Theft by Taking

Have you been Charged with Theft by Taking? 

In Georgia, you could be charged with theft through many ways. There is theft by taking, theft by deception, theft by conversion, theft by shoplifting, theft by extortion and so on. There are many differences in the varying types of theft, and that is why it is important to have someone on your side that understands theft in all of its areas. The Law Office of Lawson and Berry and their team of Georgia Lawyers are highly knowledgeable in these areas and are ready to help you with your case.

Theft by taking is known as larceny in other states and under the Model Penal Code for criminal conduct. However, Georgia's term for larceny is theft by taking, but the terms are synonymous. Theft by taking and larceny both refer to the mere taking of anything of value with the intent to permanently deprive the owner.    

Georgia Law

Theft by taking is the most common type of theft that appears in Georgia. Georgia defines theft by taking as occurring when 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 property is taken or appropriated. O.C.G.A. §16-8-2.

Elements of Theft by Taking

Georgia law defines deprive in two ways: either to withhold property of another permanently or temporarily or to dispose of the property so as to make it unlikely that the owner will recover it. O.C.G.A. §16-8-1 (1). Theft by taking encompasses a large area and it is important to have an Attorney that understands the subtle distinctions that could help you fight a conviction.

The "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 them jointly. O.C.G.A. §16-8-1(3). You cannot be guilty of theft if you take assets that you have some ownership in. But anything else will be considered theft.

How do Determine the Value of the Property? 

The proper measure of value under O.C.G.A. § 16-8-12 is the fair cash market value either at the time and place of the theft or any stage during the receipt or concealment of the property. Buckley v. State, 270 493, (2004). However, other evidence can be introduced as to the item's value such as the testimony of the owner of the value of the stolen items based on his experience in buying them, the jury's awareness of the everyday value of the property, or other opinion evidence. Smith v. State, 207 Ga. App. 290, (1993).

Case Law

A man was convicted of misdemeanor theft when he broke into a victim's house and took a gun valued at $80.00. The man's sister found the gun a month later and turned it into the police. He was convicted of both burglary and misdemeanor taking by theft. Meeks v. State, 274 Ga. App. 517, (2005).

A defendant was convicted of felony theft when he stole personal property from the house of two victims' and then took another victim's car. Because the items were worth more than $1,500, the Court found the defendant guilty of felony theft.

In another case, the suspect went to an automotive shop and test drove a car. He returned the car that day, but the owner noticed that the car was gone the next day. The suspect was found driving the car hours after it was stolen with the duplicate key. The jury concluded that the evidence showing the defendant had an interest in the car along with the ability to have a duplicate key made during the test drive authorized them to convict him of theft by taking. Kelly v. State, 313 Ga. App. 582, (2012).

Penalty for a Theft by Taking Conviction in Georgia

The penalty for theft by taking can either be a misdemeanor or felony in Georgia, depending on the amount. If the property taken was under $1,500, it will generally be treated as a misdemeanor charge. Misdemeanor charges can come with a fine up to $1,000 or a jail term up to 1 year. If a defendant receives a jail term of six months or less, then the judge has the ability and discretion to allow the sentence to be served via weekend confinement or during the defendant's non-working hours.

When the theft involves property valued between $1,500 and $5,000, it is considered a felony punishable by a jail term between 1 and five years. However, the judge does have the discretion to charge it as a misdemeanor. 

For property valued between $5,000 and $25,000, the judge has the discretion to treat it as a misdemeanor or a felony charge punishable by a jail term between one and ten years. 

If the property was valued at $25,000 or more, it will be treated as a felony, punishable by a prison term between two and twenty years. 

If a defendant has already had two convictions of theft by taking, upon a 3rd or subsequent conviction, the defendant will be guilty of a felony, punished by a prison term between one and five years. However, the judge does have the discretion to treat it is a misdemeanor. 

There are additional circumstances in which theft is punished as a felony in Georgia. These include:

  • If the theft was any amount of anhydrous ammonia, the punishment will be a prison term between one and ten years, a fine, or both. 
  • Theft of government or bank property by an employee. If found guilty of this, the consequence is a one to 15-year prison sentence and/or a fine.
  • Theft involving a gravesite or cemetery decoration. This carries a punishment of one to three years in prison.
  • Theft of grave market, monument, or memorial to one or more deceased persons who served in the military or a monument, plague, market, or memorial dedicated to military service. If the property taken was $1,000 or less, the penalty is a prison term between one and three years. If the property taken was more than $1,000, then the consequences is a prison term between three and five years. 

In addition to a prison sentence or fine, there are other consequences of committing theft. The person you stole from could bring a civil action against you for damages. They could sue you and recover monetary damages. The monetary damages could include:

  • Compensatory damages which would include the value of the property and any other loss sustained as a result of the theft
  • Liquidated exemplary damages amounting to $150 or twice the value of the loss (as long as the total amount of the claim is less than $5,000)
  • Or the costs of bringing the suit against you

Defenses to Theft by Taking in Georgia

Repossession is not theft: The Court has found that where a defendant was to repossess property under an honest claim of right after the purchases defaulted on their payments was not theft, and it was allowed. Edens v. State, 197 Ga. App. 146, 1990. An example of this is a department store reclaiming the television they sold to a person because he defaulted on the payments. The store would not be guilty of theft by taking because they were entitled to take back the television.

Innocence: If you have an alibi or witness testimony, your Georgia Theft Attorney can use this to help fight the theft charge.

I didn't steal anything: If you attempted to take something but were not able to gain possession of the property, then you cannot be guilty of theft, but you could still be guilty of an attempt to commit theft.

I should only be charged with one count of theft and not multiple: When several items are stolen at the same time, then the defendant has committed only one offense, even though there may be more that one person who owns the items. Hubbard v. State, 168 Ga. App. 778, (1983). The test is whether or not the items were stolen as part of a continuous criminal act. If it was an ongoing criminal act, then there can only be one count of theft and one conviction. Bigby v. State, 184 Ga. App. 94, (1987). In the Bigby case, the defendant found a trailer and stole the trailer along with cargo. The accused was charged with two counts of theft by taking. However, the Court set aside the cargo conviction because only one conviction and one sentence can be had when several items were stolen as part of a continuous criminal act.

Lack of Intent: Because theft by taking requires specific intent to deprive another individual of his or her property, without having that intent, you cannot be guilty of the crime. Your Georgia Theft Attorney can help establish that you lacked the specific intent to complete theft. An example would be if you legitimately forgot to return a borrowed item to its rightful owner. In that case, you would lack the intent to steal the item because you had consent to borrow the item. However, if the rightful owner repeatedly had asked you to return the item, and you ignored his requests, then it becomes less likely that you didn't intend to permanently keep the property.

Acting under an honest claim of right to the property: If you believed that the property did in fact belong to you, then that is an affirmative defense under O.C.G.A. § 16-8-10. 

I just meant to borrow it: An example of this could be that your neighbor left his scooter outside his house, and you knew he was out of town for the week. You take the scooter for the week intending to return it before he got home so he would never know you borrowed it. However, your neighbor returns home early and notices that his scooter is gone. He files a police report claiming that it was stolen. You had no intention of taking the scooter, and there is no any evidence that you did not plan to return it. Here, your Georgia Theft Attorney would need to show a good alibi and possibly argue that you and your neighbor were on good enough terms that he understands you would not have stolen the scooter in order not be guilty of the crime of theft.

Intoxication: Because theft by taking is a specific intent crime, you may be able to defend successfully against that charge if you can show that you were intoxicated at the time the theft occurred. If you were unable to form the required intent to steal, you might have a viable intoxication defense. This argument only applies if the intoxication is involuntary. If you voluntarily become intoxicated, this no longer applies to you.

There are a plethora of other arguments that can be used for theft so call one of our Theft Attorneys in Georgia if you have been charged with theft by taking. Your Lawyer will tailor a strong defense based on your case.

What are not Defenses

I had consent to keep it after I stole it: Even if you receive permission to keep the property from the owner after you took the property, you will still be guilty of theft because it was originally taken with the intention of stealing it. Henderson v. State, 167 Ga. App 808, (1983).

It was only one criminal act and not two: In the case of Cook v. State, the Court found that stealing a car was one criminal act but then stealing money from the car was a second criminal act that was separate and distinct from the earlier theft of the car. 180 Ga. App. 129, (1986). The money was in a hiding place, and the defendant was unaware of its presence until later when he became searching the car. The test for determining whether it is one act or two is whether it was one continuous act. Here there was a break between the taking of the car and the money.

I only meant to take it for a little while: It doesn't matter whether you intended to take the property permanently or just for a little while; there was still intent to commit theft. Smith v. State, 172 Ga. App. 356, (1984). The key is that you have to establish that you had the intent to return the property at the time it was taken. If you can prove this, then you will likely be able to defend against theft charges.

I returned the property: Returning stolen property does not provide a defense to a charge of theft by taking. However, returning the property could help you look more sympathetic to a jury, and your Attorney could use that action to obtain a lesser penalty for your case.

Also, how the taking was accomplished cannot be a defense to theft by taking. The Court does not look at the manner in which the property was taken because the statutes do not define an unlawful taking and makes the method of the taking irrelevant. Theft by taking only requires the taking of the property of another against the will of that person, regardless of whether the property is taken or appropriated and the manner of the taking or the appropriation. Clark v. State, 138 Ga. App. 266 (1976).

Contact Us

Contact us today to schedule a free consultation with one of our Georgia Theft Lawyers. Formulating a defense on your own can be overwhelming and seemingly impossible. Our Attorneys are highly knowledgeable and will assist you in formulating the best possible defense for your case. We will walk you through every step of the process, and we are dedicated to being accessible to you- days, nights, weekends, and holidays while working hard on your behalf. Your Attorney will make sure you understand all of your options and advise you on the best approach to take for your case based on their many years of experience. Don't wait to contact one of our Lawyers. Your future is at stake so do not sit around waiting for your case to resolve itself.

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