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Scott v. State

Court of Appeals of Georgia, First Division

February 1, 2018

SCOTT
v.
THE STATE.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          BARNES, PRESIDING JUDGE.

         Derrick Scott was employed by a company that recycles metals, and after falsifying an invoice, he was charged with criminal attempt to commit theft by taking by a fiduciary, a felony. Following a jury trial, Scott was found guilty, and now appeals from the denial of his motion for new trial. On appeal, Scott contends that the trial court erred in denying his motion for directed verdict because there was insufficient evidence of a fiduciary relationship between Scott and his employer. Following our review, and finding the evidence insufficient to establish Scott's fiduciary relationship, we reverse.

         "On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence." (Citation and punctuation omitted.) Hall v. State, 335 Ga.App. 895, 895 (783 S.E.2d 400) (2016). So viewed, the evidence demonstrates that as an employee of M&S Auto Parts and Recycling, Scott was one of two employees responsible for assisting customers who came to the business to sell recyclable metals.[1] His duties included sorting and weighing the metals, and creating an invoice that reflected the weight and price of each metal and the amount owed to the customer. A computer itemized the amount of the payout depending on the type of metal, weight, and the daily per-pound pricing. To receive payment, the customer would present the invoice to the cashier at the main office. The owner testified that there were three cameras in the recycling area because the employees were "handling . . . very expensive metals."

         On September 29, 2011, Scott created an invoice for a customer for the sale of over 200 pounds of copper and other metals with an amount due of $562.60. However, when M&S's owner reviewed the shop's surveillance video from Scott's work station, there was no transaction for the invoiced metals on the videotape, and Scott later admitted that he had created the fraudulent invoice. He was arrested and indicted on one count of criminal attempt to commit theft by taking (fiduciary). During Scott's ensuing jury trial, at the close of the State's case, he moved for a directed verdict of acquittal, which the trial court denied. The jury found Scott guilty as charged, and he was sentenced to seven and one-half years, with three to serve in prison.

         On appeal, Scott contends that the trial court erred in denying his motion for a directed verdict of acquittal on the charge of criminal attempt to commit theft by taking because there was insufficient evidence that he was in a fiduciary relationship with M&S. He asserts that his felony conviction was based on the purported fiduciary relationship with his employer, and because he was not M&S's fiduciary, he could be guilty of only a misdemeanor based on the $562.00 value of the attempted theft.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. We view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.

(Citation and punctuation omitted.) Valentine v. State, 301 Ga.App. 630, 630-631 (689 S.E.2d 76) (2009).

          "A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated." OCGA § 16-8-2. "A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime." OCGA § 16-4-1. And,

[[a] person convicted of a violation of Code Sections 16-8-2 through 16-8-9 shall be punished as for a misdemeanor except . . . [i]f the property was taken by a fiduciary in breach of a fiduciary obligation or by an officer or employee of a government or a financial institution in breach of his or her duties as such officer or employee, by imprisonment for not less than one nor more than 15 years, a fine not to exceed the amount provided by Code Section 17-10-8, or both."

OCGA § 16-8-12 (a) (3).

[F]iduciary duties are owed by those in confidential relationships as defined by OCGA § 23-2-58[, which] provides that: Any relationship shall be deemed confidential, whether arising from nature, created by law, or resulting from contracts, where one party is so situated as to exercise a controlling [influence] over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the vlaw requires the utmost good faith, such as the relationship between partners, principal and agent, etc.

(Citation and punctuation omitted). Physician Specialists in Anesthesia v. Wildmon, 238 Ga.App. 730, 732 (1) (521 S.E.2d 358) (1999). "[T]he existence of a fiduciary relationship is a question for the jury unless there is a complete absence of evidence of such a relationship[.]" Levine v. SunTrust Robinson Humphrey, 321 Ga.App. 268, 281 (7) (a) (740 S.E.2d 672) (2013).

         In contesting the sufficiency of the evidence to demonstrate his fiduciary relationship with M&S, Scott maintains that with no managerial or supervisory duties and no decision making authority for any of the business matters, his relationship was that of ...


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