                                 FIRST DIVISION
                                  BARNES, P. J.,
                             MCMILLIAN and REESE, JJ.

                      NOTICE: Motions for reconsideration must be
                      physically received in our clerk’s office within ten
                      days of the date of decision to be deemed timely filed.
                                  http://www.gaappeals.us/rules


                                                                       March 12, 2019




In the Court of Appeals of Georgia
 A18A1643. JACKSON v. THE STATE.

      MCMILLIAN, Judge.

      In June 2013, Gregory Jackson and his co-defendant Anthony Hall were

indicted by the Dougherty County grand jury for seven counts of theft by conversion

(breach of a fiduciary duty). Following a four-day jury trial, Jackson was sentenced

to a total of twenty five years, with five years to be served in confinement, and

ordered to pay $82,055.44 in restitution.1 Jackson now appeals his convictions on

Counts 1, 2, 4, 6, and 7, asserting that the verdict is a nullity as to those counts.2 For




      1
          Just prior to trial, Hall entered a guilty plea on three counts.
      2
       Jackson did not appeal his conviction on Count 3, and the State nolle prossed
Count 5 during the course of the trial.
the reasons set forth below, we agree and reverse his convictions on Counts 1, 2, 4,

6, and 7.

      Viewed in the light most favorable to the verdict,3 the evidence shows that

Second Harvest of South Georgia (“Second Harvest”) is a nonprofit hunger relief

organization that distributes products and food it receives from corporate donations

to local individuals. In April 2010, Second Harvest absorbed another local nonprofit,

Food Bank of Southwest Georgia, where Jackson and Hall were employed at the time.

Jackson stayed on with Second Harvest as the warehouse manager, and Hall remained

as the branch director. Jackson’s role included many different responsibilities,

including shipping, receiving, supervising the drivers, facility safety, inventory of all

products, product placement in the building, and scheduling. Second Harvest used

different vehicles for its deliveries, including utility trailers, straight trucks capable

of carrying ten to twelve pallets, and a tractor-trailer that could carry twenty-two to

twenty-four pallets.

      As a nonprofit, Second Harvest is required to keep records and account for

every donated item. Jackson was responsible for making sure that detailed

information for every donation was entered in the database. In July 2011, Will

      3
          Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

                                            2
Robinson, the chief operations officer for Second Harvest, received an anonymous

call that prompted him to travel to a barbershop in Sylvester, Georgia to inspect what

appeared to be several pallets of their donated products for sale, including paper

products from Proctor & Gamble (“P&G”) and chairs that Second Harvest kept in

stock. Robinson then contacted Jackson and Hall to drive one of the Second Harvest

trucks to that location to retrieve the items and bring them back to the warehouse.

      Robinson testified that he also discovered at various times in 2011 that the GPS

tracker on the tractor-trailer appeared to have been disabled or turned off so that he

was not able to track the vehicle’s location. Whenever that occurred, he would

contact Jackson to see what was happening, and Jackson would tell him that he would

take a look at the unit and get it working again. This continued until Robinson

decided to move the tractor-trailer to the Second Harvest location in Valdosta where

he could keep a direct eye on it.

      In August 2011, Robinson received a call from Larry Van who asked him when

he was going to move his product out of his warehouse, known as the “MacGregor

building.” Robinson was confused because he was not aware of any storage of

Second Harvest property offsite. Van agreed to let him come over to the MacGregor

building to see what he was talking about. There, Robinson found 17-18 empty

                                          3
pallets that had obviously had P&G products on them at some point and several other

pallets with P&G products still present. Robinson contacted police and transported

the empty pallets and remaining product into the tractor-trailer to return to the Second

Harvest warehouse. Robinson explained that, based on the empty pallets and

remaining product, there must have been two entire tractor-trailer’s worth of product

in the MacGregor building at one point.4

      Van testified at trial that he had agreed to let Second Harvest temporarily store

goods at the MacGregor building where he owned a bread distribution company. He

confirmed that he saw Jackson unload a large amount of paper towels and toilet paper

off a tractor-trailer into the building. After the products remained there for over a

month, Van told Jackson that he needed to have his boss, Hall, come and pick them

back up. Because Van had given Hall the combination to the gate lock and a key to

the building, Van was not always there when Hall or his employees came to pick up

products, but he had seen a number of people remove product from the building into

pickup trucks. He even voiced his concern to Hall that the product was being stolen.



      4
        The recovered property was worth approximately $22,000. The CEO of
Second Harvest accompanied Robinson that day and took a video of the product
discovered in the MacGregor building, which was played for the jury.

                                           4
      After retrieving the property and confirming that it had never been entered into

Second Harvest’s database, Robinson contacted P&G to see if he could determine

when it had actually donated the products. He also spoke with Jackson, who initially

denied knowing anything about the recovered property. However, Jackson later told

Robinson that he had been instructed by his supervisor to unload the product at the

MacGregor building and not to enter the products into the Second Harvest database.

Robinson explained that there was no issue with sufficient storage in the Second

Harvest warehouse in Albany that would have necessitated using the MacGregor

building.

      Both Jackson and Hall were terminated shortly thereafter. After searching

Jackson’s desk, Robinson located several P&G bills of lading, which Second Harvest

is required to sign when receiving a donation. The products listed on those bills of

lading were not entered into the Second Harvest inventory database. In total, six

truckloads of product donated by P&G between January and June 2011, with a total

value of $164,000, were unaccounted for. During his investigation, Robinson also

determined that Second Harvest had received bills for truck rentals that Second

Harvest had not authorized. A fax cover sheet addressed to Jackson for one such

rental was found in Jackson’s desk, despite his lack of authorization to rent a truck.

                                          5
      Webbie Hill, a minister at a local church, testified that on two different

occasions he had seen products being unloaded from a Second Harvest truck and

Hall’s truck in front of the barbershop in Sylvester, Georgia. The owner of the

barbershop testified that he had purchased multiple cases of paper towels and tissues,

as well as a few chairs from a man selling them off of a flatbed trailer before

Robinson contacted him to tell him they belonged to Second Harvest. The State also

presented the testimony of George Barber, an officer with the Albany Police

Department, who interviewed Jackson on two separate dates. Jackson admitted during

his interview that he unloaded the products in March 2011 at the MacGregor

building. Recordings of those interviews were played for the jury.

      Jackson testified in his own defense and stated that in March 2011, Hall

instructed him to unload a shipment at the MacGregor building because Second

Harvest was in the process of moving warehouses and needed the extra space. He

denied being in charge of entering inventory into the database and specifically denied

selling any product belonging to Second Harvest.

      Following his convictions, Jackson filed a motion for acquittal on counts 1, 2,

4, 6, and 7 and a motion for new trial, which the trial court denied after a hearing.

This appeal followed.

                                          6
      1. In his first enumeration of error, Jackson asserts that his convictions on

counts 1, 2, 4, 6, and 7 must be vacated because the jury found him not guilty of theft

by conversion.

      We start by examining the relevant statutory framework for Jackson’s charged

offenses. A person commits the offense of theft by conversion when

      having lawfully obtained funds or other property of another . . . under an
      agreement or other known legal obligation to make a specified
      application of such funds or a specified disposition of such property, he
      knowingly converts the funds or property to his own use in violation of
      the agreement or legal obligation.


OCGA § 16-8-4 (a). OCGA § 16-8-12 then provides for punishment as either a

misdemeanor or a felony depending on various factors, including the value of the

property. In addition, if the property was taken by a fiduciary in breach of a fiduciary

obligation, the offense is punished as a felony with a heightened sentence. OCGA §

16-8-12 (a) (3).

      Here, the verdict form included four questions on each of the six counts as

follows:5


      5
       The verdict form followed the same format for each count. We provide the
questions for Count 1 as an example.

                                           7
      As to Count 1: Theft by Conversion, we the jury find the defendant:


             Guilty OR Not Guilty


      Also as to Count 1: As a Fiduciary, we the jury find the defendant:


             Guilty OR Not Guilty


      Also as to Count 1: If Not Guilty above, we the jury find the defendant:


             Guilty of Theft by Conversion of an amount exceeding $500.006
      OR Not Guilty


      Also as to Count 1: If Not Guilty above, we the jury find the defendant:


             Guilty of Theft by Conversion of an amount less than $499.99 OR
      Not Guilty


On Counts 1, 2, 4, 6, and 7, the jury found Jackson guilty only “[a]s a fiduciary” and

marked “not guilty” on the other questions. On Count 3, the jury found him guilty of




      6
       At the time of the alleges offenses, the threshold amount was $500.00. See §
16-8-12 (a) (1) (2011).

                                          8
theft by conversion, guilty of theft by conversion as a fiduciary, and guilty of theft by

conversion of an amount less than $499.99.7

      OCGA § 17-9-2 provides:

      The jury shall be the judges of the law and the facts in the trial of all
      criminal cases an shall give a general verdict of ‘guilty’ or ‘not guilty.’
      Upon a verdicts of ‘guilty,’ the sentence shall be imposed by the judge,
      unless otherwise provided by law. Verdicts are to have a reasonable
      intendment, are to receive a reasonable construction, and are not to be
      avoided unless from necessity.


“When an ambiguous verdict is returned by a jury, the trial court may refuse to accept

the verdict and require the jury to continue its deliberations.” (Citation and

punctuation omitted.) Ingram v. State, 290 Ga. 500, 503 (2) (722 SE2d 714) (2012).

However, after a verdict “has been received, recorded, and the jury dispersed, it may

not be amended in matter of substance, either by what the jurors say they intended to

find or otherwise.” OCGA § 17-9-40. See also Washington v. State, 339 Ga. App.

715, 726 (2) (c) (792 SE2d 479) (2016) (physical precedent only). And a defendant

“is entitled to the benefit of the doubt in the construction of an ambiguous verdict.”


      7
        Under the rule of lenity, the trial court sentenced Jackson to the lesser,
misdemeanor offense of theft by conversion on Count 3. Jackson is not appealing his
conviction on that count.

                                           9
(Citation omitted.) Lindsay v. State, 262 Ga. 665, 666 (1) (424 SE2d 616) (1993). If

after applying these principles, it is determined that the verdict returned is a mere

nullity, it has the legal effect of an acquittal. See Stubbs v. State, 220 Ga. App. 106,

107 (1) (469 SE2d 229) (1996) (“If the trial court receives a verdict of guilty on a

crime that was neither charged nor was a lesser included offense of a crime charged,

then the verdict has the legal effect of an acquittal.”); Cross v. State, 124 Ga. App.

152, 153 (2) (183 SE2d 93) (1971) (proper procedure by trial court would have been

to refuse to receive the verdict, but having received it, the sentence based thereon is

void) (physical precedent only).

      Here, the record reflects that both the parties and the trial court struggled with

the best method of presenting the counts on the verdict form and recognized the

potential confusion for the jury at the charge conference, in closing argument, and in

charging the jury. In its closing argument, the State acknowledged the difficulty in

crafting the verdict form:

      Now, on the verdict form – and there’s six pages because there’s six
      counts. You have to decide if we, the jury, find the Defendant guilty or
      not guilty. You also have to decide if he was a fiduciary. Did he owe an
      obligation to Second Harvest? You will say was he – I may have to
      change that because that’s not making sense to me. All right. But you do
      have to decide whether or not the property that was taken, the

                                          10
        truckloads, did it exceed – the value of it exceed $500.00? You do have
        to decide that.


And after charging the jury, the trial court attempted to explain the verdict form to the

jury:

        You will be asked – as to each count, you’ll be asked the following
        questions – the first question: As to theft by conversion, we the jury,
        find the Defendant – you can say guilty or not guilty. Then the question
        is: As a fiduciary, we, the jury, find the Defendant guilty or not guilty.
        Then it moves on. If you don’t find the Defendant guilty as a fiduciary,
        then you have to determine whether or not you find the Defendant guilty
        of theft by conversion in an amount exceeding $500.00, or not guilty in
        an amount exceeding $500.00. If you don’t find the Defendant guilty of
        an amount exceeding $500.00, the final question is: We, the jury, find
        the Defendant guilty or not guilty of theft by conversion in an amount
        less than $499.99. All right?


        So you have to – I think once you place your eyes on it, you’ll see it. It
        looks complicated, but once you kind of go through it, I think it
        simplifies. All right?


        After the jury informed the trial court that it had reached a verdict and

presented the verdict, the trial court addressed counsel outside the presence of the

jury and asked for any objections. Jackson objected to the illogical finding of not



                                           11
guilty of theft by conversion but guilty “as a fiduciary.” The trial court overruled the

objection, noting that they would be on a “slippery slope” if they were to “ask for oral

explanations of the verdict form.”8 The jury was then brought back in, and the

foreperson published the jury’s verdict.

      Construing the verdict form in order to give the defendant the benefit of the

doubt, as we must, we are constrained to find that the verdict returned is a legal

nullity as to Counts 1, 2, 4, 6, and 7. Although the jury found Jackson guilty “as a

fiduciary,” they specifically found him not guilty of theft by conversion in any

amount. These findings are at best ambiguous, and a fair reading of the verdict readily

includes the possibility that the jury found Jackson was acting in a fiduciary capacity

for Second Harvest but was not guilty of theft by conversion. Merely acting as a

fiduciary is not criminal. Giving Jackson the benefit of the doubt in construing the

verdict, we reverse Jackson’s convictions on Counts 1, 2, 4, 6, and 7. See Smith v.

State, 117 Ga. 16, 19 (43 SE 440) (1903); Stubbs, 220 Ga. App. at 107 (1) (where trial

court erred in sentencing defendant on one count, that portion of the judgment must

be reversed). Jackson’s remaining conviction on Count 3 will stand.

      8
        However, the trial court also agreed to schedule oral argument regarding the
validity of the verdict form. The trial court further stated that the fiduciary question
should have been listed first, theft by conversion second, and then the amounts.

                                           12
      2. Based on our holding in Division 1, we need not reach Jackson’s remaining

enumeration of error.

      Judgment reversed in part. Barnes, P. J., and Reese, J., concur.




                                        13
