Gordon v. State, 72605

• Decision Date: 04 December 1986
• Docket Number: No. 72605,72605
• Parties: GORDON v. The STATE.
• Court: Georgia Court of Appeals

Page 582

352 S.E.2d 582

181 Ga.App. 391

GORDON v. The STATE.

No. 72605.

Court of Appeals of Georgia.

Dec. 4, 1986.

Rehearing Denied Dec. 19, 1986.

Certiorari Granted Feb. 18, 1987.

Robert J. Reed, Gainesville, Albert M. Pearson III, for appellant.

Robert E. Wilson, Dist. Atty., Michael J. Bowers, Atty. Gen., Harrison W. Kohler, Sr. Asst. Atty. Gen., George P. Shingler, Asst. Atty. Gen., for appellee.

BEASLEY, Judge.

Appellant and two others were charged with conspiracy to defraud the state (OCGA § 16-10-21(a)) and two counts of theft by taking (OCGA § 16-8-2) in what has since become known as the "Capitol photography scandal." Appellant brings this appeal from his conviction of all three counts.

1. Appellant first maintains that the evidence presented against him at trial was not sufficient to support his thefts, but the record belies this contention. His primary position is that he was actually tried for theft by deception, and that requisite elements of that crime were absent.

Defendant was indicted by the grand jury for theft by taking, a crime prohibited by OCGA § 16-8-2. The state sought to prove the commission of this crime. The defendant offered no evidence. The trial court instructed the jury in terms of the elements of theft by taking. No one asked for a charge on theft by deception, a specific type of theft by taking and a violation of OCGA § 16-8-3. The defendant expressed satisfaction with the court's announcement that it would charge the jury on theft by taking. The jury found the defendant guilty of theft by taking, and the court sentenced the defendant for having committed that crime.

Theft by taking is committed when property is taken, "regardless of the manner in which the property is taken or appropriated." The grand jury did not choose to confine the indictment to the narrow category of theft by deception, which is only one manner of theft, a manner which has a statutory definition more restrictive than ordinary usage of the word. ¹

While in common parlance it may be said that defendant stole the state's money by deception, defendant has deceived himself when he purports to show that the manner employed to effect defendant's scheme does not fit the statutory definition of theft by deception. As shown, that was not the question, so his whole premise is faulty.

The question is whether defendant committed theft by taking in any manner whatsoever. The general statute makes the theft, not the manner, the focus of its attention. It is true that the Code in Chapter 8 of Title 16 carves out certain manners of theft for specific prohibition. Theft by deception is one; other "manners" or methods are by conversion, by receiving stolen property here or in another state, by bringing stolen property into the state, by shoplifting, and by extortion. These are not exclusive or exhaustive of the ways creatively devised by people to achieve theft. And so the legislature, recognizing that it cannot give an appellation or a circumscribed definition to each of the myriad and even yet-to-be-concocted schemes for depriving people of their property, leaves the general statute to prohibit any taking of another's property with criminal intent, "regardless of the manner." It is often the case that the manner cannot be neatly bundled up and named by one word, or described by a statutory definition whose necessarily prospective creation does not quite fit it. Hence the general statute, to protect any kind of property from any manner of theft. Committee Notes, Chapter 26-18, Theft; Jones v. State, 137 Ga.App. 612, 613(4), 224 S.E.2d 473 (1976); Clark v. State, 138 Ga.App. 266, 269, 226 S.E.2d 89 (1976).

The question, then, is whether defendant took state money unlawfully, with the intent to deprive the state of it. It does not matter, under a theft by taking charge, how it was done, but only that it was done; the how, that is, the manner of the taking, tends to prove that in fact there was a taking and that it was with criminal intent. Therefore the analysis of whether what defendant did constitutes theft by deception or not is not an issue in this case.

In determining whether the evidence supports the conviction, we must ask whether a rational trier of fact could have found the essential elements of theft by taking, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Wimberly v. State, 162 Ga.App. 785, 293 S.E.2d 403 (1982). In doing so, we must view the evidence in the light most favorable to the verdict, construing every inference and presumption in favor of it. Harris v. State, 234 Ga. 871, 873, 218 S.E.2d 583 (1975); Boyd v. State, 168 Ga.App. 246, 248(1), 308 S.E.2d 626 (1983). In this case particularly, inferences play a significant role. The jury is authorized to draw any and all reasonable ones. Garner v. State, 83 Ga.App. 178, 184, 63 S.E.2d 225 (1951).

Here there was evidence that the defendant methodically and deliberately obtained taxpayer money which he knew he was not entitled to, by taking advantage of a lax payment system. There was evidence that his long experience with the system which did not check that what the vendor said was delivered was in fact ordered and delivered, and which did not verify that what was charged was in fact the price quoted, was used by defendant to introduce and perpetuate the scheme. There was evidence that this knowledge-bearing experience, coupled with the trust of naive state employees who depended on his word with respect to the accuracy and legitimacy of the invoices, was abused so as to achieve the unwitting payment of exorbitantly inflated invoices.

The state proved that the amount charged the state was not in keeping with the prices quoted for the business which was to be received and was in fact received from the state for calendar year 1983. Defendant was billed $30,744 for Crown work and $45,110 for Photo Service work by Toco Color Lab, which firm actually did all of the work. Comparing its own prices with defendant's price list, Toco testified that defendant's prices as quoted by him to the state as the basis for what he would charge, was about 10% higher than Toco's. But, based on what he did in fact charge the state, it paid a markup of over 400%, far distant from the neighborhood of 10%.

There was evidence, therefore, that defendant did not charge what he said he would charge. He easily covered up this gross readjustment by obtaining receipts submitted separately from the work delivered, not itemizing the invoices, not attaching the Toco invoices, and destroying the Toco invoices. The absence of the means for verification was in effect acceded to by the absence of requirements for verification. Of this situation, evidence showed, he took advantage to his enrichment of over $270,000. ² It is even admitted on appeal that: "The State paid Appellant almost $400,000 for color film processing that cost him approximately $76,000 at Toco Color Labs," and "Appellant does not dispute the evidence of what his actual markup was."

It mattered not whether, in arriving at the unsupported figure on each invoice, he charged more for each photo than the price list showed, or he figured in more photos than were actually ordered and delivered, or he just arrived at an arbitrary higher figure. The state was not required to show which, because a theft may occur "regardless of the manner."

The fact that the state's fiscal practices resulted in setting the stage for this activity does not render defendant's preying upon it noncriminal, any more than the carelessness or gullible belief of a flim-flam victim would remove the criminality of the flim-flam. See, e.g., Benson v. State, 150 Ga.App. 569(1), 258 S.E.2d 156 (1979).

Nor was the jury required to accept any of appellant's positions. His argument, that the high invoices were justified by the high volume of business and that what was charged was for actual deliveries at the quoted prices, is gutted by the evidence that a much smaller amount of work was in fact done, as Toco's records showed. Appellant's inconsistent explanation to the investigators, which was introduced in evidence, was that the gross discrepancy was caused by Toco's undercharging him.

It is true that the state linked the amount of work done, with the amount that was to be charged for it, to the amount actually charged and paid, by a circuitous route. Nevertheless, the jury was authorized to conclude from this circumstantial evidence that defendant committed theft by taking. The manner was by knowingly submitting grossly inflated invoices, knowing they would be paid because of the absence of verification procedures, and they were paid, to the detriment of the state fisc; the manner was by submitting false invoices, false in that they were in an amount far in excess of that agreed upon by acceptance of the price list which was to be, and which was believed to be, the basis for the invoices.

Under the theft by taking statute, it does not matter what name is given to the manner; it need not even have a one-word name. What matters is whether the scheme is criminal. See Ray v. State, 165 Ga.App. 89, 91(1), 299 S.E.2d 584 (1983); Stull v. State, 230 Ga. 99, 101(1), 196 S.E.2d 7 (1973).

2. In a third count, appellant was charged with and convicted of conspiracy to defraud the state (OCGA § 16-10-21(a)), based on transactions involving the sale of unprocessed rolls of film. He argues that his conviction for conspiracy to defraud the state should be set aside since appellant was found guilty of the completed crime, theft by taking. Ray v. State, supra, Division 3.

Appellant's argument is without merit, as there is sufficient evidence to support a conviction of this crime, which is distinct from the general conspiracy statute, OCGA § 16-4-8. There was no merger, as the facts show that this was related to the non-delivery of film supplies and equipment, not to the charges for photos.

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