BARNES, P. J., MCMILLIAN and REESE, JJ.
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. Jackson now appeals his convictions on
Counts 1, 2, 4, 6, and 7, asserting that the verdict is a
nullity as to those counts. For the reasons set forth below,
we agree and reverse his convictions on Counts 1, 2, 4, 6,
in the light most favorable to the verdict,  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
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.
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.
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.
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.
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
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.
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.
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
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.
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.
start by examining the relevant statutory framework for
Jackson's charged offenses. A person commits the ...