THIRD DIVISION MILLER, P. J., RAY and BRANCH, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 1, 2013
In the Court of Appeals of Georgia A12A2001. MARRIOTT v. THE STATE.
B RANCH, Judge.
Shane Elizabeth Marriott was tried by a Hall County jury and convicted of five
counts of theft by receiving stolen property 1 and one count of theft by deception.2 She
now appeals from the denial of her motion for a new trial, asserting that the evidence
was insufficient to sustain her convictions for theft by receiving. Marriott further
contends that the trial court committed plain error in instructing the jury on the
elements of theft by receiving and in refusing to instruct the jury as to her sole defense
on the charge of theft by deception. We find no reversible error and affirm.
1 OCGA § 16-8-7 (a). 2 OCGA § 16-8-3 (a). On appeal from a criminal conviction, the defendant is no longer entitled to a
presumption of innocence and we therefore construe the evidence in the light most
favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702
SE2d 747) (2010). So viewed, the record shows that on either June 4 or June 5, 2009,
Marriott’s parents contacted the Hall County Sherriff’s Department and reported a
burglary at their home. Specifically, Marriott’s father told the responding officer that
a number of guns were missing from his gun closet. The father subsequently told the
investigator assigned to the case that he suspected his daughter, Marriott, had stolen
the guns. His suspicions were based on the facts that Marriott and her parents were not
on good terms at the time, that Marriott had a key to the house, and that she was the
only person other than her father who knew where he kept the key to the gun closet.
Additionally, on the day they discovered the guns missing, the parents had been
contacted by their next-door neighbor who reported that she had seen a car resembling
Marriott’s parked in the parents’ driveway while they were gone from the house.
Marriott’s father testified to the foregoing facts at trial, and also stated that he had
neither given M arriott any of his guns nor permission to sell any of them.
Based on this information, the investigator and a second officer with the Hall
County Sheriff’s Department traveled to Marriott’s residence in Gwinnett County to
2 interview her on June 18, 2009. During that interview, Marriott stated that she had no
guns and that the only gun in the residence belonged to her boyfriend. After the
officers asked for and received permission to search the apartment, she produced for
them a bag of ammunition containing bullets of a number of different calibers.
Marriott told the investigators that the ammunition belonged to her ex-husband, who
owned a 9mm pistol. The bag, however, contained no 9mm ammunition, and
Marriott’s ex-husband testified at trial and denied any knowledge of the bag or the
bullets therein.3 Additionally, Marriott volunteered to the officers that the ammunition
in the bag was similar in caliber to guns owned by her father.
After investigators found none of the missing guns in Marriott’s apartment, they
asked her if she had pawned or sold any guns recently. Marriott responded that she
had not, noting that the only item she had pawned recently was a necklace.
Officers interviewed Marriott a second time on July 29, 2009, at which time she
indicated that she did have some knowledge of the missing guns, but that she wanted
to speak with her father before discussing the matter further with law enforcement.
Marriott told the lead investigator that she needed until 1:00 p.m. that day to reach her
3 The ex-husband further testified that during his marriage to Marriott, he owned only a single box of 9mm bullets.
3 father and that she would call the investigator after that time. Marriott never contacted
the officer.
On the day after his second interview of Marriott, the investigator discovered
that on May 4 and June 10, 2009, she sold a total of six guns to a gun shop located in
Hall County. Five of those guns were among those reported stolen by Marriott’s
father. The proprietor of the store testified that Marriott told him that she had inherited
the guns. He also explained that the store paid Marriott a total of $1,000 for the
firearms, and that it then resold them to third parties. After learning that the guns had
been stolen, the store repurchased them from its customers and returned the guns to
law enforcement.
On July 31, 2009, the investigator learned that on May 27, May 28, and June
4, 2009, Marriott had sold eight guns to a gun shop in Gwinnett County. All of these
guns were among those reported stolen from Marriott’s father. An employee of the
store testified at trial that, when she sold the guns, M arriott told him that they had
belonged to her father, who had recently passed away.
After discovering that Marriott had sold 13 of her father’s stolen guns, the
investigator and another officer interviewed her for a third time. When confronted
4 with the evidence that she had sold the firearms to a third party, Marriott stated that
her father had given her the guns.
Marriott was subsequently indicted in Hall County on 13 counts of theft by
taking, 13 counts of theft by receiving, and one count each of burglary and theft by
deception.4 The trial court directed a verdict of acquittal on the eight counts of theft
by receiving related to Marriott’s sale of guns to the store in Gwinnett County, based
upon the State’s inability to prove venue as to those counts. The jury found Marriott
not guilty of the burglary count and all 13 counts of theft by taking, but found her
guilty of the five counts of theft by receiving based on her sale of guns to the Hall
County gun store. The jury also found her guilty of theft by deception, based on her
taking $1,000 from the Hall County store in exchange for the stolen guns. Marriott
now appeals from the denial of her motion for a new trial.
1. We first address Marriott’s claim that the evidence is insufficient to sustain
her convictions for theft by receiving. “When we consider whether the evidence is
sufficient to sustain a conviction, we ask whether, after viewing the evidence in the
4 Marriott was both indicted and tried together with her then fiancé, Shane Michael Collins. Like Marriott, Collins was convicted of five counts of theft by receiving and one count of theft by deception, and was acquitted of all other charges. Collins, however, is not a party to this appeal.
5 light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” (Citation and punctuation
omitted.) Louisyr v. State, 307 Ga. App. 724, 727-728 (1) (706 SE2d 114) (2011). As
we have explained before,
it is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. So, if the record contains some competent evidence to prove each element of the crime[s] of which the defendant was convicted, even though that evidence may be contradicted, we must uphold the conviction.
(Citations and punctuation omitted.) Ferguson v. State, 307 Ga. App. 232, 233 (1)
(704 SE2d 470) (2010).
Under Georgia law, “[a] person commits the offense of theft by receiving stolen
property when he receives, disposes of, or retains stolen property which he knows or
should know was stolen unless the property is received, disposed of, or retained with
intent to restore it to the owner.” 5 OCGA § 16-8-7 (a). The purpose of this offense is
to punish a “person who buys or receives stolen goods, as distinct from the principal
thief [of those goods]. An essential element of the crime of theft by receiving is that
5 For purposes of the statute, “receiving” is defined as “acquiring possession or control or lending on the security of the property.” OCGA § 16-8-7 (a).
6 the goods [be] stolen by some person other than the accused.” (Citations and
punctuation omitted.) Thomas v. State, 261 Ga. 854, 855 (1) (413 SE2d 196) (1992).
Thus, if at trial there is presented “direct and uncontested evidence [that] identifies the
defendant as the original thief, the defendant cannot be convicted of theft by
receiving.” (Punctuation and footnote omitted.) Fields v. State, 310 Ga. App. 455,
456-457 (1) (714 SE2d 45) (2011).
Relying on the foregoing law, Marriott argues that because the only evidence
presented at trial showed she was the person who stole the guns, she cannot be
convicted of receiving them. This argument, however, mischaracterizes the evidence
of record and fails to take into account relevant law. That law shows that for an
appellate court to overturn a conviction for theft by receiving on the grounds urged
by Marriott, there must be “direct and uncontested evidence[,]” as opposed to merely
circumstantial evidence, “identifi[ying] the defendant as the original thief.” (Citation
omitted.) Phillips v. State, 269 Ga. App. 619, 631 (10) (604 SE2d 520) (2004)
(overturning conviction for theft by receiving where defendant admitted taking
jewelry in question and pawning it, but defended on the grounds that he was the
rightful owner). See also Fields, supra, 310 Ga. App. at 457 (1) (overturning
conviction for theft by receiving where evidence showing that defendant stole the
7 computers at issue included “video and still photographs, clearly revealing
[defendant’s] unobstructed face and body from several angles, depicting him as the
thief stealing the laptops”) (footnote omitted). A conviction for theft by receiving will
not be overturned, however, where, as here, neither party offers conclusive evidence
to establish the defendant’s identity as the thief and instead there is only
“circumstantial evidence from which guilt of either theft by taking or receiving could
be inferred.” Duke v. State, 153 Ga. App. 204-205 (264 SE2d 721) (1980).
For example, in Duke this Court rejected the defendant’s argument that as the
evidence showed he had stolen the beer at issue, that evidence could not sustain his
conviction for theft by receiving. The evidence showed that the beer was stolen from
a tavern in which defendant had been seen several times on the night of the theft; the
beer was found in defendant’s car, which was parked behind the tavern; the policeman
responding to the report of the crime saw “a person closely resembling defendant
leave the area and run up the street”; and when he was apprehended, the defendant had
a white, chalky substance on his pants similar to a substance found on the window sill
where the thief had entered the tavern. Id. at 204. The defendant, however, denied
breaking into the tavern and stealing the items. Noting that this evidence was only
circumstantial “from which guilt of either theft by taking or receiving could be
8 inferred,” we declined to overturn the conviction. Id. at 205. See also Robinson v.
State, 215 Ga. App. 125, 126 (1) (449 SE2d 679) (1994) (upholding defendant’s
conviction for theft by receiving where there was “no uncontradicted evidence which
demanded a finding that defendant was the thief” and instead “the evidence . . . was
sufficient to establish defendant’s guilt of either theft by taking or theft by receiving”)
(citation and punctuation omitted).
Moreover, and despite Marriott’s assertions to the contrary, in a prosecution for
theft by receiving stolen property, where the identity of the principal thief is either
uncertain or unknown, “there is no burden on the State to prove that the thief was not
the defendant.” (Citation and punctuation omitted.) Petty v. State, 271 Ga. App. 547,
549 (1) (610 SE2d 169) (2005) (evidence sufficient to sustain defendant’s conviction
for theft by receiving included fact that defendant was found driving stolen car
without an ignition key; car’s steering column was damaged; screwdriver was found
on seat next to defendant; when stopped by police, defendant claimed ownership of
car; and there was no direct evidence identifying the car thief). Additionally, the State
may charge a defendant with both theft by taking and theft by receiving the same
property. Such charges may be brought in the alternative and the jury allowed to
determine of which crime the defendant was guilty, depending on the State’s ability
9 to carry its burden of proof with respect to the identity of the thief. Rivers v. State, 225
Ga. App. 558, 560 (1) (484 SE2d 519) (1997) (affirming defendant’s conviction for
theft by receiving where he had also been charged with, but not convicted of, theft by
taking of the same property).
Here, the evidence identifying Marriott as the person who took the guns from
her parents’ house was neither direct nor conclusive. For example, the burglary with
which Marriott was charged was reported on, and was believed to have occurred on,
either June 4 or June 5, 2009. Testimony and documentary evidence, however,
showed that Marriott sold at least three of the guns before those dates, on May 4, 27,
and 28, 2009.6 Additionally, although the parents’ next-door neighbor testified that
she saw a car resembling Marriott’s parked in her parents’ driveway, the neighbor
could not state conclusively the date on which she saw the car or that the car was, in
fact, Marriott’s. Nor did the neighbor or any other witness testify that she actually saw
Marriott at the house. And while Marriott’s father testified that he believed she was
the only person other than himself who knew where the keys to the gun closet were
6 The evidence also showed that Marriott sold six of her father’s guns on June 4, 2009.
10 located, he acknowledged that the keys were readily accessible in an unlocked cabinet
located near the closet.
While this evidence, together with the evidence that Marriott had sold 13 of her
father’s guns, may well have sufficed to sustain a conviction for theft by taking, it did
not demand her conviction for that crime. Indeed, the fact that the jury acquitted
Marriott of the one count of burglary and thirteen counts of theft by taking with which
she was charged shows that it had doubts about her identity as the person who stole
the guns. Accordingly, in the absence of direct, conclusive evidence identifying
Marriott as the initial thief of the guns, “the jury could infer that [s]he was guilty of
theft by receiving.” (Citations omitted.) Petty, 271 Ga. App. at 548 (1).
2. We now turn to Marriott’s claims of error premised on the trial court’s jury
instruction on theft by receiving. As Marriott acknowledges, she did not object to the
jury charge at trial. Thus, we review these claims only for “plain error.” State v. Kelly,
290 Ga. 29, 32 (1) (718 SE2d 232) (2011); OCGA § 17-8-58 (b). And in determining
whether a defendant can show plain error with respect to a jury charge, we ask:
whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings. If all three of these questions are answered in the affirmative, the appellate court has the discretion to reverse if the error seriously affects the fairness,
11 integrity or public reputation of the proceedings below. Satisfying all four prongs of this standard is difficult, as it should be.
(Citations and punctuation omitted.) Kelly, 290 Ga. at 33 (2) (a).
We find that Marriott cannot demonstrate plain error with respect to the charge
of theft by receiving.
(a) Marriott contends that the court’s charge on theft by receiving was incorrect
as a matter of law because it failed to inform the jury that the crimes of theft by taking
and theft by receiving were mutually exclusive, and therefore to convict Marriott of
theft by receiving they had to conclude that someone other than Marriott stole the
firearms at issue.
We agree with Marriott that, under Georgia law, where a defendant has been
charged with both theft by taking and theft by receiving, and the evidence would
support a conviction for either, the jury should be charged “that it can convict of either
. . . , but not both.” Thomas v. State, 261 Ga. 854, 856 (2) (413 SE2d 196) (1992). See
also Ingram v. State, 268 Ga. App. 149, 152 (5) (601 SE2d 736) (2004). In light of the
evidence in this case, therefore, the court should have so instructed the jury. Given
that the jury acquitted Marriott of all thirteen counts of theft by taking, however, we
cannot conclude that the trial court’s failure in this regard constitutes harmful, much
12 less plain, error. In other words, we find it highly unlikely that the erroneous jury
charge affected the outcome of Marriott’s trial. See Williams v. State, 300 Ga. App.
839, 844 (3) (a) (686 SE2d 446) (2009) (an erroneous jury charge is harmless where
“it is highly probable that it did not contribute to the verdict”). Compare Thomas, 261
Ga. at 855 (overturning defendant’s conviction where trial court failed to charge the
jury that he could not be convicted of both theft by taking and theft by receiving, and
the jury found him guilty of both).
(b) Marriott also asserts that the trial court erred by failing to limit its
instruction on the definitions of “deprive,” “property of another,” and “owner” to the
crimes of theft by taking and theft by deception. Specifically, Marriott contends that
the trial court should have informed the jury that these terms were irrelevant to the
crime of theft by receiving, and that its failure to do so may have confused the jury
about what evidence was sufficient to convict her for that crime. We disagree.
To determine whether a jury charge is likely to have misled or confused the jury
about the elements of a particular crime, we must consider the charge as a whole,
reading all of its parts in conjunction with each other. Daniel v. State, 296 Ga. App.
513, 518 (3) (675 SE2d 472) (2009). And “[w]here a charge as a whole substantially
presents issues in such a way as is not likely to confuse the jury even though a portion
13 of the charge may not be as clear and precise as [it] could be . . . , a reviewing court
will not disturb a verdict amply authorized by the evidence.” (Footnote omitted.) Id.
Marriott is correct that the terms “deprive,” “property of another,” and “owner,”
as defined and used in Georgia’s theft statute, apply to the crimes of theft by taking
and theft by deception but not the crime of theft by receiving. See OCGA § 16-8-1
(definitions); OCGA § 16-8-2 7 (theft by taking); OCGA § 16-8-3 (theft by deception);
OCGA § 16-8-7 (theft by receiving). And while the jury was charged on these
definitions immediately after hearing the charge on theft by receiving, to which they
did not apply, these definitions immediately preceded the charges on theft by taking
and theft by deception, to which they did apply. Accordingly, reading the charge as
a whole we do not find that a juror would have been confused as to the evidence
necessary to convict Marriott of theft by receiving. The trial court correctly charged
the jury on the elements of theft by receiving, instructed that the State bore the burden
of proving every element of the crime beyond a reasonable doubt, and sent the
indictment out with the jury. “Taking the charge as a whole, we conclude that a jury
7 OCGA § 16-8-2 provides: “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.”
14 of average intelligence would not have been confused by the charge, and that the trial
court’s charge properly set forth the basis on which the jury was authorized to
convict” Marriott of theft by receiving. (Punctuation and footnote omitted.) Clemens
v. State, 318 Ga. App. 16, 20 (2) (733 SE2d 67) (2012).
3. Marriott’s sole defense was premised on a claim of right, namely that her
father had given her the guns. Although the trial court charged the jury that claim of
right was a defense to the crimes of theft by taking and theft by receiving, it did not
specifically instruct the jury that claim of right was also a defense to the charge of
theft by deception. Marriott did not object to this failure at trial, but on appeal she
contends that it constitutes plain error. We find no such error.
Marriott is correct that a claim of right is a defense to the crime of theft by
deception and that the trial court should have so instructed the jury. Stratacos v. State,
312 Ga. App. 783, 785 (1) (720 SE2d 256) (2011); OCGA § 16-8-10. Marriott cannot
show, however, that this error affected the outcome of trial. Had the jury found that
Marriott’s claim of right was valid – i.e., that her father had given her the guns or that
she believed he had given her the guns – it would have been obligated, under the
instructions given by the trial court, to find that she was not guilty of the charges of
theft by receiving. Given that it found her guilty of those crimes, however, we must
15 conclude that the trial court’s error did not contribute to the guilty verdict on the crime
of theft by deception. See Drake v. State, 274 Ga. App. 882, 883 (1) (619 SE2d 380)
(2005) (evidence that, despite his knowledge that tools belonged to someone else,
defendant represented himself as owner of tools when he sold them to pawn shop was
sufficient to support his conviction for theft by deception).
Judgment affirmed. Miller, P. J., and Ray, J., concur.