FIRST DIVISION
DOYLE, C. J.,
BOGGS and PETERSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 22, 2016
In the Court of Appeals of Georgia
A15A2104. LINDSAY v. THE STATE. BO-079C
BOGGS, Judge.
Following a bench trial, Mark Lindsay appeals from his convictions for seven
counts of theft by receiving stolen property.1 He contends that insufficient evidence
supports each of his convictions, that his constitutional right to a speedy trial was
violated, that he received ineffective assistance of counsel, and that the trial court
erred in its sentence. Based upon the State’s failure to prove an essential element of
the crimes it charged Lindsay with committing, we reverse.
1
Lindsay was acquitted on an eighth count.
The State indicted Lindsay for theft by receiving various tangible goods that
were purchased with funds embezzled from the victim by Lindsay’s mistress.2 It is
undisputed from the evidence presented at trial that the goods given to Lindsay were
not taken from the victim. Instead, his mistress purchased the items with funds she
had embezzled and then gave the items to Lindsay. The State presented evidence that
Lindsay knew the items had been purchased with the employer’s funds.
1. Lindsay asserts that his conduct in receiving goods purchased with stolen
funds cannot satisfy the “receiving stolen property” element of OCGA § 16-8-7 (a).
As the trial court noted below, this is an issue of first impression in Georgia. When
considering this issue, we must bear in mind that “[w]here the violation of a statute
is made criminal, it must be tested by the rule of strict construction applicable to
criminal statutes.” (Citation and punctuation omitted.) Burmaster v. State, 233 Ga.
753, 755 (213 SE2d 650) (1975). “[I]n applying this rule the plain meaning of
language must not be disregarded, but will be given full effect.” Cargile v. State, 194
Ga. 20, 23 (2) (20 SE2d 416) (1942). And “[w]hen a criminal statute fairly and
reasonably is subject to two constructions, one which would render an act criminal,
2
The State did not charge Lindsay with theft by taking as a party to a crime or
conspiracy. See OCGA §§ 16-2-20 (party to a crime), 16-4-8 (conspiracy), 16-8-2
(theft by taking).
2
the other which would not, the statute must be construed strictly against the State and
in favor of the accused.” (Citation and punctuation omitted.) Frix v. State, 298 Ga.
App. 538, 542-543 (1) (a) (680 SE2d 582) (2009).
OCGA § 16-8-7 (a) provides:
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. “Receiving” means
acquiring possession or control or lending on the security of the
property.
In support of its argument that goods purchased with stolen funds qualify as
stolen property, the State asserts that property traceable to stolen funds remains the
property of the victim of the theft through equity. See OCGA § 53-12-132 (a)
(creation of constructive trust); First Nat. Bank &c. v. Hill, 412 FSupp. 422, 425
(N.D. Ga. 1976) (it is a “general rule of common law that no title is acquired by an
embezzler, but that such title remains in the victim, who is the beneficial owner of a
constructive trust which is imposed on such monies or on property purchased with
such money”). Compare Atlanta Classic Cars, Inc. v. Chih Hung USA Auto Corp.,
209 Ga. App. 908, 910 (2) (439 SE2d 498) (1993) (no constructive trust imposed
3
where defendant had no knowledge that party was converting another’s money by
paying off amounts for the purchase of cars); see also OCGA § 23-1-14 (“When one
of two innocent persons must suffer by the act of a third person, he who put it in the
power of the third person to inflict the injury shall bear the loss.”) In a case involving
an indictment which alleged the wrong owner of stolen goods, we held that “[t]he
technical quality of an owner’s interest need not be pursued in a prosecution for theft
by receiving, because ownership is important only in the sense of whether the goods
were owned by someone other than the accused.” (Citation, punctuation, and footnote
omitted.) Greeson v. State, 253 Ga. App. 161, 165 (4) (558 SE2d 749) (2002).
But whether the owner may have had an equitable interest in the goods
purchased by the mistress with the embezzled funds begs the question of whether
these particular goods satisfy the “stolen property” element of OCGA § 16-8-7 under
a plain reading of the statute. After carefully considering this issue, we conclude that
a common sense reading of the plain language of the statute requires the State to
prove that the tangible goods received by the defendant were the same goods that
were taken from the owner. See Causey v. State, 139 Ga. App. 499, 500 (1) (229
SE2d 1) (1976) (state must present evidence sufficiently identifying goods in
defendant’s possession as same goods that were stolen). “The unambiguous words of
4
a criminal statute are not to be altered by judicial construction so as to punish one not
otherwise within its reach, however deserving of punishment his conduct might
seem.” (Citation omitted.) Waldroup v. State, 198 Ga. 144, 145 (30 SE2d 896)
(1944). Accordingly, we reverse Lindsay’s convictions for theft by receiving stolen
property.
2. Our holding in Division 1 renders Lindsay’s remaining enumerations of error
moot.
Judgment reversed. Doyle, C. J. and Peterson, J., concur.
5