OCGA 16-8-2 Brief Description Theft by taking Statutory Language 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. Form Charge Property more than $500 in value accused, in the County of Fulton and State of Georgia, on Date of Offense, did unlawfully take description of the property of a value in excess of $500.00, the property of Full Name of Victim with the intention of depriving said owner of said property; contrary to the laws of said State, the good order, peace and dignity thereof; Indictment in the name and behalf of the citizens of Georgia, further charge and accuse Defendant's Full Name with the offense of theft by taking in violation of O.C.G.A. 16-8-2 for the said accused, in the County of Fulton and State of Georgia, on Date of Offense, did unlawfully take description of the property of a value in excess of $500.00, the property of Full Name of Victim with the intention of depriving said owner of said property; contrary to the laws of said State, the good order, peace and dignity thereof; Motor vehicle accused, in the County of Fulton and State of Georgia, on Date of Offense, did unlawfully take a description of vehicle (year, make, model), a motor vehicle, the property of Full Name of Victim with the intent of depriving the owner of said motor vehicle; contrary to the laws of said State, the good order, peace and dignity thereof; Indictment In the name and behalf of the citizens of Georgia, charge and accuse Defendant's Full Name with the offense of theft by taking in violation of O.C.G.A. 16-8-2 for the said accused, in the County of Fulton and State of Georgia, on Date of Offense, did unlawfully take a description of vehicle (year, make, model), a motor vehicle, the property of Full Name of Victim with the intent of depriving the owner of said motor vehicle; contrary to the laws of said State, the good order, peace and dignity thereof; Motor vehicle part or component more than $100 in value 1
accused, in the County of Fulton and State of Georgia, on Date of Offense, did unlawfully take a description of the property, motor vehicle parts of a value in excess of $100.00, the property of Full Name of Victim, with the intent of depriving the owner of said motor vehicle parts; contrary to the laws of said State, the good order, peace and dignity thereof; Destructive devise, explosive or firearm accused, in the County of Fulton and State of Georgia, on Date of Offense, did unlawfully take a description of the property, a / an destructive devise / explosive / firearm, and the property of Full Name of Victim, with the intention of depriving said Full Name of Victim of said destructive devise / explosive / firearm; contrary to the laws of said State, the good order, peace and dignity thereof; Grave marker of military veteran accused, in the County of Fulton and State of Georgia, on Date of Offense, did unlawfully take a grave marker, monument, or memorial to Name Person(s) on the monument, a deceased person who served in the military service of The State of Georgia / United States of America / Confederate States of America of a value less than / more than $300.00, from the grave of said Name Person(s) on the monument with the intent of depriving the grave of said marker, monument or memorial; contrary to the laws of said State, the good order, peace and dignity thereof; Unharvested commercial agricultural product accused, in the County of Fulton and State of Georgia, on Date of Offense, did unlawfully take description of the property, unharvested commercial agricultural products of a value in excess of $500.00 and the property of Full Name of Victim, with the intent of depriving the owner of said property; contrary to the laws of said State, the good order, peace and dignity thereof; Misappropriation (lawful possession) 2
accused, in the County of Fulton and State of Georgia, on Date of Offense, being in lawful possession of description of the property of a value exceeding $500.00 and the property of Full Name of Victim, did unlawfully appropriate said property with intention of depriving said Full Name of Victim of said property; contrary to the laws of said State, the good order, peace and dignity thereof; Elements Element Witness Exhibit 0 In County; 0 A named and identified defendant; 1a Took certain property; OR 1b Appropriated certain property to an unauthorized personal use; 2 The defendant intended to deprive the owner of the property; 3a The property was more than $500 in value; OR 3b The property was a motor vehicle; OR 3c The property was motor vehicle parts or components more than $100 in value; OR 3d The property was a destructive device; OR 3e The property was an explosive device; OR 3f The property was a firearm; OR 3g The property was a grave marker of a military veteran; OR 3h The property was unharvested commercial agricultural products; Pattern Jury Instruction 2.33.11 Theft; Deprive Deprive means to, without justification, a) withhold property of another permanently or temporarily or b) dispose of the property so as to make it unlikely that the owner will recover it. 2.33.12 Theft; Financial Institution Financial institution means a bank, insurance company, credit union, building and loan association, investment trust, or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment. 2.33.13 Theft; Property of Another Property of another includes property in which any person other than the accused has an interest (but does not include property belonging to the spouse of an accused or to them jointly). O.C.G.A. 16-8-1 2.33.14 Theft; Owner 3
"Owner" in this connection means a person who has a right to possession of property, which is a right superior to that of a person who takes, uses, obtains, or withholds the property from him/her and that the person taking, using, obtaining, or withholding is not privileged to infringe. O.C.G.A. 16-1-3(10) (In that connection, ownership may be described in an indictment in the name of the real owner or in the name of the person in lawful possession of the property. If the property alleged to have been stolen was taken from the lawful possession of the person named in the indictment as the owner, then this would constitute sufficient proof of ownership.) Morris v. State, 228 Ga. 39, 45 (1971) 2.33.15 Theft; Asportation or Removal of Property In theft cases, the slightest change of location, whereby complete control of the property is transferred from the owner to another, is sufficient evidence of carrying away or removal. Johnson v. State, 9 Ga. App. 409 (1911) Parrish v. State, 123 Ga. App. 625 (1971) Any unlawful carrying away or removal, however slight, is sufficient to show the "taking" element. It is not necessary that property be removed from the premises of the owner. Stanley v. State, 97 Ga. App. 828 (1958) Johnson v. State, 9 Ga. App. 409 (1911) Lundy v. State, 60 Ga. 143 (1878) Craighead v. State, 126 Ga. App. 300 (1972) 2.33.20 Theft by Taking; Statutory Definition (Adapt charge to indictment and evidence, as it is erroneous to charge both methods of taking unless each is separately involved.) A person commits theft by taking when a) 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, or b) being in lawful possession of any property of another, that person unlawfully appropriates such property with the intention of depriving the other person of the property, regardless of the manner in which the property is taken or appropriated. O.C.G.A. 16-8-2 Walker v. State, 146 Ga. App. 237, 239 (1978) Robinson v. State, 152 Ga. App. 296 (1979) 2.64.43. THEFT BY TAKING; VALUE DEFINED When value is an element of an offense, the value that must be proved by the State is "fair market value" of the property at the time of the taking (or receiving). Fair market value is defined as the price agreed upon by the seller who is willing, but not compelled, to sell and a buyer who is willing, but not compelled, to buy. 4
(In a theft of retail items from a retail establishment, value is the same as retail price, if shown.) ANNOTATIONS: Brown v. State, 143 Ga. App. 678 (1977) 2.33.41 Theft by Taking; Value over $500 (Charge appropriate language only.) If you believe beyond a reasonable doubt that the defendant committed the offense of theft by taking the property of a proven value in excess of $500 that is described in this indictment, the property of, then you would be authorized to find the defendant guilty. In that event, the form of your verdict would be, "We, the jury, find the defendant guilty." Walker v. State, 146 Ga. App. 237, 239 (1978) Robinson v. State, 152 Ga. App. 296 (1979) O.C.G.A. 16-8-12(a)(1) 2.33.42 Theft by Taking; Value of $500 or Less Should you find the defendant guilty beyond a reasonable doubt in the way and manner I have instructed you, except that you find and believe that the value of the property alleged to have been taken did not exceed $500, the form of your verdict would be, "We, the jury, find the defendant guilty of theft by taking property not exceeding $500 in value." O.C.G.A. 16-8-12(a) 2.33.43 Theft by Taking; Value Defined When value is an element of an offense, the value that must be proved by the State is "fair market value" of the property at the time of the taking (or receiving). Fair market value is defined as the price agreed upon by the seller who is willing, but not compelled, to sell and a buyer who is willing, but not compelled, to buy. (In a theft of retail items from a retail establishment, value is the same as retail price, if shown.) Brown v. State, 143 Ga. App. 678 (1977) Party to a crime Every party to a crime may be charged with and convicted of commission of the crime. A person is a party to a crime only if that person directly commits the crime or intentionally helps in the commission of the crime. If you find beyond a reasonable doubt that the offense of theft by taking was committed, and you find beyond a reasonable doubt that the defendant was a party to that crime as charged herein, as I ve defined party, you may find the defendant guilty of theft by taking. 2.37.50 Theft; Defense; Claim of Right It is a defense to a charge of (theft by taking) (receiving stolen property) that the actor a) was unaware that the property was that of another or 5
b) acted under an honest claim of right to the property involved or under a right to acquire or dispose of it. Should you find from the evidence in this case that the accused acted under such claim of right, as I have just instructed you, then it would be your duty to acquit the defendant. The burden of proof rests upon the State to prove beyond a reasonable doubt that the accused did not act under an honest claim of right to the property and that the accused was aware that the property was that of another person. If the State fails to prove such beyond a reasonable doubt, then you should acquit the defendant. O.C.G.A. 16-8-10 Punishment Statutory: imprisonment for not less than one year nor more than ten years and by a fine of not more than $10,000. Case Law (Sufficiency of Evidence to Sustain Conviction) The trial evidence revealed an ongoing pattern of theft of services of county personnel, and the unauthorized use of county vehicle and gasoline for personal profit and convenience throughout the entire course of Dorsey s term as sheriff. Dorsey s conduct was so far outside the realm of acceptable police behavior that any rational trier of fact could have found proof beyond a reasonable doubt of the eight counts of theft by taking in violation of Dorsey s duties as a public officer. Simply put, Dorsey could not have had an honest claim of right to the county s property. Dorsey v. State, 279 Ga. 534 (2005). The theft by taking count alleged that on December 14, 1998, Buckner stole a Mustang vehicle owned by the Kings. This offense is defined as the unlawful taking of another s property with the intent of depriving that owner of the property. The evidence showed that four days after the Kings vehicle disappeared from their driveway, police spotted the vehicle and activated their blue lights in an attempt to stop it, only to have the driver speed away. When the vehicle crashed, an officer chased the fleeing driver on foot and got a good look at the driver s face before he escaped. At trial the officer identified Buckner as the driver. In the Mustang, officers found various receipts for clothing left by Buckner at a dry cleaning establishment. Buckner s fingerprint was also found on the driver s side door. The evidence sufficed to sustain this conviction. Buckner v. State, 253 Ga. App. 294 (2002) (citations omitted). 6