Bonner v. State

• Decision Date: 17 November 2016
• Docket Number: A16A1097
• Citation: 794 S.E.2d 186,339 Ga.App. 539
• Parties: Bonner v. The State
• Court: Georgia Court of Appeals

339 Ga.App. 539

794 S.E.2d 186

Bonner

v.The State

A16A1097

Court of Appeals of Georgia.

November 17, 2016

Erin Elizabeth Donohue–Koehler, for Appellant.

Paul L. Howard Jr., Atlanta, Kevin Christopher Armstrong, for Appellee.

McMillian, Judge.

Keshaun Jaemer Bonner was indicted in Fulton County on charges of armed robbery, hijacking of a motor vehicle, and possession of a firearm during the commission of a felony in connection with an alleged taking of a car on April 3, 2014. Bonner appeals the trial court's denial of his plea in bar and motion to dismiss this indictment based on double jeopardy and collateral estoppel, asserting that he previously pled guilty in Clayton County to a felony charge of theft by receiving stolen property involving the same car on the same day.¹

Bonner was indicted on the Fulton County charges on April 11, 2014, and the Clayton County charges were asserted in an accusation dated August 8, 2014.² Bonner pled guilty to the Clayton County accusation four months later, on December 8, 2014, while the Fulton County charges remained pending. In reciting the factual basis for the charge of felony theft by receiving during Bonner's guilty plea hearing, the prosecutor stated that she expected the evidence to show that on April 3, 2014, Bonner was in possession of a stolen car, which was the property of another, which he knew or should have known was stolen. The trial court sentenced Bonner to a total of eight years, with twelve months to serve,³ on the felony charge of theft by receiving in this case, along with another felony offense of theft by receiving charged in a separate indictment to which Bonner also pled guilty.⁴

On May 12, 2015, Bonner filed his plea in bar and motion to dismiss in the Fulton County action asserting that the charges in both the Clayton and Fulton County actions arose from the theft of the same car and that he could not be prosecuted for both taking the car and receiving it as stolen property. Bonner argued that because the charge of theft by receiving under OCGA § 16-8-7 applies only to individuals who were not involved in the actual theft of the stolen property, his conviction under that statute represents a judicial finding that he was not the principal thief, barring any subsequent prosecution for crimes requiring a contradictory finding that he did, in fact, steal the car.

The trial court appeared to agree with Bonner's analysis regarding the mutually exclusive nature of his conviction for theft by receiving when compared to the armed robbery and car hijacking charges alleged in the Fulton County indictment. Nevertheless, the court denied Bonner's plea in bar and motion on the ground that Bonner had not yet been convicted of two mutually exclusive crimes. The court found that if the theft by receiving charge somehow were set aside⁵ by the time of Bonner's trial on the Fulton County charges, the jury would be free to consider the charges alleging that he had actually taken the car.

Because the facts here are undisputed and no question arises as to the credibility of any witnesses, our review of the trial court's ruling is de novo. Garrett v. State , 306 Ga.App. 429, 429, 702 S.E.2d 470 (2010) ; Summers v. State , 263 Ga.App. 338, 587 S.E.2d 768 (2003).

Bonner's argument in support of his motion and plea in bar is grounded in collateral estoppel, a doctrine incorporated into the Fifth Amendment's prohibition against double jeopardy. Ashe v. Swenson , 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. As the Georgia Supreme Court has explained,

[c]ollateral estoppel may affect a later criminal prosecution in two ways: (1) it may operate to bar the introduction of certain facts necessarily established in a prior proceeding; or (2) it may completely bar a subsequent prosecution where one of the facts necessarily determined in the former proceeding is an essential element of the conviction sought.

(Emphasis supplied.) Malloy v. State , 293 Ga. 350, 354 (2) (a), 744 S.E.2d 778 (2013). Thus, where a defendant's prior conviction necessarily includes a factual finding that would prevent his conviction on other charges, further prosecution of those charges is barred, and the trial court erred to the extent that it found that a subsequent prosecution may proceed as long as the defendant is not convicted on the barred charge.

The question, then, is whether Bonner's plea to theft by receiving by retaining the stolen vehicle barred his subsequent prosecution for armed robbery and hijacking the vehicle. In Georgia, "[t]here is no doubt that one cannot be convicted of both robbery of a vehicle and theft by receiving that vehicle. The offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief." (Citation and punctuation omitted.) Thomas v. State , 261 Ga. 854, 855 (1), 413 S.E.2d 196 (1992). See also Camsler v. State , 211 Ga.App. 826, 826, 440 S.E.2d 681 (1994). The same reasoning applies to the crime of hijacking a motor vehicle. Cf. Middlebrooks v. State , 241 Ga.App. 193, 195 (4), 526 S.E.2d 406 (1999) (holding that theft by receiving a motor vehicle is not a lesser included offense of hijacking a motor vehicle because "[t]he offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief") (citation and punctuation omitted). Thus, a finding "that the goods had been stolen by some person other than the accused" is an essential element of a conviction for theft by receiving under OCGA § 16-8-7. (Citation and punctuation omitted.) Thomas , 261 Ga. at 855, 413 S.E.2d 196.

However, "the actus reus element of the offense [set out in that statute] may be committed by either receiving, disposing of, or retaining stolen property." Camsler , 211 Ga.App. at 827, 440 S.E.2d 681. Here, the Clayton County accusation alleged that Bonner had violated the statute solely by retaining the stolen property. In Thomas , our Supreme Court left open the question of "whether armed robbery and theft by receiving, where the indictment alleges retaining stolen property, are mutually exclusive." 261 Ga. at 855 n.1, 413 S.E.2d 196. This Court subsequently answered that question in the affirmative. Ingram v. State , 268 Ga.App. 149, 151–52 (5), 601 S.E.2d 736 (2004). We take the opportunity now to further elucidate the reason why theft by receiving by retaining stolen property is treated in the same manner as theft by receiving or disposing of stolen property for purposes of determining whether crimes are mutually exclusive.

Prior to 1969, Georgia law provided, that "[i]f any person shall buy or receive any goods ... that shall have been stolen or feloniously taken from another, knowing the same to be stolen or feloniously taken, such person shall be an accessory after the fact, and shall receive the same punishment" as a person convicted of stealing or feloniously taking the property. See former Ga. Code Ann. § 26-2620, repealed by Ga. L. 1968, p. 1249. In applying this provision, Georgia courts held that "[t]he gist of the offense of receiving stolen goods knowing them to be stolen is the felonious knowledge that the goods were stolen; and to constitute the offense, the person receiving the goods must have this knowledge at the time of receiving them." Pat v. State , 116 Ga. 92, 92, 42 S.E. 389 (1902). Therefore, no violation of the statute occurred where a defendant took possession of the goods without knowing that they were stolen, but who, when later informed of the fact, retained possession of them. Id. ; Johnson v. State , 135 Ga.App. 768, 768 (2), 219 S.E.2d 25 (1975) ; Johnson v. State , 122 Ga.App. 769, 771 (2), 178 S.E.2d 772 (1970) ; Rogers v. State , 29 Ga.App. 363, 115 S.E. 668 (1923).

Moreover, a conviction under this statute also required that the State prove that someone other than the defendant, if known and apprehended, was guilty of the theft of the property. See Clarke v. State , 103 Ga.App. 739, 739, 120 S.E.2d 673 (1961) ("Before a conviction can be had for offense of receiving stolen goods ..., every fact essential to the conviction of principal thief, whether he be known or unknown, must be proved, as well as that the party on trial received stolen goods with knowledge that they were stolen.") See also Reese v. State , 114 Ga.App. 315, 315, 151 S.E.2d 180 (1966) ; Jackson v. State , 98 Ga.App. 135, 136, 105 S.E.2d 249 (1958) (holding that where principal thief was not indicted and convicted, defendant could not be lawfully convicted of receiving goods allegedly stolen by principal thief).

In 1968, the Georgia Legislature "enacted a comprehensive revision of the criminal laws. Ga. L. 1968, p. 1249." Patterson v. State , 299 Ga. 491, 505 (2) (b), 789 S.E.2d 175 (2016) (Blackwell, dissenting). This enactment was based on the work of a Criminal Law Study Committee (the "Committee") commissioned by the General Assembly in 1961 "to undertake ‘a thorough study of the criminal laws' and to recommend ‘a revision of the laws relative to criminal law and procedure,’ with an eye toward eliminating ‘ambiguities and inconsistencies.’ Ga. L. 1961, p. 96." Id. at 505 (2) (b), 789 S.E.2d 175. As a part of the 1968 revision, Ga. Code Ann. § 26-2620 was repealed and replaced, effective July 1, 1969, (Ga. L. 1968, pp. 1249, 1292), with the current version of the statute, which provides:

(a) 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. ‘Receiving’ means acquiring possession or control or lending on the security of the property.

(b) In

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