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Heatherly v. State

Supreme Court of Georgia

June 19, 2017

HEATHERLY
v.
THE STATE.

          HINES, Chief Justice.

         This Court granted certiorari to the Court of Appeals in Heatherly v. State, 336 Ga.App. 875 (765 S.E.2d 431) (2016), to determine whether the Court of Appeals erred in affirming Robert Wayne Heatherly's misdemeanor conviction. Finding that the Court of Appeals was correct in rejecting Heatherly's assertion that, in this case, the testimony of a single witness accomplice had to be corroborated, we affirm.

         Construed to support the trial court's judgment after it conducted Heatherly's bench trial, the evidence showed that in 2012, Heatherly and Donald Lewis Malone worked at an industrial plant owned by Dalton Paper Products, Inc. Plant officials discovered that certain materials were missing from a secured area of the plant, and the plant manager received an anonymous telephone call informing him that Malone was stealing from the plant. Law enforcement investigators interviewed Malone, who confessed to selling stolen materials, and stated that Heatherly provided the materials. Both men were charged with theft by taking under OCGA § 16-8-2, [1] and, as part of a plea agreement, Malone agreed to testify at Heatherly's trial; during that testimony, Malone stated that Heatherly initiated the plan to steal materials from the plant, that Malone would sell the materials as scrap metal, and that on two occasions he met Heatherly at a convenience store near the plant after Heatherly ended his night shift, and received from him materials taken from the plant, and that the agreement between the two men involved an equal split of the proceeds from any sale of the materials that Malone accomplished.

         Heatherly was originally charged with theft by taking property valued at more than $500.00, which under former OCGA § 16-8-12 (a) (1), [2] the then- applicable sentencing statute, would have subjected him to felony punishment.[3]However, the court ultimately determined that the value of the stolen property was less than $500.00, and convicted and sentenced Heatherly for a misdemeanor offense.[4]

         Heatherly appealed, and argued in his sole enumeration of error presented to the Court of Appeals that, as he had originally been charged with theft by taking property with a value of more than $500.00, regardless of the eventual proof of the value of the stolen property, and regardless of his eventual sentence, his case must be considered a "felony case" for purposes of OCGA § 24-14-8, [5] which provides that the "testimony of a single witness is generally sufficient to establish a fact [but in] felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient." He also asserted that under the State's evidence and the trial court's judgment, Malone must be considered an accomplice of Heatherly's, [6] and that there was no evidence corroborating Malone's testimony that Heatherly was involved in the theft of the materials from the plant.

         The Court of Appeals rejected Heatherly's argument, deciding that, even though Heatherly was initially prosecuted for theft by taking that would result in felony punishment, he was ultimately convicted of, and sentenced for, theft that carried misdemeanor punishment, and as OCGA § 24-14-8 does not require corroboration of accomplice testimony for a misdemeanor level conviction such as Heatherly's, any argument built on a characterization of his appeal as involving a "felony case" was misplaced. This was not error.

         Certainly, that a defendant like Heatherly is charged with a felony level of theft has implications for his prosecution at trial. Of course, the trial court must instruct the jury as to the requirement that it has to find value in a felony amount in order to support a felony conviction.[7] See Brown v. State, 302 Ga.App. 641, 645-646 (3) (a) (692 S.E.2d 9) (2010); Price v. State, 283 Ga.App. 564, 566-567 (4) (642 S.E.2d 191) (2007).[8] And, the evidence must be sufficient to sustain a guilty verdict for a felony level theft, if one is found. See Mendez v. State, 327 Ga.App. 497, 498-499 (1) (759 S.E.2d 574) (2014); Gorham v. State, 287 Ga.App. 404, 405-406 (1) (651 S.E.2d 520) (2007) reversed on other grounds, McCart v. State, 289 Ga.App. 830, 833 (1) (658 S.E.2d 465) (2008). See also Reese v. State, 313 Ga.App. 746, 747-748 (1) (b) (722 S.E.2d 441) (2012), involving theft by receiving, which is also sentenced under OCGA § 16-8-12. But, no issue regarding sufficiency of the evidence for a felony theft conviction is presented here; Heatherly was convicted of a misdemeanor level theft.[9] See OCGA § 16-1-3 (4).[10] And, it is from the misdemeanor final judgment of conviction and sentence that Heatherly brought his appeal, see OCGA § 5-6-34 (a) (1), [11] and the fact that he was originally indicted for a felony grade theft does not alter that.

         We note that this is not the first time that this Court has been faced with a situation similar to that presented here, i.e., a theft initially alleged to have involved property of a value that would warrant felony punishment when there is then evidence introduced that the value of the property would warrant only misdemeanor punishment, and the factfinder is properly aware of the law as to the lesser grade theft; and, to support a misdemeanor conviction in such case, the factfinder would not have to find that the testimony of an accomplice was corroborated. In Wall v. State, 75 Ga. 474 (3) (1885), the defendant was indicted for larceny of an amount greater than fifty dollars, which under the law at the time would have subjected him to felony punishment, but as there was evidence that the value of the stolen

property was less than $50 in value, there was no error in charging that corroboration of the testimony of accomplices was not essential to a conviction, if the jury should be of the opinion that the offense amounted to nothing more than a misdemeanor.

Id.[12] Accordingly, even though the prosecution was initiated as one seeking felony punishment, the factfinder was empowered to determine that the value of the property taken was less than the felony value, and when that was the decision the factfinder reached, the case was not a "felony case" for purposes of the accomplice corroboration requirement.

         Judgment affirmed.

          Melton, P.J., Benham, Hunstein, Nahmias, Blackwell, Boggs, Grant, JJ., and Judge John E. Morse concur.

          Peterson, ...


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