Defending Theft by Taking Cases In Cobb County And In The Atlanta-Metropolitan Area
The Offense
Elements Of the Crime
The most common type of theft charge is known as "Theft by Taking." Georgia Code 16-8-2 defines that offense as:
A person 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.
Georgia Code 16-8-1 provides some useful definitions in this context.
"Deprive" means, without justification (A) to withhold property of another permanently or temporarily; or (B) to dispose of the property so as to make it unlikely that the owner will recover it.
"Property of another" includes property in which any person other than the accused has an interest but does not include property belonging to the spouse of an accused or to them jointly.
This Crime Can Be Charged As Either A Misdemeanor Or A Felony
A lot of my clients have made the mistake that a majority of these cases are simple misdemeanors, and aren't that big of a deal. That is simply not true. The criminal penalty depends on the value of the property allegedly taken, and the criminal penalties can be quite severe depending on that value.
Felony Offenses
The potential criminal penalties can be found in Georgia Code 16-8-12, and are as follows:
- If the property which was the subject of the theft exceeded $24,999.99 in value, by imprisonment for not less than two nor more than 20 years;
- If the property which was the subject of the theft was at least $5,000.00 in value but was less than $25,000.00 in value, by imprisonment for not less than one nor more than ten years and, in the discretion of the trial judge, as for a misdemeanor;
- If the property which was the subject of the theft was at least $1,500.01 in value but was less than $5,000.00 in value, by imprisonment for not less than one nor more than five years and, in the discretion of the trial judge, as for a misdemeanor; and
- If the defendant has two prior convictions for a violation of a theft crime as defined in Georgia Code Sections 16-8-2 through 16-8-9, upon a third conviction or subsequent conviction, such defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years and, in the discretion of the trial judge, as for a misdemeanor.
The Misdemeanor Offense
As you can see, if the property was valued at $1500.00 in value or less, it will be punished as a misdemeanor offense and the potential punishment is 12 months in custody, a $1,000.00 fine, or both.
In addition, there are other separate and criminal penalties for specific types of cases, such as the theft of anhydrous ammonia, a memorial to the dead, among others.
How Can They Charge Me If No One Actually Saw Me Take The Item(s)?
This is a common question I get from clients. The answer is simply that each case is different, with each one dependent on their own unique circumstances. Police and prosecutors constantly try to piece together a case that they think can be successfully tried before a jury. In order to do that, they collect all kinds of evidence. For example, imagine a case where a watch was taken from someone's front porch. And then picture that the homeowner had surveillance cameras angled out in front of his house. If a defendant is pulled over on a traffic stop and he is found to be wearing that same watch, the police may be able to make out a case of Theft by Taking if the surveillance footage showed that the defendant's car had been parked in front of that house on the date of the theft.
Now on the other hand, if there was no surveillance footage and no other evidence indicating that a defendant had been at that house, simply locating the stolen watch on him may not be enough to make out a case of Theft by Taking, but it MAY be enough for them to charge him with Theft by Receiving, which is covered in another section.
The Owner Of The Property Gave It To Me. I Didn't Steal Anything.
This can and has happened many times. The reasons vary from case to case, but there have obviously been instances when a property owner has voluntarily given or sold property to another, and then notified the police and claimed that the property had been stolen. Mental health issues, a relationship that had soured...there are many reasons why this may happen.
Fortunately, the law provides an affirmative defense for a criminal defendant in such a situation. Specifically, Georgia Code 16-8-10 lists the available affirmative defenses available in theft cases. One of these defenses states that it shall be a legal defense if the person "acted under an honest claim of right to the property or service involved." In other words, the person genuinely believed that the owner had relinquished ownership of the property to him or her. This can be demonstrated by other available evidence, such as emails, text messages, subsequent acts by the owner and the defendant, among other things.