Byrd v

United Servs. Auto. Ass’n, 317 Ga. App. 280, 729 S.E.2d 522 (2012). Sufficiency of allegations. — Allegations under the Georgia Racketeer Influ- 182 enced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., against a mortgage loan servicer were sufficient to state a claim of theft by taking, deception, and conversion because despite being told that the mortgage loan was fraudulent, the servicer kept the borrowers’ money and continuously threatened the borrower’s with foreclosure. Kerfoot v. FNF Servicing, Inc., No. 1:13-cv-33, 2013 U.S. Dist. LEXIS 153849 (M.D. Ga. Oct. 25, 2013). Cited in King v. State, 127 Ga. App. 83, 192 S.E.2d 392 (1972); Baker v. State, 127 Ga. App. 99, 192 S.E.2d 558 (1972); Barrett v. State, 129 Ga. App. 72, 199 S.E.2d 116 (1973); Wade v. State, 129 Ga. App. 571, 200 S.E.2d 370 (1973); Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973); Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974); Maddox v. State, 131 Ga. App. 86, 205 S.E.2d 31 (1974); A.C.G. v. State, 131 Ga. App. 156, 205 S.E.2d 435 (1974); Welborn v. State, 132 Ga. App. 207, 207 S.E.2d 688 (1974); McCrary v. Ricketts, 232 Ga. 890, 209 S.E.2d 148 (1974); Godwin v. State, 133 Ga. App. 397, 211 S.E.2d 7 (1974); Rhodes v. State, 233 Ga. 899, 213 S.E.2d 870 (1975); Breland v. State, 135 Ga. App. 478, 218 S.E.2d 153 (1975); Rhodes v. State, 135 Ga. App. 484, 218 S.E.2d 159 (1975); Justice v. State, 135 Ga. App. 902, 219 S.E.2d 592 (1975); Roberts v. State, 137 Ga. App. 208, 223 S.E.2d 208 (1976); Jones v. State, 137 Ga. App. 612, 224 S.E.2d 473 (1976); Gasaway v. State, 137 Ga. App. 653, 224 S.E.2d 772 (1976); Chandler v. State, 138 Ga. App. 128, 225 S.E.2d 726 (1976); Billings v. State, 139 Ga. App. 95, 227 S.E.2d 892 (1976); Jones v. State, 139 Ga. App. 366, 228 S.E.2d 387 (1976); Causey v. State, 139 Ga. App. 499, 229 S.E.2d 1 (1976); First Nat’l Bank & Trust Co. v. State, 141 Ga. App. 471, 233 S.E.2d 861 (1977); Bennett v. State, 141 Ga. App. 795, 234 S.E.2d 327 (1977); Malone v. State, 142 Ga. App. 47, 234 S.E.2d 844 (1977); Bramblett v. State, 239 Ga. 336, 236 S.E.2d 580 (1977); Andrews v. State, 143 Ga. App. 791, 240 S.E.2d 142 (1977); Walker v. State, 146 Ga. App. 237, 246 S.E.2d 206 (1978); Herrington v. State, 149 Ga. App. 130, 253 S.E.2d 810 (1979); Dyer v. State, 150 Ga. App. 760, 258 S.E.2d 620 (1979); Miller v. 16-8-2 Roses’ Stores, Inc., 151 Ga. App. 158, 259 S.E.2d 162 (1979); Perkins v. State, 151 Ga. App. 199, 259 S.E.2d 193 (1979); Maddox v. State, 152 Ga. App. 384, 262 S.E.2d 636 (1979); Grizzle v. State, 155 Ga. App. 91, 270 S.E.2d 311 (1980); Carnes v. Crawford, 246 Ga. 677, 272 S.E.2d 690 (1980); Bembry v. State, 155 Ga. App. 847, 273 S.E.2d 208 (1980); Change v. State, 156 Ga. App. 316, 274 S.E.2d 711 (1980); Tisdol v. State, 158 Ga. App. 852, 282 S.E.2d 411 (1981); Slack v. State, 159 Ga. App. 185, 283 S.E.2d 64 (1981); Maxey v. State, 159 Ga. App. 503, 284 S.E.2d 23 (1981); Jones v. State, 159 Ga. App. 845, 285 S.E.2d 584 (1981); Kraus v. State, 161 Ga. App. 739, 289 S.E.2d 555 (1982); Brown v. State, 162 Ga. App. 75, 290 S.E.2d 174 (1982); Moyer v. State, 164 Ga. App. 629, 298 S.E.2d 308 (1982); Moore v. State, 167 Ga. App. 207, 300 S.E.2d 543 (1983); Lovett v. State, 165 Ga. App. 379, 301 S.E.2d 303 (1983); Bailey v. State, 169 Ga. App. 802, 315 S.E.2d 297 (1984); Weaver v. State, 169 Ga. App. 890, 315 S.E.2d 467 (1984); Pelligrini v. State, 174 Ga. App. 84, 329 S.E.2d 186 (1985); Hambrick v. State, 174 Ga. App. 444, 330 S.E.2d 383 (1985); Miller v. State, 174 Ga. App. 703, 331 S.E.2d 616 (1985); Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987); Henderson v. State, 257 Ga. 618, 362 S.E.2d 346 (1987); Abelman v. State, 185 Ga. App. 278, 363 S.E.2d 764 (1987); Williams v. State, 187 Ga. App. 859, 371 S.E.2d 673 (1988); King v. State, 195 Ga. App. 353, 393 S.E.2d 709 (1990); Tenney v. State, 194 Ga. App. 820, 392 S.E.2d 294 (1990); Radford v. State, 202 Ga. App. 532, 415 S.E.2d 34 (1992); Groom v. State, 212 Ga. App. 133, 441 S.E.2d 259 (1994); State v. Schuman, 212 Ga. App. 231, 441 S.E.2d 466 (1994); Randall v. State, 234 Ga. App. 704, 507 S.E.2d 511 (1998); Pruitt v. State, 245 Ga. App. 801, 538 S.E.2d 874 (2000); Urness v. State, 251 Ga. App. 401, 554 S.E.2d 546 (2001); Merritt v. State, 254 Ga. App. 788, 564 S.E.2d 3 (2002); Atkinson v. State, 263 Ga. App. 274, 587 S.E.2d 332 (2003); Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007); Tiller v. State, 286 Ga. App. 230, 648 S.E.2d 738 (2007); Great Am. Ins. Co. v. Davis (In re Davis), No. A04-74475-REB, 2007 Bankr. LEXIS 3684 (Bankr. N.D. Ga. Sept. 20, 183 General Consideration (Cont’d) 2007); Am. Southern Ins. Group, Inc. v. Goldstein, 291 Ga. App. 1, 660 S.E.2d 810 (2008); Barron v. State, 291 Ga. App. 494, 662 S.E.2d 285 (2008); Johnson v. State, 293 Ga. App. 32, 666 S.E.2d 452 (2008); State v. Fisher, 293 Ga. App. 228, 666 S.E.2d 594 (2008); State v. Campbell, 295 Ga. App. 856, 673 S.E.2d 336 (2009); Brashier v. State, 299 Ga. App. 107, 681 S.E.2d 750 (2009); Cox v. Mayan Lagoon Estates Ltd., 319 Ga. App. 101, 734 S.E.2d 883 (2012); Davis v. State, 319 Ga. App. 501, 736 S.E.2d 160 (2012); State v. Bachan, 321 Ga. App. 712, 742 S.E.2d 526 (2013); In the Interest of S. M., 322 Ga. App. 678, 745 S.E.2d 863 (2013); Davis v. State, 322 Ga. App. 826, 747 S.E.2d 19 (2013); Pruitt v. State, 323 Ga. App. 689, 747 S.E.2d 694 (2013); In the Interest of D. C., 324 Ga. App. 95, 748 S.E.2d 514 (2013); Lucas v. State, 328 Ga. App. 741, 760 S.E.2d 257 (2014); McGil v. State, 339 Ga. App. 130, 793 S.E.2d 442 (2016). Intent Former Code 1933, § 26-1802 (see now O.C.G.A. § 16-8-2) required only proof of intent to deprive permanently, as opposed to an intent to deprive temporarily, at the time of the wrongful taking; and the accused’s original intent was not rendered void when the accused later had a change of heart. Martin v. State, 143 Ga. App. 875, 240 S.E.2d 231 (1977). Once criminal intent at the time of taking was proved, it became irrelevant whether the deprivation, as defined in former Code 1933, § 26-1801(a) (see now O.C.G.A. § 16-8-1(1)), was permanent or temporary. Martin v. State, 143 Ga. App. 875, 240 S.E.2d 231 (1977). Intent to only temporarily deprive owner of goods constitutes theft. — Regardless of whether a defendant intended to take property and withhold it permanently, defendant’s intent to take it for defendant’s own temporary use without the owner’s authorization evinces an intent to commit a theft. Smith v. State, 172 Ga. App. 356, 323 S.E.2d 257 (1984). When larceny is charged and taking is shown, jury must necessarily be 16-8-2 exclusive judges of intention which actuated the accused in the asportation. Though the circumstances evidencing the amimun furandi are weak, a reviewing court cannot hold them to be legally insufficient to sustain a finding that the accused’s intent was to steal. Hawkins v. State, 130 Ga. App. 277, 202 S.E.2d 837 (1973). Intent is material element. — Guilt of the accused depends upon the intent with which the act was committed, and intent is a material ingredient of the crime. Scott v. State, 46 Ga. App. 213, 167 S.E. 210 (1932) (decided under former Penal Code 1910, §§ 172, 174). Evidence of fraudulent intent. — Jury was authorized to infer that the defendant acted with fraudulent intent and to find the defendant guilty of theft by taking because shortly after the defendant received checks for the purpose of starting construction of the victims’ modular homes, the defendant abandoned the respective projects without accomplishing any task towards completion of the modular homes; the defendant failed to pay the requisite deposits to obtain the engineering plans for the modular homes. Bearden v. State, 316 Ga. App. 721, 728 S.E.2d 874 (2012). Intent not shown when defendant without knowledge and mere passenger. — Evidence was insufficient to support a juvenile’s theft by taking motor vehicle conviction under O.C.G.A. § 16-8-2 as the juvenile was only a passenger in a truck belonging to the father of the juvenile’s friend and did not know that the friend did not have permission to drive the truck. In re J. B. M., 294 Ga. App. 545, 669 S.E.2d 523 (2008). Intent was a jury question. — Trial court did not err in denying the defendant’s motion for an acquittal as the question of whether or not the defendant had the requisite intent to steal was for the jury to decide. Dudley v. State, 287 Ga. App. 794, 652 S.E.2d 840 (2007), cert. denied, No. S08C0319, 2008 Ga. LEXIS 168 (Ga. 2008). Evidence regarding intent created a question for the jury. — Defendant was charged with theft by taking after the defendant sped off with money an infor- 184 mant had given the defendant for cocaine, and the trial court properly denied the defendant’s motion for a directed verdict on the ground that there could be no intent to steal contraband. The defendant could not question the informant’s title to the money; in light of the testimony, including the defendant’s admission that the defendant owed a second person money for the second person’s role in the robbery, the defendant’s intent to steal the money was a question for the jury. Dudley v. State, 287 Ga. App. 794, 652 S.E.2d 840 (2007), cert. denied, No. S08C0319, 2008 Ga. LEXIS 168 (Ga. 2008). Intent to deprive temporarily is not larceny. — When the intention is only to deprive temporarily the owner of the use of the property it may be some other crime, but not larceny. Austin v. State, 65 Ga. App. 733, 16 S.E.2d 497 (1941) (decided under former Code 1933, § 26-2603). Intent not shown. — Taxpayers were not entitled to a theft loss under 26 U.S.C. § 165(e) with respect to a decline in value of publicly traded stock, as a theft by taking did not occur under O.C.G.A. § 16-8-2 because a corporation did not unlawfully take or appropriate any property from the taxpayer, and there was no evidence of any intention by the corporation or its executives to deprive the taxpery of the property at issue. Although corporate stock, which was in the taxpayer’s control after he exercised his stock options, subsequently declined in value, there was no evidence that the corporate executives had any specific intent with regard to the taxpayer to take or appropriate his stock by devaluation or by any other means; rather, the goal of the corporation, including its later-convicted executives, was to increase the value of the stock, including any stock owned and controlled by the taxpayer. Schroerlucke v. United States, 100 Fed. Cl. 584 (Fed. Cl. 2011). Larceny Taking against will of owner is essence of crime of larceny. Kent v. State, 66 Ga. App. 147, 17 S.E.2d 301 (1941) (decided under former Code 1933, § 26-2603). 16-8-2 To constitute larceny taking must be done without using intimidation, or open force and violence. Shehany v. Lowry, 170 Ga. 70, 152 S.E. 114 (1930) (decided under former Penal Code 1910, §§ 172 and 174). If intimidation, force, and violence be used in committing the theft, the offense is robbery. Shehany v. Lowry, 170 Ga. 70, 152 S.E. 114 (1930) (decided under former Penal Code 1910, §§ 172 and 174). Taking need not be directly from one’s person. — To constitute robbery or larceny, it is unnecessary that the taking of the property should be directly from one’s person, but it is sufficient if it be taken while in the person’s possession and immediate presence. Banks v. State, 74 Ga. App. 449, 40 S.E.2d 103 (1946) (decided under former Code 1933, § 26-2603). Asportation and intent to steal. — Slightest change of location from where the goods are left by the owner was sufficient proof of asportation and, when coupled with the intent to steal, the crime of larceny was completed. Brown v. State, 135 Ga. App. 323, 217 S.E.2d 500 (1975). Larceny is completed when there is asportation, however slight, although the goods are not removed from the land of the owner. Hawkins v. State, 130 Ga. App. 277, 202 S.E.2d 837 (1973). Any unlawful asportation, however slight (15 feet in this case), is sufficient to show the ‘‘taking’’ element. It is not necessary that property be removed from the premises of the owner. Craighead v. State, 126 Ga. App. 300, 190 S.E.2d 606 (1972). Prima-facie case. — By proving the corpus delicti, the venue, and the recent possession of the stolen property, and its sale by the defendant, the state makes a prima-facie case. Whether the defendant’s explanation of possession of the property was consistent with defendant’s innocence and satisfactory to the jury was a matter exclusively for them. Howard v. State, 58 Ga. App. 391, 198 S.E. 548 (1938) (decided under former Code 1933, § 26-2603). Elements of larceny may be established by circumstantial evidence. Yawn v. State, 94 Ga. App. 400, 94 S.E.2d 769 (1956) (decided under former Code 1933, § 26-2603). 185 Larceny (Cont’d) Taking goods in cash sale without paying cash is larceny. — If personal property is voluntarily placed in the hands of a person upon the condition that there should be returned to the owner at once its value in money (a cash sale), neither title nor right of possession passes and becomes complete until this condition is complied with; thus, if a sale be for cash, the taking of the goods without paying cash is larceny, otherwise if there be credit. Thomas v. State, 62 Ga. App. 725, 9 S.E.2d 854 (1940) (decided under former Code 1933, § 26-2603). Mere borrowing without fraudulent intent is not larceny. — Taking goods, not with the intention of depriving the owner of the owner’s property in the goods, but with the object of temporarily using the goods and then returning the goods, is not larceny since the mere borrowing, without fraudulent intent, is not larceny. Austin v. State, 65 Ga. App. 733, 16 S.E.2d 497 (1941) (decided under former Code 1933, § 26-2603). State to show taking without owner’s consent. — While it is true that where larceny is charged and a taking is shown, the jury must necessarily be the exclusive judges of the intention which actuated the accused in the asportation, it is still incumbent on the state to show that the taking was without the consent of the owner. Felder v. State, 60 Ga. App. 643, 4 S.E.2d 716 (1939) (decided under former Code 1933, § 26-2603). Descriptions of personal chattels. — When, as in larceny, personal chattels are the subject of an offense, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods stated. Kyler v. State, 94 Ga. App. 321, 94 S.E.2d 429 (1956) (decided under former Code 1933, § 26-2603). Object of the description of stolen chattels is to individualize the transaction, and enable the court to see that the chattels are, in law, the subjects of larceny. The description should be simply such as in connection with the other allegations, will affirmatively show the defendant to be guilty, will reasonably inform the de- 16-8-2 fendant of the instance meant, and put the defendant in a position to make the needful preparations to meet the charge. Kyler v. State, 94 Ga. App. 321, 94 S.E.2d 429 (1956) (decided under former Code 1933, § 26-2603). There must be such certainty in description of stolen chattels as will enable the jury to say whether the chattel proved to be stolen is the same as that upon which the indictment is founded. Kyler v. State, 94 Ga. App. 321, 94 S.E.2d 429 (1956) (decided under former Code 1933, § 26-2603). Articles must be identified as those alleged to have been stolen. — While it is necessary for conviction in a larceny case, where the state relies upon recent possession of the stolen goods, that the articles found in the possession of the accused be identified as those alleged to have been stolen, such identity can be established by the testimony of the owner of the goods that the articles found in the possession of the accused, where they have no ‘‘earmarks’’ to identify them, are of the same brand and character as the stolen goods, and that, from their brand, character, and appearance, the owner believes them to be the property stolen from the owner. This is especially true where many different articles of various kinds, brands and sizes were stolen, and articles similar in make, brand, character, and appearance to the stolen ones were found in the recent possession of the accused. Yawn v. State, 94 Ga. App. 400, 94 S.E.2d 769 (1956) (decided under former Code 1933, § 26-2603). Value of items not an element of offense required to be stated in indictment. — Although an indictment for theft by taking under O.C.G.A. § 16-8-2 did not allege the value of stolen car parts defendant was caught removing from a business, the value was not an element of the offense. Because a jury found the parts were worth more than $100, the crime was punishable as a felony under O.C.G.A. § 16-8-12(a)(5)(A). Roman v. State, 300 Ga. App. 526, 685 S.E.2d 775 (2009), cert. denied, No. S10C0386, 2010 Ga. LEXIS 306 (Ga. 2010). Decedent’s property is property of administrator. — Even when there is no 186 will, the property of a deceased person is not derelict; but is regarded in law as the property of the administrator subsequently appointed, by relation from the time of the death, so that taking the property by anyone, animo furandi, is larceny. Lawson v. State, 68 Ga. App. 830, 24 S.E.2d 326 (1943) (decided under former Code 1933, § 26-2603), overruled on other grounds, McKee v. State, 73 Ga. App. 815, 38 S.E.2d 184 (1946). Embezzlement Contents of indictment. — Indictment for embezzlement should state amount of money and its value, and should describe any other property. The rule for determining the sufficiency of the description of the property (other than money) embezzled is that the description in the indictment, in connection with the other allegations thereof, shall make it affirmatively appear to the defendant what particular instance is meant, and thus enable defendant to make the necessary preparation to meet the charge at the trial, and to plead the judgment in bar to any subsequent prosecution for the same offense. Bivins v. State, 47 Ga. App. 391, 170 S.E. 513 (1933) (decided under former Ga. L. 1919, p. 135, § 20). Goods on consignment. — When the defendants were consignees of gasoline belonging to the victim and as such were in lawful possession of property belonging to the victim but sold large quantities of the gasoline without accounting to the victim either for its disposition or for the victim’s share of the proceeds from its sale, the evidence was sufficient to support a conviction of theft. Ketcham v. State, 181 Ga. App. 868, 354 S.E.2d 171 (1987). Continuous conversions constitute single embezzlement. — When there is a continuous series of conversions of property of the owner entrusted to the defendant, the offense may be charged in a single count of the indictment since such series of transactions constitute but a single embezzlement. Simmons v. State, 79 Ga. App. 390, 53 S.E.2d 772 (1949) (decided under former Code 1933, § 26-2603). 16-8-2 Element of conversion of property before owner obtains possession is always essential element in embezzlement. Simmons v. State, 79 Ga. App. 390, 53 S.E.2d 772 (1949) (decided under former Code 1933, § 26-2603). Embezzlement differs from larceny in that in embezzlement accused comes into possession lawfully, whereas in larceny the property comes into the hands of the thief secretly and unlawfully. In the former there is an entrustment and in the latter there is not. Simmons v. State, 79 Ga. App. 390, 53 S.E.2d 772 (1949) (decided under former Code 1933, § 26-2603). Sufficient evidence supporting theft by taking by embezzlement by a fiduciary who was a city employee from the city included direct and circumstantial evidence of the employee’s spouse’s bankruptcy, deposits to their personal account in excess of their earned income, losses stopping after the employee resigned, and excluding other employees’ culpability; the evidence was sufficient in spite of the employee’s defenses which included that the city: (1) did not lose the money but had poor accounting procedures; (2) had four other persons that had access to the safe and that could have taken the money; and (3) blamed the employee because the city’s insurance policy did not cover non-theft-related losses, and that they had outside receipts or gifts to explain deposits greater than city salary income deposited to their account. Stack-Thorpe v. State, 270 Ga. App. 796, 608 S.E.2d 289 (2004). Checks have the same value as the federal reserve notes the checks represent. — Trial court was authorized to convict defendant of the offense of felony theft by taking as the employer’s checks which were admittedly stolen and which when negotiated by defendant had the same value as the federal reserve notes which they represented; defendant obviously knew the checks represented cash because defendant deposited them and then withdrew the cash. Harper v. State, 259 Ga. App. 843, 578 S.E.2d 544 (2003). Defendant was not entitled to directed verdict on charges of embezzling money representing traffic tickets and 187 Embezzlement (Cont’d) other fines from the city just because the defendant did not have exclusive access to the money; the defendant also had to show that the state had failed to present any evidence to exclude the possibility that someone else had taken the money. Stack-Thorpe v. State, 270 Ga. App. 796, 608 S.E.2d 289 (2004). Included Crimes Theft by taking as lesser included offense of robbery by sudden snatching. — In a prosecution for robbery by sudden snatching, since there was evidence to support the defendant’s written request to charge on the lesser included offense of theft by taking, the trial court’s failure to give the requested charge was reversible error. King v. State, 214 Ga. App. 311, 447 S.E.2d 645 (1994). Theft by taking was not lesser included offense of robbery by sudden snatching where the victim saw the defendant take her purse out of her grocery cart when it was no more than two feet away from her. Bryant v. State, 213 Ga. App. 301, 444 S.E.2d 391 (1994). Armed robbery. — In a trial for armed robbery under O.C.G.A. § 16-8-41, a charge on the lesser included offense of theft by taking under O.C.G.A. § 16-8-2 was not warranted under circumstances in which the defendant used force to take the victim’s purse and then the victim’s money; the fact that the purse was not in the victim’s hands during the second taking did not preclude an armed robbery conviction. Thomas v. State, 290 Ga. App. 10, 658 S.E.2d 796 (2008). Although armed robbery requires proof of the use of an offensive weapon and proof that the property was taken from the presence of a person, whereas theft by taking does not, theft by taking does not require proof of any facts separate from those required for armed robbery. Wells v. State, 294 Ga. App. 277, 668 S.E.2d 881 (2008). Theft by receiving is not lesser included offense of theft by taking. These two crimes are so mutually exclusive that the thief and the receiver cannot 16-8-2 even be accomplices. Sosbee v. State, 155 Ga. App. 196, 270 S.E.2d 367 (1980). Trial court did not err in failing to give a requested jury instruction on a lesser offense of theft by receiving stolen property as theft by receiving stolen property is not a lesser included offense of armed robbery, theft by taking, or hijacking a motor vehicle. Mullins v. State, 267 Ga. App. 393, 599 S.E.2d 340 (2004). Theft by receiving stolen property, O.C.G.A. § 16-8-7(a), was not a lesser included offense of theft by taking under O.C.G.A. § 16-8-2 because applying the required evidence test each crime required proof that the other did not; the former required a showing that the defendant knew or should have known that the gun the victim wanted to sell was stolen while the latter required that the defendant took the gun from the victim with intent to deprive the victim of the gun. Peoples v. State, 295 Ga. App. 731, 673 S.E.2d 82 (2009). Theft by taking as included offense in theft by receiving. — When the proof of a recent unexplained possession of stolen property was sufficient in itself to prove theft by taking but was only one element necessary to prove theft by receiving, theft by taking must be considered an included offense in theft by receiving. Callahan v. State, 148 Ga. App. 555, 251 S.E.2d 790 (1978). Theft by deception. — Trial court properly denied the defendant’s motion for a directed verdict on the issue of whether the state proved an unlawful taking as the phrase in the theft by taking statute ‘‘regardless of the manner in which the property is taken or appropriated’’ was broad enough to encompass the theft by deception that the state proved defendant committed in regard to the agreement with the couple by which defendant was supposed to take their cash payments and build the couple a home, but which the defendant converted to the defendant’s own use. McMahon v. State, 258 Ga. App. 512, 574 S.E.2d 548 (2002). Defendants’ convictions for theft by taking were affirmed because: (1) the trial court did not err in denying their general and special demurrers to the indictment as the indictment was not defective, or in 188 admitting similar transaction evidence; and (2) the evidence was sufficient to show that the defendants committed theft by deception in deceiving lenders through flipping houses and obtaining false loan applications from investors in the houses. Bradford v. State, 266 Ga. App. 198, 596 S.E.2d 715 (2004). Merger of theft by taking, conversion, and theft by deception. — After the defendant was convicted on 52 counts related to the defendant’s theft of more than $600,000 as the operator of a Ponzi scheme, although the trial court did not err in failing to merge the defendant’s convictions for theft by conversion and theft by deception into the defendant’s convictions for theft by taking, because theft by taking proscribed certain criminal conduct generally, while theft by conversion and theft by deception were specific crimes, the defendant’s convictions for theft by taking merged into the defendant’s convictions for theft by conversion and theft by deception; thus, the defendant’s sentences for theft by taking were vacated, and the case was remanded to the trial court for resentencing. Mathis v. State, 343 Ga. App. 206, 807 S.E.2d 4 (2017). Money given to defendant by police for drug buy. — Elements of theft by taking were met when the defendant fled with money that state law enforcement agents gave the defendant to effect a drug transaction. Stevens v. State, 213 Ga. App. 293, 444 S.E.2d 840 (1994). Theft by taking is lesser included offense to burglary. Lockett v. State, 153 Ga. App. 569, 266 S.E.2d 236 (1980); Breland v. Smith, 247 Ga. 690, 279 S.E.2d 204 (1981). Burglary and theft by taking did not merge. — Defendant’s burglary and theft by taking charges involving the same house were not based on the same facts; the burglary was complete when the defendant entered the dwelling house with the intent to commit theft, and the theft by taking occurred when the defendant actually took the property described in the indictment. Martin v. State, 285 Ga. App. 375, 646 S.E.2d 339 (2007). Attempt to commit theft. — Theft by taking may in some circumstances be a 16-8-2 lesser included offense of burglary, but it does not follow that where a burglary was committed but nothing was actually taken, the attempt to commit theft by taking will be a lesser included offense which the defendant is entitled to have charged. Cannon v. State, 167 Ga. App. 225, 305 S.E.2d 910 (1983). Theft by taking was not a lesser included offense of burglary where the defendant did not indicate that defendant believed the items in defendant’s possession belonged to another nor did defendant admit to having the requisite intent to steal. McNeese v. State, 186 Ga. App. 410, 367 S.E.2d 235 (1988). Theft as lesser included offense of robbery when wallet taken from extremely intoxicated victim. — In a probation revocation case after the defendant removed a wallet from the pocket of an extremely intoxicated victim, the evidence did not support a showing that the defendant had committed the offense of robbery under O.C.G.A. § 16-8-40(a), only the lesser included offense of theft under O.C.G.A. § 16-8-2; even if the evidence showed robbery by sudden snatching, the victim was not aware of the taking before the crime was completed and there was no evidence of constructive force supplied by intimidation, threat, or other means. Franklin v. State, 286 Ga. App. 288, 648 S.E.2d 746 (2007). When a defendant is indicted for robbery by force, it is not error to charge robbery by sudden snatching if the trial judge confines the elements of the crime to those charged in the indictment. Searcy v. State, 168 Ga. App. 233, 308 S.E.2d 621 (1983). Theft by taking charge did not merge with an armed robbery charge because under O.C.G.A. § 16-8-2 theft by taking requires the intent to deprive the owner of property, while armed robbery is a completely separate offense, which under O.C.G.A. § 16-8-41 is complete once the property is taken. Miller v. State, 174 Ga. App. 42, 329 S.E.2d 252 (1985). When the armed robbery involved the taking of currency at gunpoint from the immediate possession of a convenience store cashier who was attempting to make a nightly bank deposit, while the theft 189 Included Crimes (Cont’d) conviction involved the subsequent taking of the cashier’s automobile, the evidence establishing the commission of the one crime is not the same as the evidence which established commission of the other crime, and defendant’s contention that the theft conviction should have merged with the armed robbery conviction is without merit. Miller v. State, 183 Ga. App. 563, 359 S.E.2d 359 (1987). Theft by taking convictions merged with armed robbery convictions. — When the same evidence that was used to prove the armed robbery charges against the defendant was also used to prove the theft by taking charges and the property in question was taken from the victims’ possession in the same incident in a store and constituted a single crime, the theft by taking offenses were lesser included offenses of the armed robbery offenses as a matter of fact pursuant to O.C.G.A. § 16-1-6(1) and should have merged into those convictions for sentencing purposes. Phanamixay v. State, 260 Ga. App. 177, 581 S.E.2d 286 (2003). No merger with Securities Act violation. — Defendant’s convictions for theft by taking under O.C.G.A. § 16-8-2 and for violating the Georgia Securities Act of 1973, O.C.G.A. § 10-5-12 et seq., did not merge for sentencing purposes because the language of the statutes indicated that the crimes were separate offenses as a matter of law and because while theft required that the victim sustain a loss, a securities violation did not. Branan v. State, 285 Ga. App. 717, 647 S.E.2d 606 (2007). Motor vehicle theft is not separate crime from general theft statute. Searcy v. State, 162 Ga. App. 695, 291 S.E.2d 557 (1982). Theft by taking did not merge with entering an automobile. — Because: (1) the defendant was properly sentenced for felony theft by taking as the defendant admitted to the accusation which valued the items taken at greater than $100; and (2) the offenses of theft by taking and entering an automobile with intent to commit theft did not merge for purposes of sentencing as each offense required the 16-8-2 proof of different facts, the sentence imposed by the trial court was upheld. Neslein v. State, 288 Ga. App. 234, 653 S.E.2d 825 (2007). O.C.G.A. § 15-11-63(a)(2)(E) does not require proof of a second or subsequent ‘‘adjudication’’ of delinquency to authorize the imposition of restrictive custody; rather, O.C.G.A. § 15-11-63(a)(2)(E) authorizes restrictive custody when a child is found to have committed a second or subsequent ‘‘violation’’ of O.C.G.A. §§ 16-8-2 though 16-8-9, if the property which was the subject of the theft was a motor vehicle. In the Interest of L.J., 279 Ga. App. 237, 630 S.E.2d 771 (2006). In a prosecution for felony theft by taking of a van, the trial court was entitled to conclude that the victim was an innocent purchaser for value, believing the seller to be the owner, the defendant’s claim to the contrary notwithstanding; moreover, pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), the testimony of a single witness was sufficient to establish this fact. Coursey v. State, 281 Ga. App. 494, 636 S.E.2d 669 (2006). Theft by taking motor vehicle and theft by retaining motor vehicle were mutually exclusive. — When the defendant was convicted of theft by taking a motor vehicle and theft by retaining a motor vehicle, the offenses were mutually exclusive so the convictions were reversed and remanded for a new trial, and the trial court’s merger of the offenses for sentencing was an insufficient remedy. Campbell v. State, 275 Ga. App. 8, 619 S.E.2d 720 (2005). Scope of statute. — Language ‘‘regardless of the manner in which said property is taken or appropriated,’’ renders O.C.G.A. § 16-8-2 sufficiently broad to encompass thefts or larcenies perpetrated by deception, as prohibited under O.C.G.A. § 16-8-3, and theft by conversion, as prohibited under O.C.G.A. § 16-8-4, the punishment for all of which is identical, as provided in O.C.G.A. § 16-8-12. Ray v.