Gilliland v. State

755 S.E.2d 249, 325 Ga. App. 854, 2014 Fulton County D. Rep. 502, 2014 WL 783555, 2014 Ga. App. LEXIS 86
CourtCourt of Appeals of Georgia
DecidedFebruary 28, 2014
DocketA13A1982
StatusPublished
Cited by3 cases

This text of 755 S.E.2d 249 (Gilliland v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilliland v. State, 755 S.E.2d 249, 325 Ga. App. 854, 2014 Fulton County D. Rep. 502, 2014 WL 783555, 2014 Ga. App. LEXIS 86 (Ga. Ct. App. 2014).

Opinion

MCFADDEN, Judge.

Grady Edward Gilliland was convicted of felony shoplifting for taking a cellular phone from a retail cellular phone store. He argues on appeal that the trial court erred in denying his motion for directed verdict and in giving two jury charges to which he failed to object at trial. As detailed below, we find that the evidence was sufficient to support his conviction and that Gilliland has not shown that the jury charges constituted plain error. Accordingly, we affirm.

1. Directed verdict.

Gilliland argues that the trial court erred in denying his motion for directed verdict on the shoplifting offense, because the state did not present evidence that he committed the offense of shoplifting in the manner alleged in the accusation against him. Under OCGA § 16-8-14, a person commits the offense of theft by shoplifting, among other ways,

when such person alone or in concert with another person, with the intent of appropriating merchandise to his or her own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, . . . [c] onceáis or takes possession of the goods or merchandise of any store or retail establishment.

OCGA § 16-8-14 (a) (1). In the accusation, however, the state accused Gilliland of committing shoplifting by taking possession of the phone, but not of concealing it.

We review the denial of a motion for directed verdict under the same standard as that for reviewing the sufficiency of the evidence to support a conviction. Haney v. State, 261 Ga. App. 136, 137 (1) (581 SE2d 626) (2003). “Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citations omitted). In this case, we apply that standard to determine whether the state presented sufficient evidence to show that Gilliland took possession of the phone, as alleged in the accusation.

Viewed in the light most favorable to the jury’s verdict, the evidence showed that on January 8,2011, a display model of a cellular phone disappeared from a retail cellular phone store. Although it was a display, the phone had service and could be used. According to a store sales representative, that model of phone sold at retail for between $450 and $500.

[855]*855A video surveillance recording that was played to the jury showed a man standing near the phone for several minutes, “working, playing with it, [and] operating it.” Trial witnesses pointed out a place on the recording that depicted the man detaching the phone from the display stand and placing it in his pocket.

The man shown on the surveillance recording had done business with the store earlier that day, and store employees were able to identify him as Gilliland both on the day of the theft and later at trial. The store owner provided the police with Gilliland’s name and contact information, and the investigating detective arranged with Gilliland to meet on the afternoon of January 19, 2011 to discuss “an incident that occurred at the ... store.” The afternoon of January 19, Gilliland called the detective to confirm the meeting. Also that afternoon, another man went to the cellular phone store and spent some time sitting in a chair in the store’s service waiting area. His behavior caught the attention of store employees, and after he left the store, employees discovered the missing phone under the chair where he had been sitting. The store owner testified that the phone had been missing from the store between January 8 and January 19.

Gilliland argues that this evidence was insufficient because it showed only that he concealed the phone, not that he took possession of it as alleged in the accusation. We disagree. The state introduced circumstantial evidence that Gilliland took possession of the phone, namely that he removed it from its display stand and placed it in his pocket on January 8, that from that point until January 19 the phone was missing from the store, and that on January 19 the phone reemerged in the store, apparently having been left there by another person around the time that Gilliland was scheduled to meet a police detective to talk about the case. From this circumstantial evidence, “the jury could have concluded that [Gilliland] removed [the phone] from the store without paying for [it], thereby taking possession of [the phone] for [his] own use without paying for [it] within the meaning of the statute.” Sustakovitch v. State, 249 Ga. 273, 274-275 (1) (290 SE2d 77) (1982), overruled in part on other grounds by Catoosa County v. R. N. Talley Properties, 282 Ga. 373, 374 (651 SE2d 7) (2007). See former OCGA § 24-4-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”);1 Haney, 261 Ga. App. at 138 (1) (“Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the [856]*856accused is primarily a question for determination by the jury.”) (citations and punctuation omitted).

2. Jury charges.

Gilliland claims that the trial court erred in two of its charges to the jury. He argues that a charge setting forth the elements of shoplifting erroneously instructed the jury that the offense could be committed in a manner not alleged in the accusation against him, and that a supplemental charge, given in response to a question from the jury, erroneously instructed the jury that it could consider the wholesale value of the phone taken from the store. Gilliland did not object to either charge at trial, and as detailed below, we find no plain error in either charge.

(a) Application of plain error analysis.

Because Gilliland did not object at trial to either of the jury charges that he now claims were error, we analyze them only for plain error as provided for in OCGA § 17-8-58. Under that Code section, a party’s failure to object to a portion of the jury charge “shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the [trial] court’s attention[.]” OCGA § 17-8-58 (b). See State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011) (under OCGA § 17-8-58 (b), whenever a party asserts on appeal an error injury instructions, “appellate review for plain error is required”). In reviewing for plain error,

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Cite This Page — Counsel Stack

Bluebook (online)
755 S.E.2d 249, 325 Ga. App. 854, 2014 Fulton County D. Rep. 502, 2014 WL 783555, 2014 Ga. App. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilliland-v-state-gactapp-2014.