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Jackson v. State

Court of Appeals of Georgia, First Division

March 12, 2019


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


         In June 2013, Gregory Jackson and his co-defendant Anthony Hall were indicted by the Dougherty County grand jury for seven counts of theft by conversion (breach of a fiduciary duty). Following a four-day jury trial, Jackson was sentenced to a total of twenty five years, with five years to be served in confinement, and ordered to pay $82, 055.44 in restitution.[1] Jackson now appeals his convictions on Counts 1, 2, 4, 6, and 7, asserting that the verdict is a nullity as to those counts.[2] For the reasons set forth below, we agree and reverse his convictions on Counts 1, 2, 4, 6, and 7.

         Viewed in the light most favorable to the verdict, [3] the evidence shows that Second Harvest of South Georgia ("Second Harvest") is a nonprofit hunger relief organization that distributes products and food it receives from corporate donations to local individuals. In April 2010, Second Harvest absorbed another local nonprofit, Food Bank of Southwest Georgia, where Jackson and Hall were employed at the time. Jackson stayed on with Second Harvest as the warehouse manager, and Hall remained as the branch director. Jackson's role included many different responsibilities, including shipping, receiving, supervising the drivers, facility safety, inventory of all products, product placement in the building, and scheduling. Second Harvest used different vehicles for its deliveries, including utility trailers, straight trucks capable of carrying ten to twelve pallets, and a tractor-trailer that could carry twenty-two to twenty-four pallets.

         As a nonprofit, Second Harvest is required to keep records and account for every donated item. Jackson was responsible for making sure that detailed information for every donation was entered in the database. In July 2011, Will Robinson, the chief operations officer for Second Harvest, received an anonymous call that prompted him to travel to a barbershop in Sylvester, Georgia to inspect what appeared to be several pallets of their donated products for sale, including paper products from Proctor & Gamble ("P&G") and chairs that Second Harvest kept in stock. Robinson then contacted Jackson and Hall to drive one of the Second Harvest trucks to that location to retrieve the items and bring them back to the warehouse.

         Robinson testified that he also discovered at various times in 2011 that the GPS tracker on the tractor-trailer appeared to have been disabled or turned off so that he was not able to track the vehicle's location. Whenever that occurred, he would contact Jackson to see what was happening, and Jackson would tell him that he would take a look at the unit and get it working again. This continued until Robinson decided to move the tractor-trailer to the Second Harvest location in Valdosta where he could keep a direct eye on it.

         In August 2011, Robinson received a call from Larry Van who asked him when he was going to move his product out of his warehouse, known as the "MacGregor building." Robinson was confused because he was not aware of any storage of Second Harvest property offsite. Van agreed to let him come over to the MacGregor building to see what he was talking about. There, Robinson found 17-18 empty pallets that had obviously had P&G products on them at some point and several other pallets with P&G products still present. Robinson contacted police and transported the empty pallets and remaining product into the tractor-trailer to return to the Second Harvest warehouse. Robinson explained that, based on the empty pallets and remaining product, there must have been two entire tractor-trailer's worth of product in the MacGregor building at one point.[4]

         Van testified at trial that he had agreed to let Second Harvest temporarily store goods at the MacGregor building where he owned a bread distribution company. He confirmed that he saw Jackson unload a large amount of paper towels and toilet paper off a tractor-trailer into the building. After the products remained there for over a month, Van told Jackson that he needed to have his boss, Hall, come and pick them back up. Because Van had given Hall the combination to the gate lock and a key to the building, Van was not always there when Hall or his employees came to pick up products, but he had seen a number of people remove product from the building into pickup trucks. He even voiced his concern to Hall that the product was being stolen.

         After retrieving the property and confirming that it had never been entered into Second Harvest's database, Robinson contacted P&G to see if he could determine when it had actually donated the products. He also spoke with Jackson, who initially denied knowing anything about the recovered property. However, Jackson later told Robinson that he had been instructed by his supervisor to unload the product at the MacGregor building and not to enter the products into the Second Harvest database. Robinson explained that there was no issue with sufficient storage in the Second Harvest warehouse in Albany that would have necessitated using the MacGregor building.

         Both Jackson and Hall were terminated shortly thereafter. After searching Jackson's desk, Robinson located several P&G bills of lading, which Second Harvest is required to sign when receiving a donation. The products listed on those bills of lading were not entered into the Second Harvest inventory database. In total, six truckloads of product donated by P&G between January and June 2011, with a total value of $164, 000, were unaccounted for. During his investigation, Robinson also determined that Second Harvest had received bills for truck rentals that Second Harvest had not authorized. A fax cover sheet addressed to Jackson for one such rental was found in Jackson's desk, despite his lack of authorization to rent a truck.

         Webbie Hill, a minister at a local church, testified that on two different occasions he had seen products being unloaded from a Second Harvest truck and Hall's truck in front of the barbershop in Sylvester, Georgia. The owner of the barbershop testified that he had purchased multiple cases of paper towels and tissues, as well as a few chairs from a man selling them off of a flatbed trailer before Robinson contacted him to tell him they belonged to Second Harvest. The State also presented the testimony of George Barber, an officer with the Albany Police Department, who interviewed Jackson on two separate dates. Jackson admitted during his interview that he unloaded the products in March 2011 at the MacGregor building. Recordings of those interviews were played for the jury.

         Jackson testified in his own defense and stated that in March 2011, Hall instructed him to unload a shipment at the MacGregor building because Second Harvest was in the process of moving warehouses and needed the extra space. He denied being in charge of entering inventory into the database and specifically denied selling any product belonging to Second Harvest.

         Following his convictions, Jackson filed a motion for acquittal on counts 1, 2, 4, 6, and 7 and a motion for new trial, which the trial court denied after a hearing. This appeal followed.

         1. In his first enumeration of error, Jackson asserts that his convictions on counts 1, 2, 4, 6, and 7 must be vacated because the jury found him not guilty of theft by conversion.

         We start by examining the relevant statutory framework for Jackson's charged offenses. A person commits the ...

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