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   Burglary-Thefts

BURGLARY

            In Georgia, burglary is defined as entering the dwelling of another without authority with the intent to commit a felony or theft.  Intent to steal or commit a felony need not be formed at the precise moment of entry, but can be formed thereafter while the perpetrator is remaining on the premises. State v. Jones, 291 Ga. App. 296 (2008).  Although burglary is often regarded as a type of theft crime, Georgia recognizes that any non-theft felony (e.g. aggravated assault, aggravated stalking) can give rise to a burglary charge.  More importantly, it is not necessary to actually commit a theft or felony, in order to complete the crime of burglary. State v. Alexander, 279 Ga. App. 683 (2005).  As long at the intent in entering the premises is to commit a felony or theft, the burglary statute (O.C.G.A. § 16-7-1(a)) permits the prosecutor to seek an indictment for the offense of burglary.

            Unlike other states, forced entry is not an element in Georgia. State v. Gray, 291 Ga. App. 573 (2008).  Unlawful entry occurs when a person breaks the plane of the structure.  In other words, when a person passes over or through a window or door, without authority, and with the intent to commit a theft or felony, a burglary occurs.

            Lawrence Lewis has a great deal of experience representing clients accused of burglary, and has seen three interesting facets to burglary cases: (1) clients charged with burglary are often charged with not one, but multiple burglaries; (2) the crime of burglary often involves multiple people, so the law concerning party to a crime often appears in the burglary case; and (3) many times the person accused of burglary is not located inside of the house, or even seen leaving the house, but is caught with goods stolen from the house that has been recently burglarized.

Eighty percent (80%) the clients charged with burglary in the last ten years have been charged with multiple burglaries.  The typical fact pattern:

Defendant is found in possession of a stolen item (i.e. trying to sell kitchen appliances on E-Bay, pawning a VCR or I-Pad at the local pawn shop, etc.).  The police discover that the defendant was in recent possession of stolen items and question the defendant, while procuring search warrant.  If the defendant does not admit to one or more burglaries (and many do on videotape), the search warrant reveals a number of stolen items at the defendant’s residence.  Each stolen item is cross-checked against recent burglaries and the police charge the defendant with every one of the burglaries, where stolen items are recovered.

Often a burglary indictment will contain multiple defendants, where some defendants are charged as a party to the crime.  O.C.G.A. § 16-2-20(a) states: Every person concerned in the commission of a crime is a party thereto.  Any party who did not directly commit the crime may be indicted, tried, convicted and punished for the commission of the crime upon proof that the crime was committed and he was a party thereto, despite the outcome of the one who directly committed the crime. State v. White, 257 Ga. 236 (1987).  Simply put, everyone that was in the vehicle when the vehicle drove up to the dwelling and everyone in the vehicle when the vehicle left the dwelling with the stolen property can be indicted for burglary.  The driver that remains in the vehicle, talking on the telephone, and the lookout that never goes into the house are parties to the crime of burglary, and are charged the same as the person that actually broke into the house and removed the flat screen from the wall.  The difference may be that the driver that never enters the residence may have an affirmative defense, such as he was unaware that the persons that actually entered the property did not have authority to enter the premises. 

As you can guess that affirmative defense may work when there is only one burglary, but that defense begins to fall apart if there are multiple burglaries and/or the co-defendants begin to provide evidence that everyone knew that the dwellings were being burglarized.  However, presence alone at the burglary scene is insufficient; and approval of the act is insufficient if it does not amount to encouragement. State v. Bullard, 263 Ga. 682 (1993). 

Who will determine if someone is a party to a crime?  Who will determine if someone is merely present at the burglary scene?  Often times it will be a jury.  Because it will be a jury, it is imperative that you hire an experienced criminal defense attorney.  Once a person has been charged with burglary, it is usually in his/her best interest to obtain the services of a reliable Georgia criminal defense attorney, like Lawrence Lewis.

As mentioned earlier, many times the person accused of burglary is not located inside of the house, or even seen leaving the house, but is caught with goods stolen from the house that has been recently burglarized (i.e. recent possession).  Evidence of recent, unexplained possession of some or all of the stolen goods may be sufficient to give rise to an inference that the defendant committed the burglary.  Once it is shown that goods were stolen in a burglary, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for burglary based upon recent possession of the stolen goods. State v. High, 282 Ga. 244 (2007).  What constitutes recent possession – i.e. the amount of time that has elapsed between the theft and the possession – to justify a conviction for burglary is a matter of argument for the prosecutor and your experienced trial attorney.

A conviction for burglary carries a possible sentence of one to twenty years, while a conviction for theft by receiving stolen property only carries a penalty of one to ten years.  Therefore, where recent possession of stolen property is indefensible (i.e. client either admitted to knowing property was stolen, or client possessed property under circumstances where any reasonable person must have known the property was stolen), the defendant may avoid a burglary conviction by pleading to a theft charge.

THEFTS

Although there are many different types of theft charges in Georgia, most carry the same penalties.  Under O.C.G.A. § 16-8-12(a) if the value of the stolen items is less than $ 500, then the defendant is charged with a misdemeanor.  However, if the value of the item is more than $ 500, OR  the stolen property is a firearm or motor vehicle, the defendant may be sentenced from one to ten years, or for a misdemeanor at the judge’s discretion.  Value is not an element of the crime, only an issue for ascertaining punishment.  Value is calculated as: (1) the fair market value either at the time and place of the theft, or at any time during the receipt or concealment of the property; (2) the cost price, if coupled with other evidence; or (3) the testimony of the owner of the value of stolen items based upon his experience in buying them, coupled with the jury’s awareness of the value of everyday objects. 

The aforementioned sentencing structure applies to the following thefts:

(1)   Theft by Taking, which is defined under O.C.G.A. § 16-8-2 as the unlawful taking, or unlawful appropriating of any property of another with the intention of depriving the lawful owner of the property, regardless of the manner in which the property is taken;

(2)   Theft by Deception, under O.C.G.A. § 16-8-3(a) occurs when the accused obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property (e.g. scam artist);

(3)   Theft by Conversion, under O.C.G.A. § 16-8-4(a) occurs when the accused, having lawfully obtained funds or other property of another, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation (fraudulent intent distinguishes criminal conversion from a breach of contract);

(4)   Theft by Receiving Stolen Property, under O.C.G.A. § 16-8-7(a) occurs when the accused receives, disposes of, or retains stolen property which he knows or should have known was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner; and

(5)   Theft of Lost or Mislaid Property, under O.C.G.A. § 16-8-6 occurs when the accused comes into control of property that he knows or learns to have been lost or mislaid and appropriates the property to his own use without first taking reasonable measures to restore the property to the owner.

Of the five types of aforementioned thefts, Lawrence Lewis, P.C. has seen more thefts by receiving than any other.  We know that the law demands more than mere proximity to stolen goods to warrant a conviction, because mere proximity to stolen goods is insufficient to establish possession or control.  We also know that while unexplained possession of recently stolen property cannot sustain a conviction, guilt may be inferred from possession in conjunction with other evidence of knowledge.  In other words, if your inexperienced trial attorney does not challenge the evidence that supports the prosecutor’s argument that you knew the items were stolen, you may find yourself in prison.  Guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinarily prudent person. State v. Martin, 300 Ga. App. 39 (2009) (buying goods at a price grossly less than the real value, or selling goods at a grossly discounted price excites suspicion).

THEFT BY SHOPLIFITNG

Theft by Shoplifting has an altogether different sentencing structure.  The offense is a misdemeanor, unless:

(1)   The items stolen are valued at $ 300 or more (if more than $ 300, a felony); 

(2)   The items are taken from three separate stores in one county during a period of 7 days or less, and each theft exceeds $100 (then a felony punishable by one to ten years); or

(3)   The recent conviction for theft by shoplifting is the fourth conviction (then there is a mandatory 1 year in jail, and additional jail time up to ten years)

“Value” means the actual retail price of the property at the time and place of the offense.  Price tag or testimony by a witness who had the opportunity to form a correct opinion will suffice to prove value.

Although there are a number of ways to commit a shoplifting, and there are new ways being discovered every day, Georgia law focuses on the intent of the shoplifter to determine if the offense is shoplifting.  The three intents that dictate whether the offense is a shoplifting are: (1) the intent to appropriate the property to one’s use without paying for the item; (2) the intent to deprive the owner/store of the possession of the item; and/or (3) the intent to deprive the owner of the value of the item.  If the intent of the accused can be established the shoplifting can be proven.  Failure to remove the item from the store does not negate the criminal intent. K-mart Corp. v. Coker, 261 Ga. 745 (1991).  

An experienced Georgia burglary/theft defense attorney is imperative in order to represent a person who has been charged with burglary/theft.  As these charges are often backed with physical evidence (video surveillance, fingerprints, etc.), a Georgia defense lawyer will need to work hard to find evidence or testimony in order to clear their client`s name. At Lawrence Lewis, P.C., our theft defense attorneys and lawyers dedicate the necessary time, energy and resources to our clients - giving them the opportunity to reach a successful outcome for their theft case.

A person who has been convicted of burglary or theft will face a variety of severe legal ramifications.  These legal penalties may include, but are not limited to:

• imprisonment

• jail time

• fines

• community service

• restitution

• court ordered counseling

A burglary/theft attorney can help.  After a person has been charged with or arrested for burglary in metro-Atlanta, it is imperative that the person consult with a skilled criminal defense attorney.  A defense lawyer can get involved from the onset of the legal process and provide insight and direction as the person’s case progresses.  Additionally, a criminal defense attorney can negotiate with judges and prosecutors to possibly have the person’s criminal charges reduced, or in some cases, dismissed entirely. 

At Lawrence Lewis, P.C., our burglary/theft defense attorneys and lawyers have represented many clients who were facing burglary charges and harsh legal penalties in Georgia.  With our help, our past clients have been able to fight their burglary and theft charges and obtain successful outcomes in court.  Our experienced criminal defense lawyers are aggressive, professional litigators who are ready to help you.

If you have been charged with burglary or theft, and you would like to speak with a qualified criminal defense attorney, call an experienced burglary/theft defense lawyer or attorney at Lawrence Lewis, P.C. today at (678) 407-9300.

 

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Lawrence Lewis is a Burglary Defense Attorney primarily practices in Gwinnett County, which includes the following cities: Auburn, Berkeley Lake, Braselton, Buford, Dacula, Duluth, Grayson, Lawrenceville, Lilburn, Loganville, Snellville, Sugar Hill and Suwanee.  However, he frequently handles cases in Fulton County (Atlanta, Alpharetta, College Park, Decatur, East Point, Fairburn, Hapeville, Palmetto, Roswell, Union City), DeKalb County (Avondale Estates, Chamblee, Clarkston, Decatur, Doraville, Lithonia, Stone Mountain), Hall County (Gainesville), and Cobb County (Acworth, Kennesaw, Marietta, Powder Springs, Smyrna).  He has also appeared in courthouses in Rockdale County (Conyers), Walton County (Loganville), Barrow County (Auburn, Winder), Forsyth County (Cumming), Cherokee County (Canton, Holly Springs, Woodstock), Douglas County (Douglasville), Butts County (Jackson), Henry County (McDonough, Stockbridge) and Clayton County.
Lawrence Lewis is an experienced Criminal Defense Lawyer practicing as Drug Attorney, License Suspension Lawyers, Sex Offense Attorney, Traffic Citation Lawyer, Misdemeanor Offenses Attorneys, Felony Offenses Lawyer, Bond Lawyer, Armed Robber Attorney, dui lawyer, Preliminary Hearing serving Lawrenceville, Gwinnett Country, Metro Atlanta, Alpharetta, Roswell, Marietta, Buford, Fulton County, Canton, Decatur, Norcross, Woodstock, Stone Mountain, Duluth and Cumming .

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