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Wallace v. State

Court of Appeals of Georgia, First Division

June 6, 2017



          Barnes, Presiding Judge.

         Following a jury trial, Clarence Steven Wallace was convicted of three counts of felony theft by shoplifting and sentenced to ten years to serve as a recidivist under OCGA § 17-10-7 (a) and (c). He filed a motion for new trial alleging the general grounds, which Wallace later amended to include other claims, including ineffective assistance of counsel. The trial court denied his motion, and Wallace appeals from that order. Following our review, we affirm.

         "On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict." Marriott v. State, 320 Ga.App. 58, 58 (739 S.E.2d 68) (2013). So viewed, the record demonstrates that Wallace drove his co-defendant, Lebron Grady, to Whitfield County so that Grady could shoplift specific items for Wallace in order to repay a debt to Wallace. As Wallace waited in his truck, Grady took electric toothbrushes and S.D. cards from a CVS Pharmacy. The men then continued the shoplifting spree, taking boots from the Tractor Supply Company, fishing reels, headphones, a cellular phone and computer from Walmart, a cellular phone booster from Radio Shack, and shoes from JCPenney. At the next stop, a liquor store, Wallace purchased a soda while Grady took two bottles of Crown Royal and started to leave the store. The owner saw him, and during an ensuing chase, Grady dropped the liquor bottle while he ran away.

         Wallace picked Grady up in his truck, and, after the shop owner notified police of the theft and the type of vehicle the men were driving, police stopped the pair at a traffic stop conducted a few miles from the liquor store. After Wallace gave police permission to search the truck, police discovered the stolen items in the bed of the truck. Wallace denied participating in the crimes, but consented to a search of his person, and the police retrieved an unopened lip gloss-type product from his pocket, which was later identified as an item stolen from Walmart. Both men were arrested and indicted on three counts of felony shoplifting.

         1. Wallace first contends that his felony shoplifting conviction on Count 3 of the indictment is void. He asserts that because the State used the aggregated value of the goods from the various stores to support the felony charge, the indictment had to specify that the thefts occurred within the statutorily prescribed period of seven days or less. We do not agree.

         The first count of the indictment charged Wallace with felony shoplifting for taking goods valued at more than $500 from CVS, and Count 2 charged the same for the shoplifting that occurred at WalMart. Count 3 of the indictment, however, provided, in pertinent part, that Wallace, "did take possession of . . . the property of Tractor Supply Company, . . . the property of JC Penney, . . . the property of Radio Shack, . . . and . . . the property of Cox Spirits, . . . said merchandise totaling a value greater than five hundred dollars ($500.00)."

         Wallace maintains that although the State did not refer to a specific statute in the indictment, the only provision of the shoplifting statute that covers aggregation of separate misdemeanor-level thefts is OCGA § 16-8-14 (b) (3), which requires that the aggregate acts occur during a period of seven days or less. He argues that the seven-day period is a material element of the statute that the State failed to allege in the indictment, which only stated that the thefts occurred "on or about" May 27, 2014. Wallace further contends that pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490 (IV) (120 S.Ct. 2348, 147 L.Ed.2d 435) (2000), any fact that increases the penalty for a crime beyond the statutory maximum, other than a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt. Thus, he argues, because the time period of seven days would act to increase his crime from a misdemeanor to a felony, it was a material element of Count 3, and the jury should have been instructed to make that determination.

         OCGA § 16-8-14 (b) (2), provides that a person who commits the offense of theft by shoplifting is guilty of a felony where the property stolen has a value in excess of $500, and

[a] person convicted of the offense of theft by shoplifting, as provided in subsection (a) of this Code section, when the property which was the subject of the theft is taken from three separate stores or retail establishments within one county during a period of seven days or less and when the aggregate value of the property which was the subject of each theft exceeds $500.00 in value, commits a felony.

OCGA § 16-8-14 (b) (3).

         Here, even assuming without deciding that the date was a material averment of Count 3 of the indictment and the State had to prove that the aggregate shoplifting offenses happened within a seven-day period or less, that period of time was sufficiently alleged in the indictment here by saying that the crimes occurred "on or about" May 27, 2014. Moreover, there was no fatal variance because the evidence at trial demonstrated that the shoplifting that occurred at the three stores at issue in Count 3 occurred on the same day, May 27, 2014.

         Likewise, Wallace's contention that his conviction under Count 3 was void under the precedent established by Apprendi because the aggregate crimes provision in OCGA § 16-8-14 (b) (3) increased the penalty of the crime beyond the prescribed statutory maximum is meritless. "Because the sentence at issue was within the statutory maximum and did not extend [Wallace's] punishment beyond the prescribed range supported by the jury's verdict, Apprendi simply does not apply to this sentencing scheme."(Punctuation omitted.) Ray v. State, 338 Ga.App. 822, 34-35 (8) (a) (792 S.E.2d 421) (2016).

         2. Wallace also contends that trial counsel was ineffective for failing to impeach several witnesses, and in failing to point out during closing argument the ...

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