March 17, 2015
Cert. applied for.
Theft by taking. Hall Superior Court. Before Judge Gosselin.
Lee Darragh, District Attorney, William C. Akins, Assistant District Attorney, for appellant.
Brett M. Willis, for appellee.
DOYLE, Presiding Judge. Miller and Dillard, JJ., concur.
Doyle, Presiding Judge.
Shannon D. Thomas was indicted for one count of felony theft by taking. Thomas filed a demurrer/motion to quash the indictment on the ground that it was defective. The trial court granted the motion, and the State now appeals. For the reasons that follow, we affirm.
The record shows that Thomas was indicted for felony theft by taking in violation of OCGA § 16-8-2 in a count alleging that " between [November 17, 2012,] and [December 15, 2012, Thomas] did unlawfully take United States funds, the property of Robert Lee, with a value greater than $5,000.00, with intent to deprive said owner of said property . ..." Thomas filed a demurrer/motion to quash the indictment, arguing that the single count failed to provide sufficient notice regarding the manner of commission or identify the date of the crime with sufficient particularity. She contended that pursuant to State v. Layman, the State was required to narrow the date of the alleged occurrence of the crime if it reasonably could do so.
[331 Ga.App. 221] At the hearing on the motion to quash, the State alleged that prior to the time frame in the indictment, Thomas worked as a caretaker through a nursing business for Lee and his wife. After Ms. Lee passed away, Thomas's employment with Lee ceased, and thereafter, a new employee of Lee's discovered that someone had been using a credit card issued to Lee, which card he had never used and which he had not authorized any other individual to use. This discovery was made after the employee found that a $2,500 deduction from Lee's bank account was made to cover the charges on the credit card. While investigating the purchases made with the credit card, surveillance video identified Thomas and her estranged husband as individuals who were making purchases with the credit card. Lee had not authorized Thomas to do so.
Thomas argued, however, that the State failed to allege sufficiently the manner in which the theft occurred, that the State failed to inform Thomas of all the charges against which she would need to defend at trial and would not protect her from future prosecutions. Thomas explained that instead of alleging the specific instances of theft from use of the credit card, the State instead alleged one instance of theft of $2,500.
In an oral ruling, the trial court granted the motion to quash after a hearing, and the State filed a motion for reconsideration of that ruling, which was denied by the trial court in a written order, finding that because the thefts were made using a financial card, it would be relatively simple for the State to allege with specific dates the various instances of theft.
" Because we are reviewing the indictment on interlocutory appeal, before any trial, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance." 
The State contends that the trial court erred by granting the special demurrer because it was sufficient to allege the date range of all the financial card transactions, and specific dates were not necessary. We disagree.
First, the indictment fails to mention the manner of commission of the alleged thefts, that is, whether the thefts were separate instances of use of the credit card or whether the theft was the $2,500 taken from Lee's account to cover that balance. Conceivably,
Thomas could later be charged with some other violation for the individual unauthorized uses of the card separately from the theft of the $2,500, [331 Ga.App. 222] or perhaps Thomas was not the individual using the card in all those instances. Moreover, the State could easily ascertain the dates the alleged crimes occurred and could have stated the manner in which the theft occurred, and it was, therefore, appropriate for the trial court to grant the motion to quash.
The State cites to Stack-Thorpe v. State, Christian v. State, and Patterson v. State, for the proposition that the State may allege many small instances of theft over time in one count as a felony rather than a misdemeanor; those cases, however, are inapposite because they were post-conviction appeals addressing sufficiency of the evidence in which the indictment was not alleged to be infirm or in which this Court declined to review the alleged imperfect indictment after conviction.
Accordingly, the State's enumeration of error is without merit. Based on our conclusion as to this issue, it is unnecessary for us to reach the issue raised in the State's second enumeration of error.
Miller and Dillard, JJ., concur.