Clement v. State

• Decision Date: 26 September 2013
• Docket Number: No. A13A1279.,A13A1279.
• Citation: 749 S.E.2d 41,324 Ga.App. 39
• Parties: CLEMENT v. The STATE.
• Court: Georgia Court of Appeals

324 Ga.App. 39

749 S.E.2d 41

CLEMENT

v.The STATE.

No. A13A1279.

Court of Appeals of Georgia.

Sept. 26, 2013.

Jimmonique R.S. Rodgers, Fort Gordon, for Appellant.

Ms. Leigh Ellen Patterson, Kay Ann Wetherington, for Appellee.

BARNES, Presiding Judge.

A jury convicted Victor Lamar Clement of misdemeanor theft by taking and criminal damage to property in the second degree, and the trial court denied his motion for new trial. On appeal, Clement contends that there was insufficient evidence to convict him of criminal damage to property in the second degree because the State failed to prove that the damage exceeded $500, an essential element of the indicted crime. We are constrained to agree with Clement and therefore vacate his conviction for criminal damage to property in the second degree. However, because the evidence was sufficient to support a conviction of the lesser included offense of criminal trespass to property, we remand the case with direction that the trial court enter a conviction and sentence for that lesser offense.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to support the verdict. See Bryan v. State, 271 Ga.App. 60(1), 608 S.E.2d 648 (2004). So viewed, the evidence showed that shortly after midnight on November 17, 2011, one of Clement's neighbors was on his way to a convenience store when he drove over a strand of telephone wire lying across the road. The neighbor saw Clement in his black Mustang by the side of the road near the wire, and he immediately called 911 to report the suspicious activity. A few minutes later, the neighbor returned home from the store and noticed that the Mustang was now parked near Clement's mobile home, which was approximately a quarter of a mile from where the telephone wire was lying in the road. The neighbor again called 911 and reported the location of the Mustang.

The police responded to the 911 calls and apprehended Clement as he was walking down the center of the road, heading away from his mobile home and back toward the downed telephone wire. In addition to the wire on the road, officers found wire along the side of the road and in a ditch. The wire had been cut from a telephone line running across the road to a telephone post in a pasture.

Based on the neighbor's second 911 call, officers also responded to the property where Clement's mobile home was located and where his Mustang was parked. The officers obtained consent to search the property and the Mustang. While walking around the property, officers found approximately 30 feet of cut telephone wire rolled up in a 55–gallon “burn barrel.” The officers, who noted that the ground near where the telephone line had been cut was wet with dew, also found a pair of freshly muddy boots in Clement's Mustang.

Clement was indicted and tried on charges of felony theft by taking and criminal damage to property in the second degree. With regard to the latter charge, the indictment alleged that Clement intentionally damaged the property of AT & T by cutting and removing utility and telephone line cable. At the ensuing jury trial, Clement's neighbor and the responding officers testified to the events previously discussed. The State also called as witnesses two AT & T employees, a digital technician and a network manager for construction and engineering.

The AT & T digital technician testified that the telephone wire found in the burn barrel was from the same strand of wire that had been cut from the line running across the road into the pasture and that the wire belonged to AT & T. He further testified that the cut wire was composed of strands of fiber optic cable and copper cable, but that both types of cable appear the same from the outside. However, unlike fiber optic cable, copper cable can be sold for recycling once the insulation is burned off.

The AT & T network manager testified that a total of 200 feet of fiber optic cable and 50 feet of copper cable had been cut from the telephone line running across the road into the pasture. AT & T technicians had to replace the cut telephone line and repair the damaged ends of the existing line to return telecommunications services to its customers. The replacement and repair work required two AT & T crews, “a placing [crew] and a splicing crew,” that together spent eight hours on the job. The network manager, whose “role in this particular case [was] to calculate the financial end of repairing the damage,” testified that AT & T had incurred a total of $384 in costs for replacement materials and $1,929 in labor expenses.

With respect to the $1,929 in labor expenses, the network manager testified that he used a “loaded labor rate” to calculate the expense associated with each of the AT & T technicians who performed the repairs to the telephone line, apparently by multiplying the hours worked by each technician times the loaded labor rate for that technician. The manager explained that he did not calculate the loaded labor rate itself for each technician; rather, the loaded labor rate was set out in a chart created and provided to him by the AT & T asset protection department, and he simply applied the rates laid out in the chart to arrive at the labor expenses associated with each AT & T technician involved in the repair work. The loaded labor rate chart developed by the asset protection department and relied upon by the manager to calculate the labor expenses was not introduced into evidence at trial, and no one from the asset protection department was called as a witness.

When asked what was included in the loaded labor rate, the manager indicated that the extent of his knowledge was limited because he simply got the number from the asset protection department. The manager explained, “It's all inclusive of everything that the employee has. The time, the trucks, the fuel, the tools. I'm sure there are a number of things. That is what I'm aware of insofar as the loaded labor rate goes.” When later asked if the loaded labor rate for a technician included “his truck, his tools, his insurance on his vehicle and other items,” the manager answered in the affirmative.

Upon the close of the State's case-in-chief, the trial court reduced the felony theft by taking count to a misdemeanor after the State agreed that there was insufficient evidence to support a felony charge. Clement also moved for a directed verdict on the count for criminal damage to property in the second degree, contending that the State had failed to prove through competent evidence that the damage exceeded $500, an essential element of the crime. Clement argued that the only competent evidence of damage was the network manager's testimony that AT & T incurred $384 in costs for replacement materials. As to the network manager's testimony regarding his calculation of $1,929 in labor expenses, Clement argued that the testimony was hearsay and lacked probative value because the figure came from a chart created by a third party that was never introduced into evidence by the State. Clement also argued that the $1,929 figure included expenses that could not considered when determining the value of the damaged property. The trial court denied Clement's motion for a directed verdict, but ultimately charged the jury on the...