THIRD DIVISION
MILLER, P. J.,
MCFADDEN and MCMILLIAN, 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
November 17, 2016
In the Court of Appeals of Georgia
A16A1097. BONNER v. THE STATE.
MCMILLIAN, Judge.
Keshaun Jaemer Bonner was indicted in Fulton County on charges of armed
robbery, hijacking of a motor vehicle, and possession of a firearm during the
commission of a felony in connection with an alleged taking of a car on April 3,
2014. Bonner appeals the trial court’s denial of his plea in bar and motion to dismiss
this indictment based on double jeopardy and collateral estoppel, asserting that he
previously pled guilty in Clayton County to a felony charge of theft by receiving
stolen property involving the same car on the same day.1
1
Bonner also pled guilty to two other charges asserted in the same indictment,
a felony charge of obstruction of a police officer and a separate misdemeanor charge
of theft by taking of a wheel unrelated to the car in this case.
Bonner was indicted on the Fulton County charges on April 11, 2014, and the
Clayton County charges were asserted in an accusation dated August 8, 2014.2
Bonner pled guilty to the Clayton County accusation four months later, on December
8, 2014, while the Fulton County charges remained pending. In reciting the factual
basis for the charge of felony theft by receiving during Bonner’s guilty plea hearing,
the prosecutor stated that she expected the evidence to show that on April 3, 2014,
Bonner was in possession of a stolen car, which was the property of another, which
he knew or should have known was stolen. The trial court sentenced Bonner to a total
of eight years, with twelve months to serve,3 on the felony charge of theft by
2
Although the Fulton County indictment and the Clayton County accusation
list different owners for the car, Bonner’s attorney stated at the hearing on the plea
in bar that the charges in Clayton and Fulton Counties involved the same car , and the
State apparently does not dispute this fact.
3
The State asserts that because the Clayton County accusation did not allege
a basis for imposing a felony sentence, such as a valuation for the car, this sentence
is void, and thus it fails to support Bonner’s argument that he has a prior conviction.
See OCGA § 16-8-12 (defining punishments for, inter alia, theft by taking). However,
pretermitting whether the State has standing to attack the sentence on this ground
since it specifically asked that the sentence be imposed, the trial court expressly
informed Bonner that he was charged with felony theft by receiving in connection
with the car in this case , and he pled guilty to that charge. “In Georgia, a guilty plea
is an admission against interest and prima facie evidence of the facts admitted.”
(Citation and punctuation omitted.) Trustgard Ins. Co. v. Herndon, __ Ga. App. __
(1) (Case No. A16A0585, decided July 14, 2016) (physical precedent only).Thus,
Bonner implicitly admitted the facts supporting his conviction for felony theft by
2
receiving in this case, along with another felony offense of theft by receiving charged
in a separate indictment to which Bonner also pled guilty.4
On May 12, 2015, Bonner filed his plea in bar and motion to dismiss in the
Fulton County action asserting that the charges in both the Clayton and Fulton
County actions arose from the theft of the same car and that he could not be
prosecuted for both taking the car and receiving it as stolen property. Bonner argued
that because the charge of theft by receiving under OCGA § 16-8-7 applies only to
individuals who were not involved in the actual theft of the stolen property, his
conviction under that statute represents a judicial finding that he was not the principal
thief, barring any subsequent prosecution for crimes requiring a contradictory finding
that he did, in fact, steal the car.
taking and he does not contend that the sentence imposed is void as unsupported by
the evidence. Because the State has presented no evidence to counter the prima facie
evidence of felony theft by taking, it cannot show that the sentence is void.
4
The State also asserts that Bonner did not carry his burden on the issue of
double jeopardy because he failed to introduce evidence of the entry of the trial
court’s written judgment and sentence in the case. However, the State failed to raise
this argument below, and it is waived. See Spradling v. State, 310 Ga. App. 337, 340
(715 SE2d 672) (2011) (failure to raise evidentiary objection constitutes waiver of the
issue since this Court cannot review “an evidentiary ruling that the trial court was
never called upon to make”) (citation and punctuation omitted) (on motion for
reconsideration).
3
The trial court appeared to agree with Bonner’s analysis regarding the mutually
exclusive nature of his conviction for theft by receiving when compared to the armed
robbery and car hijacking charges alleged in the Fulton County indictment.
Nevertheless, the court denied Bonner’s plea in bar and motion on the ground that
Bonner had not yet been convicted of two mutually exclusive crimes. The court found
that if the theft by receiving charge somehow were set aside5 by the time of Bonner’s
trial on the Fulton County charges, the jury would be free to consider the charges
alleging that he had actually taken the car.
Because the facts here are undisputed and no question arises as to the
credibility of any witnesses, our review of the trial court’s ruling is de novo. Garrett
v. State, 306 Ga. App. 429, 429 (702 SE2d 470) (2010); Summers v. State, 263 Ga.
App. 338 (587 SE2d 768) (2003).
Bonner’s argument in support of his motion and plea in bar is grounded in
collateral estoppel, a doctrine incorporated into the Fifth Amendment’s prohibition
against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 443 (90 SCt 1189, 25 LE2d
469) (1970). Collateral estoppel “means simply that when an issue of ultimate fact has
5
The trial court cited no possible basis on which the Clayton County
conviction could be set aside, however, and the State has not argued or suggested that
it sought to set aside that conviction.
4
once been determined by a valid and final judgment, that issue cannot again be
litigated between the same parties in any future lawsuit.” Id. As the Georgia Supreme
Court has explained,
[c]ollateral estoppel may affect a later criminal prosecution in two ways:
(1) it may operate to bar the introduction of certain facts necessarily
established in a prior proceeding; or (2) it may completely bar a
subsequent prosecution where one of the facts necessarily determined
in the former proceeding is an essential element of the conviction
sought.
(Emphasis supplied.) Malloy v. State, 293 Ga. 350, 354 (2) (a) (744 SE2d 778)
(2013). Thus, where a defendant’s prior conviction necessarily includes a factual
finding that would prevent his conviction on other charges, further prosecution of
those charges is barred, and the trial court erred to the extent that it found that a
subsequent prosecution may proceed as long as the defendant is not convicted on the
barred charge.
The question, then, is whether Bonner’s plea to theft by receiving by retaining
the stolen vehicle barred his subsequent prosecution for armed robbery and hijacking
the vehicle. In Georgia, “[t]here is no doubt that one cannot be convicted of both
robbery of a vehicle and theft by receiving that vehicle. The offense of theft by
5
receiving is intended to catch the person who buys or receives stolen goods, as
distinct from the principal thief.” (Citation and punctuation omitted.) Thomas v. State,
261 Ga. 854, 855 (1) (413 SE2d 196) (1992). See also Camsler v. State, 211 Ga. App.
826, 826 (440 SE2d 681) (1994). The same reasoning applies to the crime of
hijacking a motor vehicle. Cf. Middlebrooks v. State, 241 Ga. App. 193, 195 (4) (526
SE2d 406) (1999) (holding that theft by receiving a motor vehicle is not a lesser
included offense of hijacking a motor vehicle because “[t]he offense of theft by
receiving is intended to catch the person who buys or receives stolen goods, as
distinct from the principal thief”) (citation and punctuation omitted). Thus, a finding
“that the goods had been stolen by some person other than the accused” is an essential
element of a conviction for theft by receiving under OCGA § 16-8-7. (Citation and
punctuation omitted.) Thomas, 261 Ga. at 855.
However, “the actus reus element of the offense [set out in that statute] may be
committed by either receiving, disposing of, or retaining stolen property.” Camsler,
211 Ga. App. at 827. Here, the Clayton County accusation alleged that Bonner had
violated the statute solely by retaining the stolen property. In Thomas, our Supreme
Court left open the question of “whether armed robbery and theft by receiving, where
the indictment alleges retaining stolen property, are mutually exclusive.” 261 Ga. at
6
855 n.1. This Court subsequently answered that question in the affirmative. Ingram
v. State, 268 Ga. App. 149, 151-52 (5) (601 SE2d 736) (2004). We take the
opportunity now to further elucidate the reason why theft by receiving by retaining
stolen property is treated in the same manner as theft by receiving or disposing of
stolen property for purposes of determining whether crimes are mutually exclusive.
Prior to 1969, Georgia law provided, that “[i]f any person shall buy or receive
any goods . . . that shall have been stolen or feloniously taken from another, knowing
the same to be stolen or feloniously taken, such person shall be an accessory after the
fact, and shall receive the same punishment” as a person convicted of stealing or
feloniously taking the property. See former Ga. Code Ann. § 26-2620, repealed by
Ga. L. 1968, p. 1249. In applying this provision, Georgia courts held that “[t]he gist
of the offense of receiving stolen goods knowing them to be stolen is the felonious
knowledge that the goods were stolen; and to constitute the offense, the person
receiving the goods must have this knowledge at the time of receiving them.” Pat v.
State, 116 Ga. 92, 92 (42 SE 389) (1902). Therefore, no violation of the statute
occurred where a defendant took possession of the goods without knowing that they
were stolen, but who, when later informed of the fact, retained possession of them.
Id.; Johnson v. State, 135 Ga. App. 768, 768 (2) (219 SE2d 25) (1975); Johnson v.
7
State, 122 Ga. App. 769, 771 (2) (178 SE2d 772) (1970); Rogers v. State, 29 Ga. App.
363 (115 SE 668) (1923).
Moreover, a conviction under this statute also required that the State prove that
someone other than the defendant, if known and apprehended, was guilty of the theft
of the property. See Clarke v. State, 103 Ga. App. 739, 739 (120 SE2d 673) (1961)
(“Before a conviction can be had for offense of receiving stolen goods . . . , every fact
essential to the conviction of principal thief, whether he be known or unknown, must
be proved, as well as that the party on trial received stolen goods with knowledge that
they were stolen.”) See also Reese v. State, 114 Ga. App. 315, 315 (151 SE2d 180)
(1966); Jackson v. State, 98 Ga. App. 135, 136 (105 SE2d 249) (1958) (holding that
where principal thief was not indicted and convicted, defendant could not be lawfully
convicted of receiving goods allegedly stolen by principal thief).
In 1968, the Georgia Legislature “enacted a comprehensive revision of the
criminal laws. Ga. L. 1968, p. 1249.” Patterson v. State, 299 Ga. 491, 505 (2) (b) (789
SE2d 175) (2016) (Blackwell, dissenting). This enactment was based on the work of
a Criminal Law Study Committee (the “Committee”) commissioned by the General
Assembly in 1961 “to undertake ‘a thorough study of the criminal laws’ and to
recommend ‘a revision of the laws relative to criminal law and procedure,’ with an
8
eye toward eliminating ‘ambiguities and inconsistencies.’ Ga. L. 1961, p. 96.” Id. at
505 (2) (b). As a part of the 1968 revision, Ga. Code Ann. § 26-2620 was repealed
and replaced, effective July 1, 1969, (Ga. L.1968, pp. 1249, 1292), with the current
version of the statute, which provides:
(a) 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.
(b) In any proceeding under this Code section it shall not be necessary
to show a conviction of the principal thief.
(Emphasis supplied.) OCGA § 16-8-7 (See also former Ga. Code Ann. § 26-1806).
The Committee’s notes6 state that these changes to the statute were intended to
simplify the “former Georgia law dealing with the receiving of stolen property,”
6
The Committee’s notes were published in the Georgia Code, and Georgia’s
appellate courts have relied upon them in a number of cases for guidance in
interpreting the state’s criminal statutes. See, e.g., Patterson, 299 Ga. at 505 (2) (b)
(Blackwell, dissenting); Adams v. State, 288 Ga. 695, 696 (1) (707 SE2d 359) (2011);
Luther v. State, 255 Ga. 706, 708 (1) (342 SE2d 316) (1986); Murray v. State, 254
Ga. 351, 352 (2) (329 SE2d 485) (1985); Thomas v. State, 246 Ga. 484, 486 (272
SE2d 68) (1980); Wells v. State, 125 Ga. App. 579, 579 (188 SE2d 407) (1972).
9
which it described as being “in a state of confusion.” The notes do not specifically
address why retention was added as another means of committing theft by receiving.
Ga. Code Ann. bk. 10, Committee Notes, Chapter 26-18, p. 349 (Harrison 1983).
However, Georgia courts have since interpreted the addition of the word
“retains” in the statute as invalidating prior precedent requiring proof that the accused
knew the property was stolen when he or she first acquired it; rather, the courts found
that “‘[a]fter the fact knowledge’ would tend to show a guilty retention under the
[revised] Code and will sustain a conviction.” Johnson, 135 Ga. App. at 769 (2). See
also Blankenship v. State, 223 Ga. App. 264, 267 (2) (477 SE2d 397) (1996) (same);
Bremer v. State, 148 Ga. App. 461, 468 (6) (251 SE2d 355) (1978) (“After the fact
knowledge that goods are stolen and retention of the goods constitutes retaining
stolen property and will support a conviction.”); Poole v. State, 144 Ga. App. 228,
230 (2) (240 SE2d 775) (1977) (“[R]etention of stolen property which a person knows
or should know is stolen without intent to restore it to the owner will sustain the
conviction even where guilty knowledge at the time of the acquisition of the stolen
property is not shown.”). Based on the history of statutory changes to the crime of
theft by receiving, it follows then that the addition of retention as method of
committing theft by receiving was intended to resolve the inconsistency in the prior
10
law that allowed a perpetrator to escape prosecution where he innocently obtained
property but chose to retain it after learning that it was, in fact, stolen.
The addition of “retaining,” thus, did not change the character of a theft by
receiving charge, which includes as “[a]n essential element of the crime . . . that the
goods had been stolen by some person other than the accused.” (Citation and
punctuation omitted.) Thomas, 261 Ga. at 855 (1). See also Smith v. State, 335 Ga.
App. 639, 641 (781 SE2d 400) (2016).7 Accordingly, in instances where the accused
was convicted of theft by receiving and/or retaining, our courts have held that he
could not also be convicted of armed robbery or robbery as the crimes are mutually
7
Justice Frankfurter once explained the reasoning behind this principle as
follows:
It is hornbook law that a thief cannot be charged with committing two
offenses – that is, stealing and receiving the goods he has stolen. . . .
And this is so for the commonsensical, if not obvious, reason that a man
who takes property does not at the same time give himself the property
he has taken. In short, taking and receiving, as a contemporaneous –
indeed a coincidental – phenomenon, constitute one transaction in life
and, therefore, not two transactions in law.
Milanovich v. U.S., 365 U.S. 551, 558 (81 SCt 728, 5LE2d 773) (1961) (Frankfurter,
J., dissenting). Similarly, someone who takes property necessarily retains it for at
least some period of time, making the two behaviors part of one continuous act.
11
exclusive. See Thomas, 261 Ga. at 856 (1) (granting new trial where jury convicted
defendant of both armed robbery and receiving stolen property); Smith, 335 Ga. App.
at 640 (vacating defendant’s guilty pleas to robbery and theft by both receiving and
retaining and remanding the case for further proceedings as to those counts); Ingram,
268 Ga. App. at 151-52 (5) (vacating defendant’s sentences for theft by taking and
theft by receiving by retaining and remanding for new trial). See also Clark v. State,
144 Ga. App. 69, 70 (240 SE2d 270) (1977) (Clark’s prior guilty plea to receiving a
stolen check writer collaterally estopped the State from attempting to prosecute him
for burglary in connection with the theft of the check writer).
Therefore, even though Bonner was charged with “retaining” and not
“receiving” stolen property, we find that Bonner’s conviction under OCGA § 16-8-7
contains an implicit and necessary finding that he was not the individual who stole
the car. See Clark, 144 Ga. App. at 70 (in convicting defendant based on his guilty
plea to charge of theft by receiving stolen check writing machine, trial court
“necessarily determined that [the theft] had been committed by someone other than
[the defendant]”) (emphasis omitted).8 Conversely, the charges of armed robbery
8
We note that this case is distinguishable from this Court’s recent opinion in
Holt v. State, __ Ga. App. __ (1) (Case No. A16A1360, decided October 28, 2016).
In that case, the defendant pled guilty to theft by receiving the victim’s stolen car
12
under OCGA § 16-8-419 and hijacking a motor vehicle under OCGA § 16-5-44.1,10
as indicted in this case, each requires proof that Bonner actually took the car. Because
these charges are mutually exclusive of Bonner’s prior conviction for theft by
retaining the vehicle, the trial court erred in denying his plea in bar and the motion
to dismiss the Fulton County indictment alleging those crimes.11 Id.
Judgment reversed. McFadden, J., concurs. Miller, P. J., concurs in judgment
only.
after he was arrested following a highspeed chase. This Court found that defendant’s
conviction on the theft by receiving charge did not bar his subsequent prosecution on
charges of armed robbery, theft by taking, and aggravated assault in connection with
the theft of the same victim’s money and cellphone at gunpoint a few days prior to
defendant’s arrest because the armed robbery was completed before the vehicle was
taken.
9
“A person commits the offense of armed robbery when, with intent to commit
theft, he or she takes property of another from the person or the immediate presence
of another by use of an offensive weapon. . . .” OCGA § 16-8-41 (a).
10
“A person commits the offense of hijacking a motor vehicle when such
person while in possession of a firearm or weapon obtains a motor vehicle from the
person or presence of another by force and violence or intimidation or attempts or
conspires to do so.” OCGA § 16-5-44.1 (b).
11
Because the Fulton County indictment charged Bonner with possession of
a firearm during the commission of hijacking a motor vehicle , that count, as charged,
must also be dismissed. We express no opinion as to any other charges that Bonner
may face based on this incident.
13