim that the facts supported the conclusion that the county's aquatic center director was the culpable party, when the defendant pointed to no evidence proving such, convictions for criminal attempt to commit theft by taking and first-degree forgery were supported by the evidence. Brown v. State, 285 Ga. App. 453, 646 S.E.2d 289 (2007), cert. denied, No. S07C1503, 2007 Ga. LEXIS 672 (Ga. 2007).
There was sufficient evidence to support the defendant's convictions of theft by taking; records showed that the defendant, a business manager, had received payments for a car but had never credited the payments to the business, and the defendant had made a loan to a fictitious person, then issued a check that was purportedly endorsed and cashed by the fictitious person. Ruppert v. State, 284 Ga. App. 456, 643 S.E.2d 892 (2007).
Evidence supported the defendant's convictions of malice murder and of theft by taking when: the victim was found dead in a motel room that the victim and the defendant shared; DNA taken from under the victim's fingernails matched samples taken from the defendant; there was evidence that the defendant drove the victim's pickup truck away from the motel and left the truck at a friend's house; and a bloodstain on the truck abandoned by the defendant contained a transfer bloodstain that matched the victim's blood. Teal v. State, 282 Ga. 319, 647 S.E.2d 15 (2007).
In a bench trial, because conflicts in the evidence were for the trial court, as the trier of fact, and not the court of appeals to resolve, the defendant's convictions for theft by taking a motor vehicle and possessing cocaine were not subject to reversal on appeal based on the conflicts. Marshall v. State, 286 Ga. App. 86, 648 S.E.2d 674 (2007).
Evidence was sufficient to support a conviction of theft by taking when an investigator hired by a company to investigate a sudden increase in company expenditures found that the defendant, a manager at the company, had written numerous company checks for personal use, diverted funds to the defendant's family, and falsified at least one loan; the jury was entitled to disbelieve the defendant's testimony that the company had authorized the defendant's expenditures. Lewis v. State, 287 Ga. App. 379, 651 S.E.2d 494 (2007).
Because the question of the defendant's intent to steal was for the jury to decide, the pattern jury charge issued by the trial court was not erroneous and the defendant was properly barred from impeaching the informant through the use of prior convictions in the absence of certified copies of the convictions, the defendant's theft by taking conviction was affirmed on appeal. Dudley v. State, 287 Ga. App. 794, 652 S.E.2d 840 (2007), cert. denied, No. S08C0319, 2008 Ga. LEXIS 168 (Ga. 2008).
Evidence supported the defendant's convictions of burglary, kidnapping with bodily injury, rape, aggravated assault, robbery, and theft by taking when a treating physician stated that the 86-year-old victim's injuries, including blood inside her vagina and bruises and contusions on her vagina, were consistent with forcible penetration; when the defendant admitted entering the victim's home, removing her clothing, restraining her with electrical cords, hitting her, putting a plastic bag over her head, forcing her from one room to another, and taking her money and her car; and when DNA from the defendant matched the DNA of two hair roots found on the victim's living room floor. Smith v. State, 291 Ga. App. 545, 662 S.E.2d 323 (2008).
Evidence that the defendant punched the victim in the jaw to force the victim to exit the victim's car, drove away, and admitted stealing the car to police was sufficient to convict the defendant of theft by taking in violation of O.C.G.A. § 16-8-2. Bridges v. State, 293 Ga. App. 783, 668 S.E.2d 293 (2008).
Evidence supported convictions for aggravated assault, theft by taking, and felony murder when the evidence showed that the defendant pulled the victim out of the victim's car, beat the victim with a pistol, stole the car, and deliberately backed over the victim; before the crime, the defendant told an eyewitness to those acts that the defendant planned to rob the victim; and the defendant used the victim's phone after the victim's death. Lupoe v. State, 284 Ga. 576, 669 S.E.2d 133 (2008).
Evidence was sufficient to support the defendant's convictions for, inter alia, malice murder, theft by taking an automobile, and possession of a firearm by a convicted felon as the defendant admitted to a cellmate and to a cousin's roommate that the defendant fatally shot the cousin when the cousin told the defendant to move out of a shared apartment; there was also physical evidence, the recovery of the gun used in the incident, and witness testimony that supported the conviction. Jackson v. State, 284 Ga. 826, 672 S.E.2d 640 (2009).
Restaurant was robbed, the manager was fatally shot, and the manager's car was stolen. As the defendant's accomplice, the defendant's cellmate, and an officer testified that the defendant admitted committing the murder, the evidence was sufficient to convict the defendant of malice murder, armed robbery, and theft by taking. Patterson v. State, 285 Ga. 597, 679 S.E.2d 716 (2009), cert. denied, 558 U.S. 1117, 130 S. Ct. 1051, 175 L. Ed. 2d 892 (2010).
Evidence was sufficient to support a guilty verdict for felony theft by taking given the testimony of the victim, the police officers, the pawnbroker, and the videotape of the crime. Sheppard v. State, 300 Ga. App. 631, 686 S.E.2d 295 (2009).
Evidence was sufficient to convict the defendant of theft by taking of a motorcycle, a helmet and jacket, and a truck because keys to the truck were found in the defendant's motel room, keys to the motorcycle were found in the truck, and witnesses tied the defendant to both the truck and the motorcycle. McClain v. State, 301 Ga. App. 844, 689 S.E.2d 126 (2010).
Evidence that a defendant kept a pick-up truck for over a year after completing repairs to the truck and that the defendant was using it as a residence, despite the fact that the owner made repeated attempts to contact the defendant about getting the truck back, was sufficient to sustain defendant's conviction of theft in violation of O.C.G.A. § 16-8-2. Thornton v. State, 301 Ga. App. 784, 689 S.E.2d 361 (2009).
Evidence was sufficient to convict the defendant of criminal trespass and theft by taking because the defendant was found at a recycling facility trying to sell pieces of the victim's aluminum awning, which the defendant had previously been told was not trash, but belonged to a laundry establishment. Jackson v. State, 301 Ga. App. 863, 690 S.E.2d 195 (2010).
Trial court did not err in denying the defendant's motion for a directed verdict because the evidence was sufficient for a rational trier of fact to infer that the defendant acted with criminal intent and to find the defendant guilty of theft by taking in violation of O.C.G.A. § 16-8-2, and whether the defendant intended to deprive the victims of their property was a question for the trier of fact, who was not required to believe the defendant's testimony; the manner in which the property was appropriated was irrelevant, and even if the trial court had accepted the defendant's claim that the defendant lawfully appropriated the trailer, the evidence supported a finding that although the defendant could have had lawful possession of the truck initially, the defendant failed to return the truck, or even provide the victims with the location of the truck upon their demands. Rushing v. State, 305 Ga. App. 629, 700 S.E.2d 620 (2010).
Circumstantial evidence was sufficient to authorize the jury to exclude every reasonable hypothesis except that the defendant was guilty of theft by taking because an ATM was removed from a bank's property without authorization, defendant's vehicle was observed at the bank approximately two hours before the theft was reported and shortly after the alarm was activated; tire tracks at the scene matched the tire prints on the defendant's vehicle, the vehicle had a tow strap with a large metal hook tied to it, scrape marks consistent with a heavy object being drug on the pavement led from the ATM's location in the direction of a nearby grassy lot, where the ATM was later found, and the defendant possessed black electrical tape and gloves upon the defendant's arrest; the jury was authorized to consider the defendant's flight from the scene and police as circumstantial evidence of defendant's guilt. Tauch v. State, 305 Ga. App. 643, 700 S.E.2d 645 (2010).
Although under Georgia law, a defendant could not be convicted solely upon the uncorroborated testimony of an accomplice, former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), the evidence corroborated some particulars of the accomplice's testimony implicating the codefendants in the charged crimes since all three of the victims from the three separate gas stations provided descriptions of their assailants that generally matched the codefendants and the accomplice, and all three victims also testified that their assailants brandished a handgun and a shotgun, which were indeed the weapons that were found at the scene where the stolen SUV crashed and where the accomplice was arrested. Accordingly, the evidence corroborating the accomplice's testimony was sufficient to authorize the jury's determination that the codefendants were guilty beyond a reasonable doubt as parties to armed robbery, O.C.G.A. § 16-8-41, hijacking a motor vehicle, O.C.G.A. § 16-5-44.1, aggravated assault, O.C.G.A. § 16-5-21, theft by taking, O.C.G.A. § 16-8-2, theft by receiving, O.C.G.A. § 16-8-7, and possession of a firearm during the commission of a felony, O.C.G.A. § 16-11-106. Daniels v. State, 306 Ga. App. 577, 703 S.E.2d 41 (2010).
Defendant was properly convicted of theft by taking a motor vehicle in violation of O.C.G.A. § 16-8-2 because the evidence was sufficient to permit a rational jury to conclude beyond a reasonable doubt that the defendant stole a car; the jury was shown a video recording of the theft, the defendant admitted to a police officer that the defendant was the person depicted in the recordings walking near the car, the defendant stole another vehicle only hours after the car was stolen, and it was assumed that the jury concluded that the defendant was untruthful when the defendant denied stealing the car. Ferguson v. State, 307 Ga. App. 232, 704 S.E.2d 470 (2010).
Rational trier of fact was authorized to find that the evidence was sufficient to exclude every reasonable hypothesis except that of the defendant's guilt and to conclude beyond a reasonable doubt that the defendant was guilty of theft by taking, O.C.G.A. § 16-8-2, because there was evidence that the defendant was alone for 20 minutes or more on the floor of the house where the money was kept and where no cleaning was to be performed; while there was circumstantial evidence that also implicated another house cleaner, reasonable jurors could have found from the evidence that the hypothesis that the house cleaner took the money was excluded based on testimony that the defendant had been alone in the area of the house where the money was kept, and there was no such evidence regarding the house cleaner. Cookston v. State, 309 Ga. App. 708, 710 S.E.2d 900 (2011).
Evidence was sufficient to convict a defendant of theft by taking from the defendant's employer based on an investigator's testimony that the defendant stole a box of 50 new golf club heads from the employer. The fact that the employer was aware of the planned theft and allowed the theft to proceed did not constitute consent to the taking. Baker v. State, 311 Ga. App. 532, 716 S.E.2d 580 (2011).
Evidence was sufficient to support the defendant's conviction for theft by taking, under O.C.G.A. § 16-8-2, because: (1) the perpetrator of a crime entered just before closing time a fast-food restaurant with a gun and directed the employees into a room, a cooler, and a freezer; (2) the perpetrator took money from the restaurant, shot one of the employees, and left the scene in the employee's car; (3) one of the employees telephoned relatives with a cell phone and told them what was happening; (4) the relatives called the police, came to the restaurant, and saw the perpetrator drive away; (5) money, a gun, and discarded clothing was recovered from the car or the area where the perpetrator fled on foot; (6) a police officer, who was pursuing the perpetrator, was wounded in an altercation with the perpetrator when the officer's gun discharged; (7) when the defendant later surrendered to the police, DNA from the officer's blood was found on the defendant's chest; and (8) the employees, the relatives, and the officer identified the defendant, a former employee of the restaurant who was fired days before the crime, as the perpetrator. Donald v. State, 312 Ga. App. 222, 718 S.E.2d 81 (2011).
Defendant was properly convicted of felony theft by taking in violation of O.C.G.A. § 16-8-2 because the evidence was sufficient to prove that the indigent defense money the defendant received was the property of a law firm; an agreement existed between the defendant and the firm for the payment of indigent defense monies to the firm. Clarke v. State, 317 Ga. App. 471, 731 S.E.2d 100 (2012).
Evidence including DNA evidence, the victim's testimony regarding the nature of the attack and description of the attacker, and the store surveillance video of an individual who wore clothing similar to that worn by the attacker and who appeared to be the same race as the attacker, supported the defendant's convictions for rape, kidnapping, armed robbery, theft by taking, and three counts of possession of a gun during the commission of a crime. Glaze v. State, 317 Ga. App. 679, 732 S.E.2d 771 (2012).
Victim's testimony that the defendant approached the victim, thrust a gun about six inches from the victim's face, took the victim's cell phone and keys, and told the victim to "get out of here", while waving a gun, was sufficient to support the defendant's convictions for armed robbery, possession of a firearm during the commission of a crime, aggravated assault, and theft by taking. Wright v. State, 319 Ga. App. 723, 738 S.E.2d 310 (2013).
Conviction for theft by taking was supported by evidence that the defendant, without permission from the rightful owner, made use of real property by charging rent to tenants and that the value of the property taken was over $500. Harris v. State, 324 Ga. App. 411, 750 S.E.2d 721 (2013).
Evidence that the defendant and two others pulled the victim over, took the victim's vehicle and gun, grabbed the victim from behind and struck the victim, and took both the victim's vehicle and gun supported the defendant's convictions for robbery and theft by taking. Chambers v. State, 327 Ga. App. 663, 760 S.E.2d 664 (2014).
Evidence that the defendant's DNA was found on a soda can left inside the victim's house after the burglary, the victim's stolen property was found in a house where the defendant was residing, and the defendant fled when officers tried to arrest the defendant was sufficient so support the defendant's convictions for burglary and theft by taking. Barstad v. State, 329 Ga. App. 214, 764 S.E.2d 453 (2014).
Testimony of a store's loss prevention officer as to the price of the phone that was taken was sufficient to support the defendant's felony conviction. Mendez v. State, 327 Ga. App. 497, 759 S.E.2d 574 (2014).
Evidence was sufficient to convict the defendant of false imprisonment, theft by taking, and three counts of battery because the defendant locked the victim in the victim's room, struck the victim in the face, hit the victim in the back of the head with a blunt object, threw the victim to the floor when the victim tried to escape, and took the victim's cellphone. Pierre v. State, 330 Ga. App. 782, 769 S.E.2d 533 (2015), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).
Evidence that the victim and a neighbor saw the defendant sitting on the motorcycle without a helmet minutes after the theft and witnessed the defendant's flight on the motorcycle when the victim's confronted the defendant, supported the defendant's conviction for theft by taking. Newby v. State, 338 Ga. App. 588, 791 S.E.2d 92 (2016).
Evidence that the defendant misled a victim into believing that the defendant was an American father and businessman who was having financial difficulty in Malaysia and needed money to pay a hotel bill so that the defendant would not be arrested and could return to the defendant's children in the United States was sufficient to support a conviction for theft by taking. Akintoye v. State, 340 Ga. App. 777, 798 S.E.2d 720 (2017).
Evidence that the defendant was given a check to deliver to a consultant but deposited the check into the defendant's own account was sufficient for any rational trier of fact to find beyond a reasonable doubt that the defendant had unlawfully appropriated the check, supporting a conviction for theft by taking. Green v. State, 342 Ga. App. 862, 805 S.E.2d 469 (2017).
Circumstantial evidence, including that a house was burglarized, the defendant sold jewelry stolen from the house at two local pawn shops, and the defendant had a car the same as the one seen leaving the house on the day of the burglary, was sufficient to uphold the jury's conclusion that the defendant had committed burglary and theft. Harvey v. State, 344 Ga. App. 761, 811 S.E.2d 479 (2018), cert. denied, No. S18C0930, 2018 Ga. LEXIS 628 (Ga. 2018).
Evidence was sufficient to convict the defendant of theft by taking as the defendant drove away from the scene of the shooting in the vehicle belonging to the victim's girlfriend without the girlfriend's permission and despite the girlfriend's attempts to stop the defendant. Jones v. State, 303 Ga. 496, 813 S.E.2d 360 (2018).
Evidence was sufficient to support the defendant's convictions of exploitation of a disabled adult and theft by taking because the jury was presented sufficient from which the jury could conclude that the defendant acted with guilty knowledge and criminal intent when taking funds from the defendant's mother's account, especially after the defendant became the mother's guardian and the conservator of the mother's assets. The evidence showed that the defendant concealed the required information on the petition for appointment of guardian and/or conservator, the defendant wrote checks and executed transfers from the mother's individual account to joint accounts and then transferred the money to the defendant's individual account and used the money to pay the defendant's personal expenses. Law v. State, 349 Ga. App. 823, 824 S.E.2d 778 (2019).
Evidence including the geographic proximity of the defendant's home to the crime and pawn shop, the temporal proximity of the defendant's visit to the pawn shop after the intrusion, the victim's vehicle being found running across from the pawn shop, the defendant's initial denial of pawning the stolen television, and the lack of evidence about the identity of the person the defendant claimed to have gotten the television from supported robbery for force, burglary, aggravated battery, false imprisonment, and theft by taking convictions. Strickland v. State, 348 Ga. App. 892, 825 S.E.2d 379 (2019).
Evidence that the defendant was hired to perform landscaping work, paid the full contract amount, but only marked the locations for new plantings, sprayed the yard to kill existing grass, and had someone remove shrubs and then refused to complete the work or return the money supported the defendant's conviction for theft by taking. Wilson v. State, 355 Ga. App. 73, 842 S.E.2d 521 (2020).
Evidence was sufficient to support the defendants' convictions for burglary and theft by taking because someone broke into two homes and stole cooking ranges, one of which was recovered at the defendants' home; police recovered computers from the defendants' home, and police found internet advertisements and e-mails related to the sale of the stolen goods on those computers; and the internet account was linked to the second defendant, and the first defendant's e-mails were on the computers. Hamlett v. State, 350 Ga. App. 93, 828 S.E.2d 132 (2019), cert. denied, No. S19C1274, 2019 Ga. LEXIS 860 (Ga. 2019), cert. denied, No. A19C1275, 2019 Ga. LEXIS 890 (Ga. 2019).
Sufficient evidence supported the appellant's convictions on two counts of exploitation of elder person, two counts of theft by taking, and 11 counts of financial-transaction-card fraud based on at least circumstantial evidence that the appellant's mother did not authorize the appellant's near total depletion of various financial accounts by transfers to the appellant's account, ATM withdrawals, money sent to another country, and buying online merchandise, furniture, and jewelry. Anderson v. State, 350 Ga. App. 369, 829 S.E.2d 453 (2019).
Evidence sufficient for theft by taking and racketeering.
- Evidence was sufficient to convict the defendant on 29 counts of theft by taking and racketeering because the defendant, while the director and a fiduciary of the animal shelter, transferred a series of donations intended for the animal shelter into the defendant's own personal bank accounts; the defendant expressly admitted that the subject transactions involved donation money intended for and belonging to the animal shelter; two members of the Board of Directors of the animal shelter testified unequivocally that the defendant was never authorized to solicit funds and deposit the funds into the defendant's personal bank accounts; and the racketeering charge was predicated upon four separate indicted incidents of theft by taking. Kilby v. State, 335 Ga. App. 238, 780 S.E.2d 411 (2015), cert. denied, No. S16C0653, No. S16C0653, 2016 Ga. LEXIS 437 (Ga. 2016).
Sufficient evidence supported the defendant's conviction for theft by taking based on the evidence showing that without authorization from the employer, the defendant wrote numerous checks to the defendant and the defendant's brother that exceeded the pay to which they were entitled and used the employer's bank card to make several unauthorized purchases that were not for business use. Hettrick v. State, 334 Ga. App. 115, 778 S.E.2d 369 (2015).
Evidence was sufficient to convict the defendant of theft by taking because the defendant accepted money from the victim for the purpose of constructing cabinets, did not complete the cabinets or provide the victim with what had been completed, and failed to return any money to the victim; and the jury was authorized to infer that the defendant acted with fraudulent intent and to find the defendant guilty. Graham v. State, 337 Ga. App. 664, 788 S.E.2d 555 (2016).
Evidence sufficient for theft from bank.
- Evidence sustained defendant bank teller's conviction, where defendant's cash drawer showed a $300 shortage and machine tapes indicated that the defendant had given incorrect credit to depositors of checks. Green v. State, 182 Ga. App. 695, 356 S.E.2d 673 (1987).
Although circumstantial in nature, evidence that a defendant had a computerized key that allowed the defendant to access and service ATM machines from which money was taken and that the defendant had used the defendant's access card after hours on those machines was sufficient for a jury to convict the defendant on two counts of theft by taking. Rogers v. State, 292 Ga. App. 90, 663 S.E.2d 789 (2008).
Evidence supported the defendant's conviction of theft by taking. From the defendant's conduct at a bank and the defendant's continued participation in a scheme in which the defendant retained a portion of the money taken from an individual's grandparent's account, the jury could conclude that the defendant was equally involved in the scheme with the individual. Williams v. State, 297 Ga. App. 150, 676 S.E.2d 805 (2009).
Evidence sufficient for theft by taking from employer.
- Evidence that the defendant lied to employer to get initial possession of the employer's car and that the defendant used the car to flee the state was sufficient to authorize conviction for theft by taking. Romano v. State, 233 Ga. App. 149, 503 S.E.2d 380 (1998).
Evidence was sufficient to support the defendant's conviction for theft by taking through the defendant's breach of fiduciary obligations as the evidence showed the defendant, who worked for a construction company, was hired to manage an apartment complex the company had built after the defendant persuaded the company's owner that another man was not trustworthy enough to be hired and thereafter kept some of the rent money the defendant collected from the tenants even though the defendant was supposed to turn that money over to the owner. Leary v. State, 256 Ga. App. 639, 569 S.E.2d 593 (2002).
There was sufficient circumstantial evidence to convict the defendant of theft by taking under O.C.G.A. § 16-8-2 after the defendant was to close the salon and deposit the money at that time; the money was not deposited six times, and the defendant offered inconsistent explanations as to how the money disappeared. Matthews v. State, 257 Ga. App. 886, 572 S.E.2d 391 (2002).
Evidence was sufficient to convict defendant of criminal attempt to commit theft by taking, in violation of O.C.G.A. § 16-8-2 and O.C.G.A. § 16-4-1, when defendant admitted submitting or being involved in submitting false applications for matching fund contributions from defendant's employer to an organization defendant created. Brown v. State, 268 Ga. App. 629, 602 S.E.2d 158 (2004).
Jury was authorized to infer that the defendant, a Federal Highway Administration (FHA) employee, falsified three purchase orders authorizing payment of FHA funds for the defendant's college courses under the pretense that the orders were for supplies and services with knowledge that such payment was not authorized. The evidence was sufficient for the jury to find the defendant guilty of theft by taking in violation of O.C.G.A. § 16-8-2. Brown v. State, 302 Ga. App. 641, 692 S.E.2d 9 (2010).
Theft by taking by misrepresenting oneself as professional.
- Evidence was legally sufficient to support the defendant's convictions for misdemeanor theft in violation of O.C.G.A. § 16-8-2 and for practicing dentistry without a license in violation of an earlier version of O.C.G.A. § 43-11-50, when the defendant held oneself out as a dentist to numerous individuals, obtained loans for business ventures involving a dentistry practice, obtained services for the dentist practice which the defendant did not pay for, and performed services on patients; the jury resolved the credibility and weight of the evidence issues pursuant to former O.C.G.A. § 24-9-80 (see now O.C.G.A. § 24-6-620). McMillan v. State, 266 Ga. App. 729, 598 S.E.2d 17 (2004), overruled in part by Gidwell v. State, 279 Ga. App. 114, 630 S.E.2d 621 (2006).
Theft by taking involving misuse of checks.
- Defendant's conviction for theft by taking was supported by sufficient circumstantial evidence since: (1) the defendant purchased items from a store with a check, returned one of the items, and received an instant credit on the defendant's check card; (2) the defendant then stopped payment on the original check; (3) the defendant's question as to whether there was any way that the matter could be taken care of could have been interpreted as evidence of an intent to deprive the store of the store's property; and (4) the defendant had an invalid cashier's check delivered to the manager to pay for the items. Massey v. State, 269 Ga. App. 152, 603 S.E.2d 431 (2004).
Evidence that the defendant was involved in numerous wire transfers for products or services that were not produced or tendered, thousands of checks made out to different individuals were deposited into the defendant's bank account, and the defendant had two large deposits in the defendant's possession when arrested was sufficient to support the defendant's convictions for theft by taking. Raymond v. State, 322 Ga. App. 404, 745 S.E.2d 689 (2013).
Theft of a utility trailer.
- When the owner of a stolen utility trailer testified that the owner had purchased the utility trailer for $1,100 and had made improvements to the trailer, this testimony alone was sufficient to establish that the trailer had some value at the time the trailer was stolen, which was all that was necessary to sustain a conviction for theft by taking; thus, the defendant was properly convicted of misdemeanor theft by taking. Simmons v. State, 287 Ga. App. 68, 651 S.E.2d 359 (2007).
Evidence supported a conviction for theft by taking of a utility trailer. The jury was authorized to find unsatisfactory the defendant's explanation that the defendant had agreed to buy the trailer from a third party and had taken possession of the trailer but had not paid for the trailer because the third party had not yet given the defendant title documents. Boivin v. State, 298 Ga. App. 411, 680 S.E.2d 415 (2009).
Insufficient amount for felony conviction for theft by taking.
- Although defendant was properly convicted of theft by taking, the evidence was insufficient to prove that the theft was of a felony amount since the witness testified to an amount under $100. Harris v. State, 328 Ga. App. 852, 763 S.E.2d 133 (2014).
Evidence insufficient to support conviction on one count, but sufficient for the others.
- Defendant's convictions on various counts of financial transaction card theft and theft by taking were upheld on appeal as sufficient evidence established that, with regard to the two victims, the defendant was the only possible person to have taken the money and/or credit cards and/or identification cards from one victim's purse and the other victim's center car console. However, one conviction for theft by taking currency was reversed on appeal as the victim who alleged that the defendant stole the victim's wallet testified that the victim never kept cash in the wallet, and the indictment specifically stated that currency was taken. Allen v. State, 293 Ga. App. 439, 667 S.E.2d 215 (2008).
Evidence insufficient to support conviction.
- Defendant could not be convicted of unlawfully appropriating the "property of another" on evidence showing that defendant had been allowed to take a cellular phone from a sales office with only an invoice indicating that payment was due in ten days and that defendant was subsequently billed for this and another purchase made on account. Gill v. State, 197 Ga. App. 558, 398 S.E.2d 833 (1990).
Plaintiff could not recover for theft by taking based on a claim that in purchasing a new car plaintiff was charged for services not received since there was no allegation or evidence that the amounts charged were paid by plaintiff involuntarily. Taylor Auto Group, Inc. v. Jessie, 241 Ga. App. 602, 527 S.E.2d 256 (1999).
Evidence was insufficient to support conviction for theft by taking because the state failed to exclude other explanations for the disappearance of the money in question and the evidence showed nothing more than the defendants' presence in the wrong place at the wrong time. Locklear v. State, 249 Ga. App. 104, 547 S.E.2d 764 (2001).
Because no evidence was presented that defendant converted the victim's funds for defendant's own use or cashed the victim's check and because the state did not exclude every other reasonable hypothesis, the evidence was insufficient to convict defendant of theft by taking, under O.C.G.A. § 16-8-2; consequently, the trial court erred in denying defendant's motion for a directed verdict of acquittal. Hydock v. State, 275 Ga. App. 122, 619 S.E.2d 807 (2005).
Evidence did not support the finding that a juvenile defendant had committed theft by taking. Although there was circumstantial evidence that the defendant had a key to the home from which items were taken and had been in and out of the home at the time of the theft, the defendant testified that the defendant had left the door unlocked and returned to the home to find the home ransacked; the circumstantial evidence supported the defendant's version of the facts as well as the state's and thus did not warrant a finding of guilt under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6). In the Interest of M.H., 288 Ga. App. 663, 655 S.E.2d 249 (2007).
Because the evidence failed to support a finding that the defendant, a mortgage consultant, did not intend to perform the services paid for by a client, only that conviction, out of eight entered by the jury, and the restitution order attached to the conviction, had to be reversed. Patterson v. State, 289 Ga. App. 663, 658 S.E.2d 210 (2008).
Evidence was insufficient to convict the defendant of criminal attempt to commit theft by taking by a fiduciary as the relationship between the defendant and the employer was merely that of employer-employee because, although the defendant was responsible for creating invoices, the defendant did not have authority to act for the employer beyond weighing the metals and assigning to the weight a dollar amount that had been previously fixed by the employer; and the defendant could not negotiate with the customers or independently determine how much the metals were worth; thus, although the conviction for criminal attempt to commit theft by taking stood, the felony sentence, based on the defendant being a fiduciary, was reversed. Scott v. State, 344 Ga. App. 412, 810 S.E.2d 613 (2018).
Evidence supporting robbery by force.
- Evidence that defendant grabbed cashier's arm when the cashier opened cash register to give defendant change was sufficient to support a conviction of robbery by force, rather than theft by taking, even if the cashier managed to escape defendant's grasp before defendant took any money from the register. Garner v. Victory Express, Inc., 214 Ga. App. 652, 448 S.E.2d 719 (1994).
Theft by taking motor vehicle.
- Defendant's motion for a directed verdict of acquittal in trial for theft by taking a motor vehicle was properly denied because the jury properly assessed the evidence, although conflicting, and found each fact necessary to make out the state's case; trial counsel failed to preserve error regarding exclusion of a portion of the victim's videotaped interview; and a photographic lineup included people of the same general age and race as defendant and was not impermissibly suggestive. Sherls v. State, 272 Ga. App. 152, 611 S.E.2d 780 (2005).
Defendant, who was the executrix of a will, was properly found guilty of theft by taking under O.C.G.A. § 16-8-2 of estate funds because unexplained counter and ATM withdrawals from two estate accounts totaling over $100,000 were made and over $75,000 was deposited into the defendant's personal bank account during the same time period. Christian v. State, 288 Ga. App. 546, 654 S.E.2d 452 (2007), overruled on other grounds by Williams v. State, 838 S.E.2d 235, 2020 Ga. LEXIS 50 (Ga. 2020).
Identity of owner not required in theft of motor vehicle.
- Although a vehicle stolen by two defendants from the person who was sitting in the vehicle was owned by a third person who did not testify, the identity of the owner was not a material element of the crime that was required to be alleged and proved under O.C.G.A. § 16-8-2. Kollie v. State, 301 Ga. App. 534, 687 S.E.2d 869 (2009).
Evidence was sufficient to support the defendant's conviction for theft by taking because, although the victim testified that the victim told the defendant to "take everything" prior to escaping from the defendant, there was evidence from which a reasonable juror could conclude that the defendant had already taken the victim's car and that the victim's subsequent relinquishment of the car was not done willingly; when the defendant drove away and returned on foot only after parking the vehicle at the defendant's cousin's house, the jury was authorized to find that the defendant intended to deprive the victim of the car's use, if even temporarily. Payne v. State, 301 Ga. App. 515, 687 S.E.2d 851 (2009).
Insufficient evidence of theft by taking of motor vehicle.
- In a juvenile's adjudication as delinquent for theft by taking the juvenile's sister's car, although the juvenile admitted taking the car, the state failed to prove venue and failed to prove that the taking was unlawful as required by O.C.G.A. § 16-8-2. The officer's testimony that the sister said the taking was without the sister's permission was inadmissible hearsay and was insufficient to support the adjudication even though the evidence was admitted without objection. In the Interest of E.C., 311 Ga. App. 549, 716 S.E.2d 601 (2011).
Evidence that a defendant showed an interest in a car that was for sale and took a test drive and returned the car, that the car was stolen the next day, that the defendant was found driving the car hours after the car was stolen using a duplicate key, and that the defendant fled from an officer was sufficient to authorize the defendant's conviction for theft by taking (automobile) in violation of O.C.G.A. § 16-8-2(a). Kelly v. State, 313 Ga. App. 582, 722 S.E.2d 175 (2012).
Jury Instructions
Charging entire statute.
- Trial court did not err in charging the jury with the entirety of the theft by taking statute. Wilson v. State, 211 Ga. App. 486, 439 S.E.2d 701 (1993).
Charge that jury might infer intent from proof of defendants' acts did not constitute error as impermissibly shifting burden to defendant. Rittenberry v. State, 155 Ga. App. 213, 270 S.E.2d 379 (1980).
When purchaser of goods not chargeable under section.
- When the sole "interest" that the merchants had in the goods was a right to future payment pursuant to the sales contract, the property did not belong to "another," and the defendant could not be charged under former Code 1933, § 26-1802 (see now O.C.G.A. § 16-8-2), unless the facts fell within the rule that if one, meaning to steal another's goods, fraudulently prevails on the latter to deliver the goods to that person, under the understanding that the property in them is to pass, the person commits neither larceny nor any other crime by the taking, unless the transaction amounts to an indictable cheat. Elliott v. State, 149 Ga. App. 579, 254 S.E.2d 900 (1979).
Failure to charge on theft by taking required new trial.
- When the evidence on behalf of the defendant denied the charge of armed robbery, and was such that it would have authorized the jury to find the defendant guilty of either of the two lesser offenses of robbery by intimidation or theft by taking, the failure of the trial court to charge on robbery by intimidation and theft by taking required the grant of a new trial. Hensley v. State, 228 Ga. 501, 186 S.E.2d 729 (1972).
Evidence showing both unlawful taking and unlawful conversion.
- It is reversible error to authorize in charge conviction of unlawful taking based upon evidence also showing unlawful conversion. Robinson v. State, 152 Ga. App. 296, 262 S.E.2d 577 (1979).
When there is no evidence whatsoever to authorize the jury to find misdemeanor grade of theft by taking (value of the goods taken being $100.00) (now $200.00 or less) the court does not err in failing to charge the jury they might recommend the defendant be punished for a misdemeanor under the charge. Richardson v. State, 144 Ga. App. 416, 240 S.E.2d 917 (1977).
Judge is not required to charge jury on lesser offense of criminal trespass in the absence of a specific request by defense counsel. Martin v. State, 143 Ga. App. 875, 240 S.E.2d 231 (1977).
When not error to fail to charge on theft by taking.
- When the state's evidence requires a verdict of guilty of robbery by sudden snatching, and the defendant's evidence if believed would require an acquittal on the ground of mistaken identity, it is not error to fail to charge on the offense of theft by taking. Hinton v. State, 127 Ga. App. 108, 192 S.E.2d 717 (1972); Teague v. State, 169 Ga. App. 285, 312 S.E.2d 818 (1983), aff'd, 252 Ga. 534, 314 S.E.2d 910 (1984).
Defendant's claim of error in the failure to instruct the jury on theft by taking was rejected as the defendant failed to request an instruction on theft by taking as a lesser included offense of robbery. Young v. State, 280 Ga. 65, 623 S.E.2d 491 (2005).
Because the elements of theft by taking could not be inferred from the defendant's testimony, the trial court did not err in denying the defendant's requested instruction on the same as a lesser included offense; moreover, any error in failing to give this requested instruction was harmless given the overwhelming evidence that the defendant committed a burglary. Goldberg v. State, 280 Ga. App. 600, 634 S.E.2d 419 (2006), aff'd, 282 Ga. 542, 651 S.E.2d 667 (2007).
Because the undisputed facts showed that the victim was conscious of the crime as the crime was being committed, the trial court's refusal to charge the jury on theft by taking as a lesser-included offense of robbery by snatching was not erroneous. Bettis v. State, 285 Ga. App. 643, 647 S.E.2d 340 (2007), cert. denied, No. S07C1535, 2007 Ga. LEXIS 862 (Ga. 2007).
Because the trial court properly instructed the jury on both the crimes of armed robbery and theft by taking, and expressly stated that in the event that it did not believe that the defendant was guilty of armed robbery beyond a reasonable doubt, it could convict on the lesser offense of theft by taking, given that the evidence was sufficient to authorize a finding of guilt on the armed robbery charge, the jury was authorized to reject the defendant's claim that the victim knowingly assisted in the planning and perpetration of the crime. Hester v. State, 287 Ga. App. 434, 651 S.E.2d 538 (2007).
Because a defendant either committed burglary or committed no crime at all, a charge on the lesser included offense of theft by taking was not required. Holt v. State, 293 Ga. App. 477, 667 S.E.2d 645 (2008).
Trial court did not err in refusing to give an instruction on theft by taking as a lesser included offense of robbery by sudden snatching as the victim's testimony was sufficient to support the charge of robbery by snatching and the defense was that another individual committed the crime. Copeland v. State, 325 Ga. App. 668, 754 S.E.2d 636 (2014).
Trial court did not err by failing to charge the jury on unarmed robbery or theft by taking as lesser-included offenses to armed robbery in light of the overwhelming evidence of the defendant's guilt and the failure to give the lesser-included instructions neither created any reasonable likelihood that the state's burden of proving all essential elements of armed robbery was lessened, or that the charge as given likely affected the outcome of the proceedings. Boccia v. State, 335 Ga. App. 687, 782 S.E.2d 792 (2016).
Not error not to charge theft by taking unless evidence authorizes such.
- It is not error to fail to charge the defendant with theft by taking, as a lesser offense included in a charge of armed robbery or robbery by intimidation, unless the evidence authorizes a finding of the lessor offense. Sanders v. State, 135 Ga. App. 436, 218 S.E.2d 140 (1975).
Theft by taking charge justified.
- Since entering an automobile was a lesser-included offense of theft by taking as a matter of fact, the trial court did not err in instructing the jury on the lesser-included offense where the facts supported both offenses. Williams v. State, 255 Ga. App. 775, 566 S.E.2d 477 (2002).
Armed robbery properly charged.
- Person who commits armed robbery is not necessarily entitled to obtain charge as to theft by taking. Shepherd v. State, 234 Ga. 75, 214 S.E.2d 535 (1975).
When the state's evidence clearly warranted a charge on armed robbery, which was given, and there was no evidence of the lesser offense of theft by taking, there was no error in failing to give the requested charge. Shepherd v. State, 234 Ga. 75, 214 S.E.2d 535 (1975); Edwards v. State, 209 Ga. App. 304, 433 S.E.2d 619 (1993).
Failure to give limiting instructions as to "unlawful taking."
- When the state charged the defendant with "unlawful taking" method of theft by taking, the trial court committed reversible error in giving the entirety of O.C.G.A. § 16-8-2 in a charge to the jury, emphasizing and explaining words in a method of commission of the offense which was not charged, and failing to give a limiting instruction concerning which method could be considered by the jury. Gaines v. State, 177 Ga. App. 795, 341 S.E.2d 252 (1986).
Failure to charge on affirmative defense.
- Trial court did not err in failing to charge the jury that an affirmative defense to a prosecution for theft by a public officer arose if the defendant, a sheriff, acted under an honest claim of right to the property or service involved pursuant to O.C.G.A. § 16-8-10(2), because the defendant could not have had an honest claim of right to the county's property. Dorsey v. State, 279 Ga. 534, 615 S.E.2d 512 (2005).
Failure to charge jury on issue of character of defendant was reversible error, where defendant's character was an issue in the trial of the case. Chastain v. State, 177 Ga. App. 236, 339 S.E.2d 298 (1985).
No possibility jury based verdict on incorrect theory.
- Since the court did not charge the jury that theft by taking could consist of the unlawful appropriation of property lawfully obtained, and thus there was no possibility that the jury based its verdict on that theory rather than the theory alleged in the indictment - theft by taking, the state's evidence, was amply sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that at the time defendant made the withdrawals at issue, the defendant was well aware that defendant was obtaining funds which did not belong to defendant and which defendant had no right to receive. Mullen v. State, 203 Ga. App. 170, 416 S.E.2d 784 (1992).
Instruction to infer guilt based on recent possession.
- Trial court's instruction to the jurors that they could infer defendant's guilt to robbery or auto theft from defendant's possession of a victim's car keys unless there was a reasonable explanation for that possession did not unconstitutionally shift the burden of proof to defendant. Johnson v. State, 277 Ga. 82, 586 S.E.2d 306 (2003).
While the evidence was sufficient to support the defendant's conviction of theft by taking of a motor vehicle under O.C.G.A. § 16-8-2, the trial court's jury charge - regarding an inference arising from the defendant's recent possession of a stolen truck - effectively shifted the burden of persuasion to the defendant in violation of the due process clause; the error was not harmless as the error applied to an element of the crime that was at issue in the trial: whether the defendant was the person who stole the truck. Ward v. State, 312 Ga. App. 609, 718 S.E.2d 915 (2011).
Charge barred by statute of limitations.
- Trial court did not err by granting the defendant's motion for plea in bar dismissing the charges of conversion of sales and use taxes, theft by taking, and false swearing against the defendant because the charges were not brought within four years of the dates on which the crimes were allegedly committed as required by O.C.G.A. § 17-3-1. State v. Crowder, 338 Ga. App. 642, 791 S.E.2d 423 (2016).
Charge not warranted.
- When the state's evidence established all of the elements of burglary and defendant, testifying in defendant's own behalf, admitted all of the allegations of the indictment, the lesser included offense of theft by taking was not raised by the evidence and it was not error to fail to charge the jury on this lesser crime as a possible verdict. Crawford v. State, 181 Ga. App. 454, 352 S.E.2d 635 (1987).
Trial court did not err in failing to instruct the jury that the amount of cash stolen could have been less than $500.00 because defense counsel specifically agreed that no charge on the value of the stolen money was necessary and because the undisputed evidence revealed that the amount of money stolen was more than $500.00. Turner v. State, 276 Ga. App. 620, 624 S.E.2d 244 (2005).
While the prosecution against the defendant on charges of burglary, theft by taking, and criminal trespass included both direct and circumstantial evidence, convictions on those charges were not reversed merely because the trial court failed to charge former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6) as the defendant failed to request that charge. Rodriguez v. State, 283 Ga. App. 752, 642 S.E.2d 705 (2007).
Evidence did not support a charge on theft by taking, O.C.G.A. § 16-8-2, as a lesser included offense of robbery by sudden snatching, O.C.G.A. § 16-8-40(a)(3), because the evidence showed that the victim was conscious of the crime as the crime was being committed; even if the victim did not actually see the defendant pick up the wallet, when the victim saw the defendant running toward the exit of a store with the wallet the victim gave chase but was unable to stop the defendant. Brown v. State, 309 Ga. App. 511, 710 S.E.2d 674 (2011).
Jury charge held proper.
- Jury instruction stating, "A person commits the offense of theft by taking when that person unlawfully takes any property of another with the intention of depriving the other person of the property regardless of the manner in which the property is taken or appropriated," was proper. Taken as a whole, the charge conformed to the indictment and stated the law accurately when the charge omitted the possibility that the defendant had misappropriated money after having lawful possession of the money. Dudley v. State, 287 Ga. App. 794, 652 S.E.2d 840 (2007), cert. denied, No. S08C0319, 2008 Ga. LEXIS 168 (Ga. 2008).
Punishment
Classification of punishment determined by value of property taken.
- There are not two crimes of theft by taking, one being a misdemeanor and the other being a felony. There is only one such crime, and upon conviction for it, the punishment only is determined by the value of the property taken. Mack v. Ricketts, 236 Ga. 86, 222 S.E.2d 337 (1976).
Value was not an element of the crime of theft by taking as proscribed by former Code 1933, § 26-1802 (see O.C.G.A. § 16-8-2), the value of stolen items was relevant only for purposes of distinguishing between a misdemeanor and a felony. Stancell v. State, 146 Ga. App. 773, 247 S.E.2d 587 (1978); Hight v. State, 221 Ga. App. 574, 472 S.E.2d 113 (1996).
Value is not element, per se, of statute defining theft by taking. Value, is however, relevant in ascertaining punishment to be imposed. Thus, value can be an issue in any theft case, in the same manner as an element of the substantive offense itself. Bryan v. State, 148 Ga. App. 428, 251 S.E.2d 338 (1978); Wilson v. Reed, 246 Ga. 743, 272 S.E.2d 699 (1980).
While defendant claimed the trial court erred in sentencing defendant for felony theft by taking because the evidence was insufficient to show the property stolen exceeded $500, defense counsel conceded at trial that the victim's testimony that the victim had over $600 in the victim's purse provided sufficient evidence to support felony sentencing. Grindle v. State, 265 Ga. App. 717, 595 S.E.2d 549 (2004).
Despite the defendant's claim that reversible error was premised on the state's failure to comply with the required notice upon filing two charges of felony theft by taking, as the indictment failed to specifically allege either that the value of the items stolen exceeded $500, or that the items were motor vehicles, Georgia law did not establish two classifications for theft by taking crimes, but a determination as to the felony or misdemeanor status of a charge was based on the value of the property taken; moreover, because the defendant failed to furnish the appellate court with a transcript, it was left with no other alternative but to presume the trial judge properly considered the evidence in imposing sentence. Conley v. State, 281 Ga. App. 841, 637 S.E.2d 438 (2006), cert. denied, No. S07C0315, 2007 Ga. LEXIS 67 (Ga. 2007).
Defendant's felony sentence for theft by taking under O.C.G.A. §§ 16-8-2 and16-8-12(a) had to be vacated because, although the state proved that the defendant took certain software belonging to the defendant's employer, which the defendant was not permitted to copy, the state failed to prove the value of the software so the defendant could only receive a misdemeanor sentence; the value of the software was not an element of the crime but only determined whether the defendant was punished for a felony or a misdemeanor. DuCom v. State, 288 Ga. App. 555, 654 S.E.2d 670 (2007), cert. denied, No. S08C0598, 2008 Ga. LEXIS 383 (Ga. 2008).
Though there was sufficient evidence to support a finding that a juvenile committed an act of theft by taking, because the state failed to offer evidence as to the stolen property's value, the juvenile court erred in finding that the juvenile committed an act of felony theft by taking. Thus, the case required a remand for an adjudication of delinquency and a disposition thereof to be entered against the juvenile for committing an act which would have supported a conviction for the offense of misdemeanor theft by taking since the value of the stolen property only was relevant as to the conviction's classification as a felony versus a misdemeanor. In the Interest of J. S., 296 Ga. App. 144, 673 S.E.2d 645 (2009).
Defendant, who was convicted of theft by taking of eight or nine aluminum tire rims, was properly sentenced for felony theft because the prosecution established that the value of the rims exceeded $500 since lay testimony of the victim provided that used rims were valued at between $150 and $175 each so that the total value of the eight to nine rims taken exceeded $1,000. Perdue v. State, 300 Ga. App. 588, 685 S.E.2d 489 (2009).
Trial court did not err in imposing a felony sentence pursuant to O.C.G.A. § 16-8-12(a)(1) after the defendant was convicted of theft by taking in violation of O.C.G.A. § 16-8-2 for stealing lumber and other materials from a builder's job site because the evidence was sufficient for the trial court to determine that the fair cash market value of the property at the time and place of the theft exceeded $500 when according to the builder, the cost of the materials was $450, and the cost of the labor to construct the jigs was approximately $200, bringing the total value of the stolen property to $650; the builder clearly established knowledge, experience, and familiarity with the value of the property and, thus, established reasons for the value, having an opportunity for forming such an opinion. Partin v. State, 302 Ga. App. 589, 692 S.E.2d 32 (2010).
Felony sentence imposed by the trial court was vacated, and the case was remanded because, although the State of Georgia proved beyond a reasonable doubt that the defendant committed the offense of theft by taking under O.C.G.A. § 16-8-2, as the owner of the stolen property testified as to seeing the defendant take the property, the state's evidence was insufficient under O.C.G.A. § 16-8-12 to establish that the current fair market value of the stolen items exceeded $500. Porter v. State, 308 Ga. App. 121, 706 S.E.2d 620 (2011).
Charge of receiving stolen goods is equal charge to theft by taking and punishment is same. McRoy v. State, 131 Ga. App. 307, 205 S.E.2d 445 (1974).
Theft by taking a motor vehicle.
- O.C.G.A. § 16-8-12(a)(5)(A) allowed the trial court to sentence defendant to not less than one nor more than 20 years' imprisonment for theft of a motor vehicle, and the court properly sentenced defendant to 10 years' imprisonment even though the state did not offer evidence to prove the value of the vehicle defendant took. Martin v. State, 266 Ga. App. 190, 596 S.E.2d 705 (2004).
Pretrial intervention program on related charges did not bar prosecution.
- Prosecution of the defendants for theft by taking and criminal trespass in Calhoun County, O.C.G.A. §§ 16-7-21(b) and16-8-2, was not prohibited by double jeopardy based on their prior entry into a pretrial intervention program under O.C.G.A. § 15-18-80(b) following charges of theft by receiving stolen property, O.C.G.A. § 16-8-7(a), in Irwin County because there was no prosecution in Irwin County within the meaning of O.C.G.A. §§ 16-1-3(14) and16-1-8(a)(1)-(2). Palmer v. State, 341 Ga. App. 433, 801 S.E.2d 300 (2017).
Separate sentences for separate offenses.
- Given that an indictment properly charged the defendant with committing two thefts, approximately one year apart, involving property from two different owners and each requiring proof of facts or elements not required to establish the other offense, those offenses were distinct and separate enough that imposition of a sentence for each crime was proper. Conley v. State, 281 Ga. App. 841, 637 S.E.2d 438 (2006), cert. denied, No. S07C0315, 2007 Ga. LEXIS 67 (Ga. 2007).
Sentence as a recidivist proper.
- Upon convictions for armed robbery, possession of a firearm during the commission of a crime, and theft by taking, the trial court did not err in denying a motion to vacate an illegal sentence, despite the claim that the defendant was improperly punished as a recidivist, as nothing supported the argument that the defendant received an enhanced punishment based on an uncertified, non-final disposition from the State of Louisiana; moreover, a trial court was authorized to sentence a defendant to life imprisonment for armed robbery, even when that defendant was not a recidivist. Jefferson v. State, 279 Ga. App. 97, 630 S.E.2d 528 (2006).
Trial court did not err in considering the defendant's prior guilty plea in sentencing the defendant as a recidivist after the defendant was convicted of felony theft by taking because the state, by tendering the certified copy of the plea, met the state's initial burden of proving that the defendant had entered the guilty plea. Sheppard v. State, 300 Ga. App. 631, 686 S.E.2d 295 (2009).
Trial court did not err in imposing maximum and consecutive sentences on the second defendant for the burglary and theft by taking convictions as the second defendant's prior convictions for three or more felonies qualified the second defendant to be sentenced as a recidivist, requiring the second defendant to be sentenced to the maximum time allowed; the sentences were within the statutory ranges; and the trial court had the authority to require that the sentences run consecutively. Hamlett v. State, 350 Ga. App. 93, 828 S.E.2d 132 (2019), cert. denied, No. S19C1274, 2019 Ga. LEXIS 860 (Ga. 2019), cert. denied, No. A19C1275, 2019 Ga. LEXIS 890 (Ga. 2019).
Scrivener's error was held moot.
- Because a scrivener's error regarding the sentence entered upon the defendant's plea to five counts of theft by taking had already been corrected by the trial court, the sentence imposed was upheld, and any claim of error was rendered moot. Manley v. State, 287 Ga. App. 358, 651 S.E.2d 453 (2007), cert. denied, 2008 Ga. LEXIS 94 (Ga. 2008).
Juvenile's sentence under O.C.G.A.
§ 15-11-63 vacated. - Although the state argued that a juvenile had been adjudicated on five separate petitions setting out five separate felonies, because the record revealed that adjudication had occurred on only two prior occasions for acts which, if done by an adult, would have been felonies, the juvenile's sentence under O.C.G.A. § 15-11-63(a)(2)(B)(vii) was vacated, and the case was remanded for resentencing. In the Interest of P.R., 282 Ga. App. 480, 638 S.E.2d 898 (2006).
Evidence sufficient for juvenile's delinquency adjudication.
- Testimony from the victims of three auto thefts, along with statements given by defendant juvenile, were legally sufficient to support the defendant's delinquency adjudication for acts which, if committed by an adult, would constitute the crimes of burglary and theft by taking-vehicle. In the Interest of E.J., 292 Ga. App. 69, 663 S.E.2d 411 (2008).
Merged counts for sentencing.
- Two counts of armed robbery and two counts of theft by taking should have been merged into one armed robbery conviction. When a single victim was robbed of multiple items in a single transaction, there was only one robbery, and the same evidence was used to prove both the theft and the armed robbery charges. Wells v. State, 294 Ga. App. 277, 668 S.E.2d 881 (2008).
Sentence of 111 years proper.
- When the defendant was convicted of aggravated assault, burglary, theft by taking, and carrying a concealed weapon, the trial court properly imposed a 111-year sentence of imprisonment, which was within the statutory limits and which was the maximum possible. The presumption of vindictiveness was absent when a trial court imposed a greater penalty after trial than the court would have after a guilty plea; furthermore, the trial court explained that the court imposed the sentence because the defendant's actions were life-threatening, because the jury convicted the defendant of entering the dwelling with intent to commit murder because the defendant's actions against one victim, the defendant's parent, had escalated from the defendant's previous misdemeanor crimes against the parent, and because the defendant displayed no remorse. Townes v. State, 298 Ga. App. 185, 679 S.E.2d 772 (2009).
Alien's sentence and impact on immigration sentence.- After an alien was sentenced to a four-year confinement term, to be served on probation, for a Georgia felony theft by taking conviction, the four-year probationary period the alien served for the sentence counted toward the alien's term of imprisonment for purposes of applying 8 U.S.C. § 1101(a)(43)(G). The Board of Immigration Appeals and the immigration judge correctly found that the alien qualified as an aggravated felon, removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Amaya-Flores v. United States AG, 595 Fed. Appx. 958 (11th Cir. Dec. 29, 2014)(Unpublished).
Sentence differing from plea agreement.
- Following the state agreeing to dismiss the RICO and theft charges against the defendant in exchange for a guilty plea to one misdemeanor count of hindering and obstructing a law enforcement officer conditioned upon the defendant testifying truthfully at the trial against the co-defendants, the trial court erred by imposing a sentence upon the defendant which differed from the understood terms of the negotiated plea. Lewis v. State, 330 Ga. App. 412, 767 S.E.2d 771 (2014).
Restitution order proper.
- Defendant, who pled guilty to theft by taking under O.C.G.A. § 16-8-2, could not argue that the trial court failed to consider the factors in O.C.G.A. § 17-14-10 in making a restitution order as the defendant did not meet the burden of proof under O.C.G.A. § 17-14-7 in establishing the defendant's expenses as the defendant only told the court that the defendant had to make monthly payments; the defendant made no response when asked if the defendant could make house payments and the like if half the defendant's monthly income was applied to the restitution order. Wimpey v. State, 297 Ga. App. 182, 676 S.E.2d 831 (2009).
OPINIONS OF THE ATTORNEY GENERALFormer Code 1933, should not be used to attempt to collect a debt owed to the Department of Transportation; the legislature did not intend that a criminal proceeding be used in this manner. 1969 Op. Att'y Gen. No. 69-505.
Department may bring criminal proceedings against condemnee under former Code 1933, § 26-1802 (see O.C.G.A. § 16-8-2) if condemnee severs trade fixtures from a condemned parcel of property and carries them away, even though such fixtures are paid for by the department in condemnation proceedings. 1969 Op. Att'y Gen. No. 69-505.
RESEARCH REFERENCES
Am. Jur. 2d.
- 50 Am. Jur. 2d, Larceny, § 13.
C.J.S.- 52B C.J.S., Larceny, §§ 1 et seq., 15, 85, 88.
ALR.
- Appropriation of property after obtaining possession by fraud as larceny, 26 A.L.R. 381.
Assisting in transportation or disposal of property known to have been stolen as rendering one guilty of larceny, 29 A.L.R. 1031.
Larceny or embezzlement by one spouse of other's property, 55 A.L.R. 558.
What amounts to embezzlement or larceny within fidelity bond, 56 A.L.R. 967.
Acceptance of defendant's note or other contractual obligation as affecting charge of embezzlement or larceny, 70 A.L.R. 208.
Appropriation or removal without payment of property delivered in expectation of immediate cash payment, as criminal offense, 83 A.L.R. 441.
Offense of larceny, embezzlement, robbery, or assault to commit robbery, as affected by defendant's intention to take or retain money or property in payment of, or as security for, a claim, or to collect a debt, or to recoup gambling losses, 116 A.L.R. 997.
Distinction between larceny and embezzlement, 146 A.L.R. 532.
Gambling or lottery paraphernalia as subject of larceny, burglary, or robbery, 51 A.L.R.2d 1396.
Embezzlement by independent collector or collection agency working on commission or percentage, 56 A.L.R.2d 1156.
Taking and pledging or pawning, another's property as larceny, 82 A.L.R.2d 863.
Criminal responsibility for embezzlement from corporation by stockholder owning entire beneficial interest, 83 A.L.R.2d 791.
Automobiles: elements of offense defined in "joyriding" statutes, 9 A.L.R.3d 633.
Criminal prosecution based upon breaking into or taking money or goods from vending machine or other coin-operated machine, 45 A.L.R.3d 1286.
Construction and effect, in false imprisonment action, of statute providing for detention of suspected shoplifters, 47 A.L.R.3d 998.
What amounts to "exclusive" possession of stolen goods to support inference of burglary or other felonious taking, 51 A.L.R.3d 727.
Changing of price tags by patron in self-service store as criminal offense, 60 A.L.R.3d 1293.
Asportation of motor vehicle as necessary element to support charge of larceny, 70 A.L.R.3d 1202.
Receiver of stolen goods as accomplice of thief for purposes of corroboration, 74 A.L.R.3d 560.
Retaking of money lost at gambling as robbery or larceny, 77 A.L.R.3d 1363.
Validity and construction of statute providing criminal penalties for failure of contractor who has received payment from owner to pay laborers or materialmen, 78 A.L.R.3d 563.
Embezzlement, larceny, false pretenses, or allied criminal fraud by a partner, 82 A.L.R.3d 822.
Modern status: instruction allowing presumption or inference of guilt from possession of recently stolen property as violation of defendant's privilege against self-incrimination, 88 A.L.R.3d 1178.
Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 A.L.R.3d 1309.
What constitutes "recently" stolen property within rule inferring guilt from unexplained possession of such property, 89 A.L.R.3d 1202.
Criminal liability for theft of, interference with, or unauthorized use of, computer programs, files, or systems, 51 A.L.R.4th 971.
Joyriding or similar charge as lesser-included offense of larceny or similar charge, 78 A.L.R.5th 567.
What constitutes tax-deductible theft loss under 26 USCS § 165, 98 A.L.R. Fed. 229.
What constitutes violation of 15 USCS § 714m(c), proscribing larceny or conversion of property owned by or pledged to Commodity Credit Corporation, 109 A.L.R. Fed. 871.
State criminal prosecution against medical practitioner for fraud in connection with claims under Medicaid, Medicare, or similar welfare program for providing medical services, 79 A.L.R.6th 125.