Nesmith v. State

Pope, Judge.

Appellant was convicted after a jury trial of misdemeanor theft by shoplifting, and was sentenced to one year on probation and fined $252. At trial, the State adduced evidence that appellant was observed by a security guard at Wal-Mart interchanging price tags from lower-priced items to higher-priced items. On appeal two errors are enumerated. Held:

1. Appellant alleges that the trial court erred in failing to grant a motion for directed verdict on the ground that the evidence was insufficient to prove the offense described in the accusation. The accusation by the State charged, in pertinent part, that appellant committed the act of shoplifting by “alter [ing] the price marking on goods, to wit: Changing the price from $2.45 to $1.08 (Pentel Pencil), also changing the price from $34.96 to $16.00 (Westbend Iron). . . .” OCGA § 16-8-14 (a) provides that “[a] person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following: (a) Conceals or takes possession of the goods or merchandise of any store or retail establishment; (2) Alters the price tag or other price marking on goods or merchandise of any store or retail establishment; (3) Transfers the goods or merchandise of any store or retail establishment from one container to another; (4) Interchanges the label or price tag from one item of merchandise with a label or price tag for another item of merchandise; or (5) Wrongfully causes the amount paid to be less than the merchant’s stated price for the merchandise.”

Appellant argues that because the State charged that appellant altered the price, pursuant to OCGA § 16-8-14 (a) (2), but that the evidence showed instead that appellant interchanged prices pursuant to OCGA § 16-8-14 (a) (4), the conviction must be set aside for fatal variance between the allegation and the proof. The State argues that the code section sets out a number of ways shoplifting may be committed and that those ways overlap. Essentially, the State contends that interchanging prices is included within the meaning of altering prices. We cannot agree. Webster’s Third New Intl. Dictionary (Unabridged 1981) defines “alter” as follows: “to cause to become different in some particular characteristic . . . without changing into something else.” Webster’s at 63. “Interchange” is defined by the same dictionary as “[putting] each of (two things) in the place of the other.” Webster’s at 1177. Therefore, “interchange” by definition cannot be subsumed into “alter,” as can be done with “force” and “sudden snatching” in the context of armed robbery. Thus, the State’s reliance on Dotson v. State, 160 Ga. App. 898 (1) (288 SE2d 608) (1982), is misplaced.

We find that the present case is controlled by Walker v. State, 146 Ga. App. 237 (1) (246 SE2d 206) (1978). Walker was charged with theft by taking for “unlawfully tak[ing]” tools left in a car he was repossessing for a bank. The indictment charged him with motor vehicle theft as well as theft by taking. The court in Walker found that theft by taking could occur in one of two ways: (1) by unlawfully taking, or (2) by being in lawful possession, and then unlawfully appropriating the property of another. The court further found that the State had laid its charge in terms of unlawful taking. When the trial court directed a verdict on the charge of motor vehicle theft because Walker was in lawful possession of the car as the repossessing agent of the bank, the manner of the theft of the tools was shifted from unlawful taking to lawful possession with unlawful appropriation. The court in Walker reversed the conviction of theft by taking. It rejected the argument by the State, also made in the present case, that no fatal variance occurred because there was no surprise to the defendant, following the criteria set out in DePalma v. State, 225 Ga. 465 (3) (169 SE2d 801) (1969). In discussing the requirements set out in DePalma, the court in Walker noted that an “old but sound rule” of Georgia law was unchanged by the decision in DePalma. “The Supreme Court in Fulford v. State, 50 Ga. 591, 593 (1874), held: ‘We recognize the rule that it is not necessary to prove allegations in an indictment which are immaterial or purely surplusage. But the question is, what are immaterial averments? . . . Bishop says: “If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance.” ’ ” Walker at 241-42. The accusation and the proof are at fatal variance in the present case. We acknowledge the State’s argument here, as did the court in Walker, that the crime charged may be committed in more than one manner. However, “whenever exigencies of proof exist as to whether an offense was committed in one of two methods proscribed by a statute, the prosecution may charge the accused in separate counts of a single indictment and let the jury select which method the evidence supports. [Cits.]” Walker at 243. The conviction must be reversed.

2. In her second enumeration, appellant argues that the trial court erred in charging the jury that one means of altering a price was to interchange the price tags. For the reason set out in Division 1, we agree that it was error to so charge.

Judgment reversed.

Birdsong, C. J., Sognier, Benham, and Beasley, JJ., concur. Beasley, J., also concurs specially. Been, P. J., McMurray, P. J., Banke, P. J., and Carley, J., dissent.