Camsler v. State, A93A2333

• Decision Date: 21 January 1994
• Docket Number: No. A93A2333,A93A2333
• Citation: 440 S.E.2d 681,211 Ga.App. 826
• Parties: CAMSLER v. The STATE.
• Court: Georgia Court of Appeals

Page 681

440 S.E.2d 681

211 Ga.App. 826

CAMSLER v. The STATE.

No. A93A2333.

Court of Appeals of Georgia.

Jan. 21, 1994.

Reconsideration Denied Feb. 4, 1994.

Certiorari Denied March 18, 1994.

Shandor S. Badaruddin, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Carl P. Greenberg, Vivian D. Hoard, Herman L. Sloan, Asst. Dist. Attys., for appellee.

ANDREWS, Judge.

Camsler was indicted for the offenses of armed robbery of a car and theft by receiving the same car. A jury found him guilty of both offenses. The trial court merged the theft by receiving conviction into the armed robbery conviction, and sentenced Camsler to a term of ten years. Camsler's sole enumeration of error on appeal is that the trial court erred by denying his motion to set aside the convictions and grant a new trial because the two convictions were mutually exclusive.

The evidence in this case authorized Camsler's conviction on either offense. Nevertheless, a defendant cannot be convicted of robbery of a vehicle and theft by receiving the same vehicle because the convictions are mutually exclusive. Thomas v. State, 261 Ga. 854, 855, 413 S.E.2d 196 (1992). " 'The offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief.' Sosbee v. State, 155 Ga.App. 196, 197, 270 S.E.2d 367 (1980). An essential element of the crime of theft by receiving is, 'that the goods had been stolen by some other person than the accused....' Austin v. State, 89 Ga.App. 866, 868, 81 S.E.2d 508 (1954)." Thomas v. State, 199 Ga.App. 586, 405 S.E.2d 512 (1991), rev'd on other grounds, 261 Ga. 854, 413 S.E.2d 196 (1992). Moreover, in Thomas, supra, our Supreme Court concluded that where mutually exclusive convictions were rendered it was not sufficient to vacate one conviction and allow the other to stand. Rather, the Court ruled that the jury should have been instructed that it could convict of either offense (when the evidence so authorizes) but not both, and since it was impossible to determine which offense a properly instructed jury would have convicted the defendant of, a new trial on both offenses was required. Id. 261 Ga. at 855-856, 413 S.E.2d 196.

While agreeing with these general principles, the State argues that the convictions in this case are not mutually exclusive because the indictment on the theft by receiving count against Camsler alleged that he "did unlawfully receive and retain ..." the stolen car. (Emphasis supplied.) In Thomas, supra the Supreme Court questioned but rendered no opinion on "whether armed robbery and theft by receiving, where the indictment alleges retaining stolen property, are mutually exclusive." Id. at 855, n. 1, 413 S.E.2d 196. We need not reach this issue in the present case. Compare Redding v. State, 192 Ga.App. 325, 327-328, 384 S.E.2d 910 (1989) (Beasley, J., dissenting).

Under OCGA § 16-8-7(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." Thus, the actus reus element of the...