Gilliland v. State, 325 Ga. App. 854

On Jan. 8, 2011 a display model cellular phone (retail ~$450–$500) disappeared from a retail phone store.
Surveillance video showed a man identified as Grady Gilliland detaching the phone from its display and placing it in his pocket.
The phone remained missing until Jan. 19, when another customer was seen sitting in the store and the phone was later found under the chair he occupied; Gilliland had been scheduled to meet a detective that afternoon.
The accusation charged Gilliland with shoplifting by "taking possession" of the phone (not by "concealing").
At trial the court denied Gilliland’s directed-verdict motion and instructed the jury on the statutory alternatives for shoplifting and on "value"; the jury convicted.
On appeal the court affirmed, holding the evidence supported a taking-possession theory and that the unobjected-to jury instructions did not constitute plain error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for "taking possession" as alleged	Gilliland: evidence showed only concealment, not the taking-possession alleged in the accusation	State: circumstantial evidence (video showing removal, phone missing until Jan. 19, reappearance when Gilliland was to meet detective) supports a finding of taking possession	Affirmed — evidence sufficient for jury to infer taking possession beyond a reasonable doubt
Jury charge quoted statutory alternatives not pleaded	Gilliland: reading the full statute allowed conviction on an uncharged theory (concealment) — prejudicial	State: the court read the accusation, instructed burden to prove the specific allegation, and the accusation went back to jury, so the charge viewed in whole was not misleading	Affirmed — no plain error; limiting instructions and accusation in jury room cured charge risk
Supplemental instruction on "value" during deliberations	Gilliland: judge’s answer suggested value could be wholesale rather than retail, lowering threshold for felony	State: initial charge correctly defined "value" as retail; evidence established retail value > $300 and wholesale also exceeded $300	Affirmed — assuming any inaccuracy, Gilliland failed to show the instruction likely affected the outcome (no plain error)

Haney v. State, 261 Ga. App. 136 (review of directed verdict under sufficiency standard)
Sustakovitch v. State, 249 Ga. 273 (circumstantial evidence can support theft conviction)
Dukes v. State, 265 Ga. 422 (error arises if statute recited expands indictment unless limiting instruction given)
Simmons v. State, 207 Ga. App. 171 (charge viewed in entirety not misleading where limiting instructions and indictment accompany jury)
Diaz v. State, 194 Ga. App. 577 (similar to Simmons on charge context)
Kelly v. State, 290 Ga. 29 (plain-error standard for unobjected-to jury instructions)
Levin v. State, 222 Ga. App. 123 (risk of convicting on an uncharged statutory alternative)
Catoosa County v. R. N. Talley Props., 282 Ga. 373 (overruling on other grounds noted)