Ledford v

Peeples, 657 F.3d 1222 (11th Cir. 2011). Sale of non-existent insurance. — While the illegal sale of insurance is not in and of itself a basis for a racketeer influenced and corrupt organization (RICO) action absent further evidence of fraud rising to the level of theft by deception, the repeated sale to unsuspecting consumers of non-existent insurance was the very essence of such fraud, and was exactly the type of criminally fraudulent activity masquerading as ‘‘business’’ that RICO was designed to address. Speir v. Krieger, 235 Ga. App. 392, 509 S.E.2d 684 (1998). Jury Charges Charging provisions for which there is no evidence is improper. — Charging provisions for which there is no evidence can only serve to confuse the jury and allow it to believe that defendant could be found guilty for failing to honor a promise. A proper charge should explain that creating a false impression does not necessarily require a false statement but, on the other hand, the character of the person to whom the impression is directed is critical. Vickers v. State, 124 Ga. App. 752, 186 S.E.2d 157 (1971). Claim of right defense instruction not available. — Trial court properly did not instruct the jury, sua sponte under O.C.G.A. § 5-5-24(c), on a claim of right defense under O.C.G.A. § 16-8-10 to theft by deception charges under O.C.G.A. § 16-8-3 as a sole defense as the defendant did not object to the instructions given, and a claim of right defense was not warranted as the sole defense as the de- fendant testified about the reasons the defendant was prevented from completing the jobs, and that the defendant had composed a list with the defendant’s pastor of how much work was done on each job, and how much the defendant owed the people. Stratacos v. State, 312 Ga. App. 783, 720 S.E.2d 256 (2011). Punishment Whether offense is misdemeanor or felony is material only as to sentencing. — Whether the offense of theft by deception constitutes a misdemeanor or a felony is not material to the defense, and is only material after conviction for the purpose of sentencing under the provisions of former Code 1933, § 26-1812 (see now O.C.G.A. § 16-8-12). Guy v. State, 138 Ga. App. 11, 225 S.E.2d 492 (1976). Conviction for theft by taking. — One may be indicted and convicted under former Code 1933, § 26-1802 (see now O.C.G.A. § 16-8-2) for theft by taking if the evidence supports a finding of guilt under former Code 1933, § 26-1803 (see now O.C.G.A. § 16-8-3) for theft by deception. Elliott v. State, 149 Ga. App. 579, 254 S.E.2d 900 (1979). Language ‘‘regardless of the manner in which said property is taken or appropriated’’ in O.C.G.A. § 16-8-2 renders that section sufficiently broad to encompass thefts or larcenies perpetrated by deception as prohibited by O.C.G.A. § 16-8-3. Ray v. State, 165 Ga. App. 89, 299 S.E.2d 584 (1983). Defendant’s rights against double jeopardy are not infringed upon by prosecutions and subsequent convictions for both theft by deception and theft by taking. Stone v. State, 166 Ga. App. 245, 304 S.E.2d 94 (1983). When the evidence at trial was sufficient to establish the crime of theft by taking, and the evidence also may have shown theft by deception, the phrase ‘‘regardless of the manner in which the property is taken or appropriated’’ rendered the theft by taking statute sufficiently broad to encompass thefts perpetrated by deception. Thus, the evidence was sufficient to authorize a conviction on that charge. Lundy v. State, 195 Ga. App. 682, 394 S.E.2d 559 (1990). 230 Sentence not excessive. — Defendant’s sentence for theft by deception for taking $2,611.29 from an elderly victim in a roofing scheme was within the statutory limits, and thus the defendant’s sentence 16-8-4 of 10 years, with five years probated, was not so disproportionate as to shock the conscience. Jones v. State, 325 Ga. App. 845, 755 S.E.2d 238 (2014).