                               FIRST DIVISION
                                DOYLE, C. J.,
                           BOGGS and PETERSON, 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 22, 2016




In the Court of Appeals of Georgia
 A15A2104. LINDSAY v. THE STATE.                                               BO-079C

      BOGGS, Judge.

      Following a bench trial, Mark Lindsay appeals from his convictions for seven

counts of theft by receiving stolen property.1 He contends that insufficient evidence

supports each of his convictions, that his constitutional right to a speedy trial was

violated, that he received ineffective assistance of counsel, and that the trial court

erred in its sentence. Based upon the State’s failure to prove an essential element of

the crimes it charged Lindsay with committing, we reverse.




      1
          Lindsay was acquitted on an eighth count.
      The State indicted Lindsay for theft by receiving various tangible goods that

were purchased with funds embezzled from the victim by Lindsay’s mistress.2 It is

undisputed from the evidence presented at trial that the goods given to Lindsay were

not taken from the victim. Instead, his mistress purchased the items with funds she

had embezzled and then gave the items to Lindsay. The State presented evidence that

Lindsay knew the items had been purchased with the employer’s funds.

      1. Lindsay asserts that his conduct in receiving goods purchased with stolen

funds cannot satisfy the “receiving stolen property” element of OCGA § 16-8-7 (a).

As the trial court noted below, this is an issue of first impression in Georgia. When

considering this issue, we must bear in mind that “[w]here the violation of a statute

is made criminal, it must be tested by the rule of strict construction applicable to

criminal statutes.” (Citation and punctuation omitted.) Burmaster v. State, 233 Ga.

753, 755 (213 SE2d 650) (1975). “[I]n applying this rule the plain meaning of

language must not be disregarded, but will be given full effect.” Cargile v. State, 194

Ga. 20, 23 (2) (20 SE2d 416) (1942). And “[w]hen a criminal statute fairly and

reasonably is subject to two constructions, one which would render an act criminal,

      2
        The State did not charge Lindsay with theft by taking as a party to a crime or
conspiracy. See OCGA §§ 16-2-20 (party to a crime), 16-4-8 (conspiracy), 16-8-2
(theft by taking).

                                          2
the other which would not, the statute must be construed strictly against the State and

in favor of the accused.” (Citation and punctuation omitted.) Frix v. State, 298 Ga.

App. 538, 542-543 (1) (a) (680 SE2d 582) (2009).

      OCGA § 16-8-7 (a) provides:

      A person commits the offense of theft by receiving stolen property when
      he receives, disposes of, or retains stolen property which he knows or
      should know was stolen unless the property is received, disposed of, or
      retained with intent to restore it to the owner. “Receiving” means
      acquiring possession or control or lending on the security of the
      property.


      In support of its argument that goods purchased with stolen funds qualify as

stolen property, the State asserts that property traceable to stolen funds remains the

property of the victim of the theft through equity. See OCGA § 53-12-132 (a)

(creation of constructive trust); First Nat. Bank &c. v. Hill, 412 FSupp. 422, 425

(N.D. Ga. 1976) (it is a “general rule of common law that no title is acquired by an

embezzler, but that such title remains in the victim, who is the beneficial owner of a

constructive trust which is imposed on such monies or on property purchased with

such money”). Compare Atlanta Classic Cars, Inc. v. Chih Hung USA Auto Corp.,

209 Ga. App. 908, 910 (2) (439 SE2d 498) (1993) (no constructive trust imposed


                                          3
where defendant had no knowledge that party was converting another’s money by

paying off amounts for the purchase of cars); see also OCGA § 23-1-14 (“When one

of two innocent persons must suffer by the act of a third person, he who put it in the

power of the third person to inflict the injury shall bear the loss.”) In a case involving

an indictment which alleged the wrong owner of stolen goods, we held that “[t]he

technical quality of an owner’s interest need not be pursued in a prosecution for theft

by receiving, because ownership is important only in the sense of whether the goods

were owned by someone other than the accused.” (Citation, punctuation, and footnote

omitted.) Greeson v. State, 253 Ga. App. 161, 165 (4) (558 SE2d 749) (2002).

      But whether the owner may have had an equitable interest in the goods

purchased by the mistress with the embezzled funds begs the question of whether

these particular goods satisfy the “stolen property” element of OCGA § 16-8-7 under

a plain reading of the statute. After carefully considering this issue, we conclude that

a common sense reading of the plain language of the statute requires the State to

prove that the tangible goods received by the defendant were the same goods that

were taken from the owner. See Causey v. State, 139 Ga. App. 499, 500 (1) (229

SE2d 1) (1976) (state must present evidence sufficiently identifying goods in

defendant’s possession as same goods that were stolen). “The unambiguous words of

                                            4
a criminal statute are not to be altered by judicial construction so as to punish one not

otherwise within its reach, however deserving of punishment his conduct might

seem.” (Citation omitted.) Waldroup v. State, 198 Ga. 144, 145 (30 SE2d 896)

(1944). Accordingly, we reverse Lindsay’s convictions for theft by receiving stolen

property.

        2. Our holding in Division 1 renders Lindsay’s remaining enumerations of error

moot.

        Judgment reversed. Doyle, C. J. and Peterson, J., concur.




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