Marriott v. State

320 Ga.App. 58

739 S.E.2d 68

MARRIOTT

v.The STATE.

No. A12A2001.

Court of Appeals of Georgia.

March 1, 2013.

Billy L. Spruell, Melinda Davis Taylor, Marietta, for Appellant.

Lee Darragh, Dist. Atty., Randall Carl Schonder, Asst. Dist. Atty., for Appellee.

BRANCH, Judge.

Shane Elizabeth Marriott was tried by a Hall County jury and convicted of five counts of theft by receiving stolen property ¹ and one count of theft by deception.² She now appeals from the denial of her motion for a new trial, asserting that the evidence was insufficient to sustain her convictions for theft by receiving. Marriott further contends that the trial court committed plain error in instructing the jury on the elements of theft by receiving and in refusing to instruct the jury as to her sole defense on the charge of theft by deception. We find no reversible error and affirm.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict. Martinez v. State, 306 Ga.App. 512, 514, 702 S.E.2d 747 (2010). So viewed, the record shows that on either June 4 or June 5, 2009, Marriott's parents contacted the Hall County Sheriff's Department and reported a burglary at their home. Specifically, Marriott's father told the responding officer that a number of guns were missing from his gun closet. The father subsequently told the investigator assigned to the case that he suspected his daughter, Marriott, had stolen the guns. His suspicions were based on the facts that Marriott and her parents were not on good terms at the time, that Marriott had a key to the house, and that she was the only person other than her father who knew where he kept the keys to the gun closet. Additionally, on the day they discovered the guns missing, the parents had been contacted by their next-door neighbor who reported that she had seen a car resembling Marriott's parked in the parents' driveway while they were gone from the house. Marriott's father testified to the foregoing facts at trial, and also stated that he had given Marriott neither any of his guns nor permission to sell any of them.

Based on this information, the investigator and a second officer with the Hall County Sheriff's Department traveled to Marriott's residence in Gwinnett County to interview her on June 18, 2009. During that interview, Marriott stated that she had no guns and that the only gun in the residence belonged to her boyfriend. After the officers asked for and received permission to search the apartment, she produced for them a bag of ammunition containing bullets of a number of different calibers. Marriott told the investigators that the ammunition belonged to her ex-husband, who owned a 9mm pistol. The bag, however, contained no 9mm ammunition, and Marriott's ex-husband testified at trial and denied any knowledge of the bag or the bullets therein.³ Additionally, Marriott volunteered to the officers that the ammunition in the bag was similar in caliber to guns owned by her father.

After investigators found none of the missing guns in Marriott's apartment, they asked her if she had pawned or sold any guns recently. Marriott responded that she had not, noting that the only item she had pawned recently was a necklace.

Officers interviewed Marriott a second time on July 29, 2009, at which time she indicated that she did have some knowledge of the missing guns, but that she wanted to speak with her father before discussing the matter further with law enforcement. Marriott told the lead investigator that she needed until 1:00 p.m. that day to reach her father and that she would call the investigator after that time. Marriott never contacted the officer.

On the day after his second interview of Marriott, the investigator discovered that on May 4 and June 10, 2009, she sold a total of six guns to a gun shop located in Hall County. Five of those guns were among those reported stolen by Marriott's father. The proprietor of the store testified that Marriott told him that she had inherited the guns. He also explained that the store paid Marriott a total of $1,000 for the firearms, and that it then resold them to third parties. After learning that the guns had been stolen, the store repurchased them from its customers and returned the guns to law enforcement.

On July 31, 2009, the investigator learned that on May 27, May 28, and June 4, 2009, Marriott had sold eight guns to a gun shop in Gwinnett County. All of these guns were among those reported stolen from Marriott's father. An employee of the store testified at trial that, when she sold the guns, Marriott told him that they had belonged to her father, who had recently passed away.

After discovering that Marriott had sold 13 of her father's stolen guns, the investigator and another officer interviewed her for a third time. When confronted with the evidence that she had sold the firearms to a third party, Marriott stated that her father had given her the guns.

Marriott was subsequently indicted in Hall County on 13 counts of theft by taking, 13 counts of theft by receiving, and one count each of burglary and theft by deception.⁴ The trial court directed a verdict of acquittal on the eight counts of theft by receiving related to Marriott's sale of guns to the store in Gwinnett County, based upon the State's inability to prove venue as to those counts. The jury found Marriott not guilty of the burglary count and all 13 counts of theft by taking, but found her guilty of the five counts of theft by receiving based on her sale of guns to the Hall County gun store. The jury also found her guilty of theft by deception, based on her taking $1,000 from the Hall County store in exchange for the stolen guns. Marriott now appeals from the denial of her motion for a new trial.

1. We first address Marriott's claim that the evidence is insufficient to sustain her convictions for theft by receiving. “When we consider whether the evidence is sufficient to sustain a conviction, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation and punctuation omitted.) Louisyr v. State, 307 Ga.App. 724, 727–728(1), 706 S.E.2d 114 (2011). As we have explained before,

it is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. So, if the record contains some competent evidence to prove each element of the crime[s] of which the defendant was convicted, even though that evidence may be contradicted, we must uphold the conviction.

(Citations and punctuation omitted.) Ferguson v. State, 307 Ga.App. 232, 233(1), 704 S.E.2d 470 (2010).

Under Georgia law, “[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.” ⁵OCGA § 16–8–7(a). The purpose of this offense is to punish a “person who buys or receives stolen goods, as distinct from the principal thief [of those goods]. An essential element of the crime of theft by receiving is that the goods [be] stolen by some person other than the accused.” (Citations and punctuation omitted.) Thomas v. State, 261 Ga. 854, 855(1), 413 S.E.2d 196 (1992). Thus, if at trial there is presented “direct and uncontested evidence [that] identifies the defendant as the original thief, the defendant cannot be convicted of theft by receiving.” (Punctuation and footnote omitted.) Fields v. State, 310 Ga.App. 455, 456–457(1), 714 S.E.2d 45 (2011).

Relying on the foregoing law, Marriott argues that because the only evidence presented at trial showed she was the person who stole the guns, she cannot be convicted of receiving them. This argument, however, mischaracterizes the evidence of record and fails to take into account relevant law. That law shows that for an appellate court to overturn a conviction for theft by receiving on the grounds urged by Marriott, there must be “direct and uncontested evidence[,]” as opposed to merely circumstantial evidence, “identif [ying] the defendant as the original thief.” (Citation omitted.) Phillips v. State, 269 Ga.App. 619, 631(10), 604 S.E.2d 520 (2004) (overturning conviction for theft by receiving where defendant admitted taking jewelry in question and pawning it, but defended on the grounds that he was the rightful owner). See also Fields, 310 Ga.App. at 457(1), 714 S.E.2d 45 (overturning conviction for theft by receiving where evidence showing that defendant stole the computers at issue included “video and still photographs, clearly revealing [defendant's] unobstructed face and body from several angles, depicting him as the thief stealing the laptops”) (footnote omitted). A conviction for theft by receiving will not be overturned, however, where, as here, neither party offers conclusive evidence to establish the defendant's identity as the thief and instead there is only “circumstantial evidence from which guilt of either theft by taking or receiving could be inferred.” Duke v. State, 153 Ga.App. 204–205, 264 S.E.2d 721 (1980).

For example, in Duke this Court rejected the defendant's argument that as the evidence showed he had stolen the beer at issue, that evidence could not sustain his conviction for theft by receiving. The evidence showed that the beer was stolen from a tavern in which the defendant had been seen several times on the night of the theft; the beer was found in the defendant's car, which was parked behind the tavern; the policeman responding to the report of the crime saw “a person closely resembling defendant leave the area and run up the street”; and when he was apprehended, the defendant had a...