Spray v. State

• Decision Date: 10 October 1996
• Docket Number: No. A96A2311,A96A2311
• Citation: 476 S.E.2d 878,223 Ga.App. 154
• Parties: SPRAY v. The STATE.
• Court: Georgia Court of Appeals

Page 878

476 S.E.2d 878

223 Ga.App. 154

SPRAY v. The STATE.

No. A96A2311.

Court of Appeals of Georgia.

Oct. 10, 1996.

Certiorari Denied Feb. 14, 1997.

J. Converse Bright, Valdosta, for appellant.

Michael J. Bowers, Attorney General, Terry L. Lloyd, Assistant Attorney General, for appellee.

ELDRIDGE, Judge.

Charlie Spray was convicted by a Lowndes County jury of ten counts of theft by taking and one count of making a false statement. He appeals the trial court's denial of his motion for directed verdict and subsequent motion for judgment of acquittal, contending that the evidence was insufficient to support his convictions for theft by taking because the allegations contained in the indictment and the proof adduced at trial were at variance. With regard to his conviction for making a false statement, appellant contends that the State failed to prove venue. Finding no merit to either of these contentions, we affirm.

Appellant was the Chief of Police in Valdosta, Lowndes County. Pursuant to his position, appellant applied to the Georgia Emergency Management Agency (GEMA) on behalf of the Valdosta Police Department to obtain surplus law enforcement items for drug interdiction purposes. The GEMA program obtained excess items of defense from the federal government and redistributed them to state law enforcement agencies specifically to aid the agencies in combating drug crimes.

Appellant's application was approved by the GEMA program in November 1991. Thereafter, between March 1993 and September 1994, appellant made numerous trips to the GEMA warehouse in Atlanta where he obtained goods ranging from clothing and sleeping bags to generators and trucks. Only once did appellant follow proper procedure: he informed the Valdosta city manager of an ambulance and a Dodge "K" car that he had acquired from GEMA. These items were properly impounded in the city lot and were given city identification numbers. However, the vast majority of the approximately 119 items that the appellant acquired from the GEMA program for the Valdosta Police Department never found their way into city property at all; appellant's trips to Atlanta and back culminated at his home where the GEMA items were left for the use of appellant, his relatives, and his friends. The city manager was unaware of the items obtained from GEMA by appellant, as was the Valdosta Police Department captain in charge of the local drug task force, for which purpose the items were ostensibly acquired.

Further, as an accounting measure in January 1995, GEMA sent a memorandum to all agencies that had received property under the program. The memorandum requested "Validation of Compliance and Utilization" as to the use being made of the approximately 119 items allegedly received by the Valdosta Police Department; appellant signed the GEMA verification form asserting that: "All property obtained is being used ONLY by this agency and ONLY for drug or counterdrug operations."

1. In each of the theft by taking counts, appellant was charged with "unlawfully, knowingly and willfully tak[ing] the property of the State of Georgia." However, appellant contends that his taking of the property was lawful since GEMA willingly turned the property over to appellant in his capacity as Chief of Valdosta Police. Relying on this Court's decision in Walker v. State, 146 Ga.App. 237, 246 S.E.2d 206 (1978), appellant argues that while the evidence may have authorized a conviction for an "unlawful appropriation" after a lawful taking, the evidence does not support appellant's conviction for an "unlawful taking" as charged in the indictment. We disagree.

Our theft by taking statute, OCGA § 16-8-2, states that "[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." Under the statute, the phrase "regardless of the manner in which the property is taken or appropriated" is a catch-all phrase rendering our theft by taking statute broad enough to encompass theft by conversion, theft by deception or any other of the "myriad and even yet-to-be-concocted schemes for depriving people of their property." Gordon v. State, 181 Ga.App. 391, 392, 352 S.E.2d 582 (1986), rev'd on other grounds in Gordon v. State, 257 Ga. 335, 359 S.E.2d 634 (1987) (evidence showing an "outrageous markup" for services rendered not sufficient to support conviction for theft); see also Lundy v. State, 195 Ga.App. 682, 684, 394 S.E.2d 559 (1990); Ray v. State, 165 Ga.App. 89, 90, 299 S.E.2d 584 (1983). Although the statute defines two types of theft, i.e., an unlawful taking and an unlawful appropriation, the issue is not necessarily how the offense was perpetrated, but when the subjective intent to deprive the owner of the property arose: at the time of the taking, or thereafter while being in lawful possession. Stull v. State, 230 Ga. 99, 103, 196 S.E.2d 7 (1973). Mason v. State, 180 Ga.App. 235, 237, 348 S.E.2d 754 (1986). Thus, under the broad language of our theft by taking statute, the importance of the manner in which the theft is perpetrated is diminished by the determinant issues: the existence of the requisite intent to steal and when it began. Stull, supra at 103, 196 S.E.2d 7.

In terms of practical application, a grand jury will often return an indictment mirroring the exact language of the statute which gives rise to a cause of action on both forms of the offense and permits a jury charge thereon. See Dukes v. State, 265 Ga. 422, 424, 457 S.E.2d 556 (1995). However, if a criminal defendant is charged solely under the "unlawful appropriation" language of OCGA § 16-8-2, the evidence must show that the defendant, being in lawful possession of the property, thereafter appropriated it to his own use with the requisite intent to deprive the owner thereof, and the trial court must so charge the jury. Dukes, supra at 423, 457 S.E.2d 556; Walker, supra. On the other hand, if the indictment charges the defendant, as in the case sub judice, solely under the "unlawful taking" language of the statute, then the evidence must show that the requisite intent to deprive the owner of the property was present at the time of the taking, and the trial court must so charge the jury. Bell v. State, 220 Ga.App. 293, 469 S.E.2d 714 (1996); Robinson v. State, 152 Ga.App. 296, 262 S.E.2d 577 (1979).

In the case sub judice, simply because appellant went through appropriate channels and obtained the GEMA property under color of his position as Valdosta Chief of Police, does not mean that appellant cannot be indicted for and found guilty of an unlawful taking under the statute. Again, the manner in which the theft occurred is not necessarily determinative. Instead, the question is whether the appellant had the requisite intent to deprive the State of Georgia of the goods at the time appellant received the property from GEMA. "It is plain that it was the intent of [the owner] to extend [the property], not to the accused, but to the [city] which they...