Case Information
*1 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.
M C M ILLIAN , 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.
*2 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 *3 receiving in this case, along with another felony offense of theft by receiving charged in a separate indictment to which Bonner also pled guilty.
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.
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
,
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 aside 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
,
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
,
[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
*6
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
,
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
,
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
,
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
,
In 1968, the Georgia Legislature “enacted a comprehensive revision of the
criminal laws. Ga. L. 1968, p. 1249.”
Patterson v. State
,
(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 notes state that these changes to the statute were intended to simplify the “former Georgia law dealing with the receiving of stolen property,” *10 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
,
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
,
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
,
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). “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). 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.
Notes
[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.
[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
[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.
[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
,
[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.
,
[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