FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, 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
February 20, 2020
In the Court of Appeals of Georgia
A19A1828. TURNER v. THE STATE. CO-063C
COOMER, JUDGE.
Following a jury trial, Xavius Turner was convicted of two counts of theft by
receiving stolen property (Counts 3 and 7), one count of armed robbery (Count 4),
and one count of battery (Count 6).1 Turner filed a motion for new trial, which the
trial court denied. On appeal, Turner contends that the verdict finding him guilty of
both armed robbery in Count 4 and theft by receiving in Count 7 was barred because
those crimes were mutually exclusive. We agree. Consequently, we reverse his
convictions of theft by receiving (Count 7) and armed robbery.
1
In a single indictment, Turner was charged with crimes related to two separate
robberies. The jury acquitted Turner of the charges involving the first robbery, except
for one count of theft by receiving for disposing of the first victim’s purse (Count 3).
The facts and charges involving the first robbery have not been challenged and thus
are not relevant to the instant appeal.
Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.
S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the trial evidence shows that on February
26, 2017, the female victim was exiting her vehicle at an apartment complex parking
lot when Turner approached her from behind and attempted to grab her purse. When
the victim refused to relinquish possession of her purse, Turner put a gun to the
victim’s head and demanded the purse. The victim refused Turner’s demand. Turner
then slapped the victim’s face, which caused the victim to let go of her purse. After
snatching the victim’s purse, Turner fled from the scene in a white Nissan Altima.
Although Turner wore a black hoodie and bandana covering his mouth, the
victim testified that she was able to see a part of Turner’s face during the incident.
The victim called police to report the incident and provided the responding officer
Turner’s physical description as the perpetrator.
When the victim’s purse was stolen, it contained her old cell phone that she no
longer used. The investigating officer obtained the serial number of the cell phone
and traced it through a pawn database to an ecoATM location where the cell phone
had been pawned. The ecoATM machine required that anyone depositing a phone
provide identification in the form of a signature, thumb print, and a scanned driver’s
license. The ecoATM machine also functioned to take photographs of the depositor
2
from three different angles. When Turner deposited the victim’s cell phone, he
provided his own driver’s license and his photograph was taken. The investigating
officer obtained Turner’s identification and photograph from a report generated by
the ecoATM system.
The victim’s stolen purse was recovered from the premises of a different
apartment complex. Although several of the victim’s belongings were still in the
purse, the victim noticed that her cell phone and $300 were missing.
As part of the investigation, the investigating officer conducted surveillance
outside of Turner’s residence. The investigating officer observed Turner driving a
white Nissan Altima matching the description that had been provided by the victim.
The investigating officer also obtained a search warrant for Turner’s residence. Upon
executing the search warrant, the investigating officer discovered a ski mask and the
victim’s cell phone case matching the descriptions that the victim had provided. At
trial, the victim identified Turner as the perpetrator of the armed robbery.
Turner was arrested, charged, and convicted of several crimes related to the
second incident. Following the denial of his motion for new trial, Turner filed the
instant appeal, contending that he could not be convicted of both armed robbery
3
(Count 4) and theft by receiving (Count 7) because those crimes were mutually
exclusive. Turner’s argument is correct.
Where, as here, “the evidence is uncontroverted and no question regarding the
credibility of witnesses is presented, we review de novo the trial court’s application
of the law to undisputed facts.” Garrett v. State, 306 Ga. App. 429, 429 (702 SE2d
470) (2010) (citation omitted). “A verdict is mutually exclusive where a guilty verdict
on one count logically excludes a finding of guilt on the other. Mutually exclusive
verdicts, which cannot both stand, result in two positive findings of fact which cannot
logically mutually exist.” Clark v. State, 289 Ga. App. 612, 616 (2) (658 SE2d 190)
(2008) (citation and punctuation omitted). Our Supreme Court has explained that
“[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. An essential element of the
crime of theft by receiving is, that the goods had been stolen by some person other
than the accused.” Thomas v. State, 261 Ga. 854, 855 (1) (413 SE2d 196) (1992)
(citations and punctuation omitted). A “conviction under OCGA § 16-8-7 contains
an implicit and necessary finding that [a defendant] was not the individual who stole
the [property].” Bonner v. State, 339 Ga. App. 539, 545 (794 SE2d 186) (2016)
(physical precedent only).
4
We note that the 1969 Criminal Code enacted the present language defining the
theft by receiving offense as occurring when a defendant “receives, disposes of or
retains stolen property.” Ga. Laws 1968, p. 1249. But our precedent confirms that the
addition of this language “was not intended to alter the fact that the heart of the crime
is guilty possession by someone who is not the thief.” Ingram v. State, 268 Ga. App.
149, 152 (5) (601 SE2d 736) (2004) (citation and punctuation omitted). See also
Sosbee v. State, 155 Ga. App. 196, 197 (270 SE2d 367) (1980) (holding that theft by
receiving, in the context of a defendant’s disposal of stolen property, “is intended to
catch the person who buys or receives stolen goods, as distinct from the principal
thief.”). Moreover, this Court has recently held that “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.”
Bonner, 339 Ga. App. at 542 (physical precedent only; emphasis supplied).2
2
Although the State seeks a statutory interpretation that would create an
exception to the rule of mutual exclusivity for theft by receiving by disposing of the
stolen property, we decline to draw the requested distinction. As established by
Thomas and this Court’s precedents, the provision of different manners in which the
theft by receiving offense can be committed (i.e., receiving, disposing of, or retaining
stolen property) was not intended to alter the fact that an essential element of the
crime is that the goods were stolen by some person other than the accused. See
Thomas, 261 Ga. at 855 (1); Sosbee, 155 Ga. App. at 197; Ingram, 268 Ga. App. at
152 (5). “Our decision is reinforced by subsection (b) of [OCGA] § 16-8-7, which
5
Consequently, the established rule is that a defendant cannot be convicted of theft by
receiving based on his disposition of property that he had already stolen. See Thomas,
261 Ga. at 855 (1); Clark, 289 Ga. App. at 616 (2); Ingram, 268 Ga. App. at 152 (5);
Sosbee, 155 Ga. App. at 197.
Here, the theft by receiving conviction at issue involved the victim’s purse and
cellphone, which were taken during the armed robbery. By finding Turner guilty of
armed robbery, the jury necessarily found that Turner was the person who had stolen
the victim’s purse and cellphone during the armed robbery.3 As such, Turner was the
principal in the theft of the stolen property. But, as set forth above, our precedent
consistently holds that “one cannot be a principal thief of stolen property and at the
same time be convicted of theft by receiving the same property.” Clark, 289 Ga. App.
at 616 (2). See also Thomas, 261 Ga. at 855 (1); Sosbee, 155 Ga. App. at 197.
Because the crimes were mutually exclusive, we reverse Turner’s convictions on the
states that ‘[i]n any prosecution under this Code section it shall not be necessary to
show a conviction of the principal thief.’ Subsection (b) shows that the legislative
intent of subsection (a) was to prosecute someone other than the principal thief.”
Ingram, 268 Ga. App. at 152 (5).
3
The victim testified that the cellphone at issue was inside of her purse at the
time of the armed robbery. As such, when Turner stole the victim’s purse, he also
stole her cellphone.
6
crimes of armed robbery in Count 4 and theft by receiving in Count 7. Turner’s
convictions for theft by receiving in Count 3 and battery in Count 6 remain intact. See
Clark, 289 Ga. App. at 616-617 (2).
Judgment affirmed in part and reversed in part, and case remanded. Doyle, P.
J., and Markle, J., concur.
7