Williams v. State

Beasley, Judge.

Appellant was convicted of the offense of theft by taking of assorted clothing of a value in excess of $500. OCGA § 16-8-2.

Bowen, the security manager for a department store in the Albany Mall, believed that “internal theft” was occurring within the store. One morning he saw employee Dollarson remove a lamp shade from a cardboard box and replace the shade with women’s clothing. He saw Dollarson take the box, which weighed 50 to 60 pounds, on a hand truck to the freight elevator and conceal it with other boxes. Bowen kept the area under surveillance and notified another security officer, who watched the area through a security camera. They saw Dollarson take the box and remove it from the store and place it on the loading dock beside the trash compacter.

Before Dollarson placed the box on the loading dock, the appellant was observed in his pickup truck, “mak[ing] several passes behind the mall,” and park in a position with “a straight shot down to [the store’s] dock doors at shipping and receiving.” The box was not on the loading dock when appellant first started driving by it. After Dollarson left the box on the loading dock, Bowen saw appellant drive “his truck down into our loading dock. ... He opened the box, looked in it, picked up the box, and I let him set the box in the bed of the truck before I did anything with him.” Appellant was arrested and stated that he was just “getting empty boxes.”

At trial appellant testified that he had been a scavenger for about seven years and looks around department store dumpsters for boxes and merchandise that may be left outside for the garbage collectors. He sells the boxes to his cousin, who resells them. He went to the store that day because his birthday was coming up and he wanted to buy himself a pair of pants. However, he has polio and wears a brace on his leg and it was “bothering [him].” He lowered his pants to adjust the brace and then just said to himself that he would return the next day and started to drive away, but he saw “the box” outside the store’s doors near what he perceived to be a dumpster. He said: “So I backed up. ... I just pulled the truck in there. That is all that I did and I got out and I looked at the box. ... I said, ‘Something in here .... It is heavy.’ ” He did not have an opportunity to determine its contents or put it in the rear of his pickup truck because the store representatives came out and accused him of theft. He denied that he opened the box or looked in it, and he definitely did not move it onto his truck.

Dollarson had lived at 1309 East Roosevelt in Albany all of his life. Williams lived at 1125 East Roosevelt, a couple of blocks from Dollarson, since 1983, but claimed he did not know him.

1. As to the “general grounds,” when the evidence is viewed in the light favorable to the verdict, the evidence is sufficient to enable any rational trier of fact to find the existence of the offense charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. It is argued that the trial court erred in refusing to give appellant’s requested charge “number five, a statement of law taken from OCGA § 16-8-10.” Neither the record nor the transcript contains appellant’s requested charge. However, the colloquy between counsel and the court makes evident that it involves subsection (2) of OCGA § 16-8-10, which states: “It is an affirmative defense to a prosecution for violation of Code Sections 16-8-2 through 16-8-7 that the person ... (2) Acted under an honest claim of ... a right to acquire . . . [the property] as he did. ...” Appellant cites Calloway v. State, 176 Ga. App. 674 (337 SE2d 397) (1985) as authority for his claim that because this was his only real defense, the court’s failure to charge on it is reversible error.

Defendant’s sole defense was that he thought the box and contents outside the store were discarded trash which he was free to take. He did not say specifically that he picked it up or moved it, but it appears from what he said that he did, so the lack of asportation was not available to him as a defense. He did not deny that the box and contents had not in fact been discarded by the store but claimed he only later learned this. In these circumstances, his only defense was the statutory one.

Thus the trial court was obligated to charge the principle quoted, as defendant’s counsel urged by an apparently handwritten charge submitted at the close of the evidence. Even if the submission of the request was not properly accomplished or perfected on appeal, the requirement would remain. Griffin v. State, 154 Ga. App. 261, 264 (3) (267 SE2d 867) (1980) quotes the long-standing rule in this state, which requires instruction to the jury on the rules of law related to the sole defense, the absence of which “prejudices the defendant’s right to a fair and impartial trial.” A new trial is called for.

3. The trial court correctly charged on the law of asportation as it applies to theft by taking. Webb v. State, 184 Ga. App. 89, 90 (360 SE2d 643) (1987); Brown v. State, 135 Ga. App. 323 (1) (217 SE2d 500) (1975).

Judgment reversed.

Banke, P. J., Sognier and Benham, JJ., concur. Carley, J., concurs in the judgment only. Birdsong, C. J., Deen, P. J., McMurray, P. J., and Pope, J., dissent.