2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 8 - Offenses Involving Theft
Article 1 - Theft
§ 16-8-14. Theft by Shoplifting

Universal Citation: GA Code § 16-8-14 (2020)
  1. A person commits the offense of theft by shoplifting when such person alone or in concert with another person, with the intent of appropriating merchandise to his or her own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following:
    1. Conceals or takes possession of the goods or merchandise of any store or retail establishment;
    2. Alters the price tag or other price marking on goods or merchandise of any store or retail establishment;
    3. Transfers the goods or merchandise of any store or retail establishment from one container to another;
    4. Interchanges the label or price tag from one item of merchandise with a label or price tag for another item of merchandise; or
    5. Wrongfully causes the amount paid to be less than the merchant's stated price for the merchandise.
    1. 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 $500.00 or less in value shall be punished as for a misdemeanor; provided, however, that:
      1. Upon conviction of a second offense for shoplifting, where the first offense is either a felony or a misdemeanor, as defined by this Code section, in addition to or in lieu of any imprisonment which might be imposed, the defendant shall be fined not less than $500.00, and the fine shall not be suspended or probated;
      2. Upon conviction of a third offense for shoplifting, when the first two offenses are either felonies or misdemeanors, or a combination of a felony and a misdemeanor, as defined by this Code section, in addition to or in lieu of any fine which might be imposed, the defendant shall be punished by imprisonment for not less than 30 days or confinement in a "special alternative incarceration-probation boot camp," probation detention center, or other community correctional facility of the Department of Corrections for a period of 120 days or shall be sentenced to monitored house arrest for a period of 120 days and, in addition to such types of confinement, may be required to undergo psychological evaluation and treatment to be paid for by the defendant; and such sentence of imprisonment or confinement shall not be suspended, probated, deferred, or withheld; and
      3. Upon conviction of a fourth or subsequent offense for shoplifting, where the prior convictions are either felonies or misdemeanors, or any combination of felonies and misdemeanors, as defined by this Code section, the defendant commits a felony and shall be punished by imprisonment for not less than one nor more than ten years; and the first year of such sentence shall not be suspended, probated, deferred, or withheld.
    2. 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 exceeds $500.00 in value commits a felony and shall be punished by imprisonment for not less than one nor more than ten years.
    3. 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 and shall be punished by imprisonment for not less than one nor more than ten years.
    4. 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 during a period of 180 days and when the aggregate value of the property which was the subject of each theft exceeds $500.00 in value, commits a felony and shall be punished by imprisonment for not less than one nor more than ten years.
  2. In all cases involving theft by shoplifting, the term "value" means the actual retail price of the property at the time and place of the offense. The unaltered price tag or other marking on property, or duly identified photographs thereof, shall be prima-facie evidence of value and ownership of the property.
  3. Subsection (b) of this Code section shall in no way affect the authority of a sentencing judge to provide for a sentence to be served on weekends or during the nonworking hours of the defendant as provided in Code Section 17-10-3, relative to punishment for misdemeanors.

(Ga. L. 1957, p. 115, §§ 1, 3; Code 1933, § 26-1802.1, enacted by Ga. L. 1978, p. 2257, § 2; Ga. L. 1983, p. 457, § 1; Ga. L. 1997, p. 1394, § 1; Ga. L. 1998, p. 578, § 1; Ga. L. 2000, p. 870, § 1; Ga. L. 2012, p. 899, § 3-3/HB 1176; Ga. L. 2016, p. 443, § 13-1/SB 367; Ga. L. 2017, p. 774, § 16/HB 323.)

The 2016 amendment, effective July 1, 2016, in subparagraph (b)(1)(B), substituted "when the first" for "where the first" near the beginning, deleted ", diversion center," following "detention center" in the middle, and deleted "either" following "in addition to" near the end.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in subparagraph (b)(1)(B).

Cross references.

- Unlawful use of emergency exit door, § 16-11-40.

Recovery for detention or arrest of person suspected of shoplifting, § 51-7-60.

Antishoplifting device, § 51-7-61.

Editor's notes.

- Ga. L. 1998, p. 578, § 2, not codified by the General Assembly, provides that the 1998 amendment applies with respect to offenses committed on or after July 1, 1998. Offenses committed prior to July 1, 1998, shall continue to be governed by and punishable as provided in the law as it existed prior to Ga. L. 1998, p. 578.

Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."

Law reviews.

- For article on recidivism and convictions based on nolo contendere pleas, see 13 Ga. L. Rev. 723 (1970). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B.J. 8 (2001). For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Article: Immigration," see 65 Emory L. J. 1039 (2014). For annual survey of immigration law, see 67 Mercer L. Rev. 947 (2016). For article on the 2016 amendment of this Code section, see 33 Ga. St. U.L. Rev. 139 (2016). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018). For note on 2000 amendment of this Code section, see 17 Ga. St. U.L. Rev. 110 (2000).

JUDICIAL DECISIONS

Constitutionality of Code section.

- Ga. L. 1957, p. 115 (see now O.C.G.A. § 16-8-14) clearly spells out what acts constitute shoplifting and is amply definite and certain, and is not unconstitutional for vagueness. Watts v. State, 224 Ga. 596, 163 S.E.2d 695 (1968).

Relationship with federal immigration law.

- Conviction under the Georgia statute for shoplifting with intent to appropriate merchandise to one's own use without paying for the merchandise, under O.C.G.A. § 16-8-14, does not constitute a theft offense within the meaning of 8 U.S.C. § 1101(a)(43)(G). The Georgia statute punishes both conduct that qualifies as a theft offense and conduct that does not; therefore, the Georgia statute is divisible. Ramos v. United States AG, 709 F.3d 1066 (11th Cir. 2013).

Removal of merchandise from immediate place of display is not act of shoplifting cognizable under the criminal laws of this state. Martin v. State, 168 Ga. App. 623, 309 S.E.2d 899 (1983).

It is not required that a taking must occur in a specified area of a store or retail establishment. Hayes v. State, 168 Ga. App. 710, 309 S.E.2d 843 (1983).

Element of intent.

- Although the defendant possessed goods only within the store, there was evidence that the defendant possessed the goods with the intent of appropriating the goods to defendant's own use without paying for the goods. Mathis v. State, 194 Ga. App. 498, 391 S.E.2d 130 (1990).

Although criminal intent is a material element of shoplifting, a store employee is not required to determine the shopper's subjective intent before seeking an arrest and prosecution under the shoplifting statute. K-Mart Corp. v. Coker, 261 Ga. 745, 410 S.E.2d 425 (1991).

There was probable cause to prosecute a store customer for the offense of shoplifting, where the customer removed a lipstick from its package, abandoned the empty package with the price tag, walked through the store for at least 20 minutes with the lipstick in hand, failed to return the lipstick to a nearby service desk as the customer left, and instead discarded the tube in a handbag on a rack where no employee would be likely to discover the lipstick and return it to its original package. K-Mart Corp. v. Coker, 261 Ga. 745, 410 S.E.2d 425 (1991).

State proved the element of intent to appropriate the merchandise for defendant's own use after the defendant was seen stuffing two packages of meat into the waist of defendant's trousers and pulling the defendant's shirt down over the packages, but returned the meat to the display case after the store security guard and store manager started watching the defendant's actions and following the defendant. Racquemore v. State, 204 Ga. App. 88, 418 S.E.2d 448 (1992).

Although one may commit theft by shoplifting when one takes possession of store merchandise with any of three intents, i.e. (1) to appropriate the property to (one's) own use without paying for the property, (2) to deprive the owner of the possession of the property, or (3) to deprive the owner of the value of the property, these three intents may overlap and are not always mutually exclusive. Gilliam v. State, 237 Ga. App. 476, 517 S.E.2d 348 (1999).

Trial court plainly erred in instructing the jury on the elements of shoplifting because the court omitted the element of intent, a material element of the offense, which relieved the state of the state's burden to prove each element of the crime. Amosu v. State, Ga. App. , S.E.2d (Aug. 27, 2020).

Date sufficiently alleged.

- Even assuming that the date was a material averment in the theft by shoplifting count, because the period of time was sufficiently alleged in the indictment by saying that the crimes occurred on or about a date, the indictment sufficiently alleged the period of time. Wallace v. State, 341 Ga. App. 576, 802 S.E.2d 34 (2017).

Value of stolen item is relevant only for distinguishing between misdemeanor and felony. Drinkard v. State, 155 Ga. App. 638, 271 S.E.2d 889 (1980).

Trial court did not err in not instructing the jury that the value of the items that the defendant shoplifted had to exceed $300 as the value of the items taken was only relevant to distinguish between felony and misdemeanor shoplifting; no such distinction needed to be made in the defendant's case since a store manager testified without contradiction that the retail value of the two watches stolen was between $350 and $390. Reeves v. State, 261 Ga. App. 466, 582 S.E.2d 590 (2003).

Retail value or price is standard to be used in establishing value in theft by taking from retail establishment. Bryan v. State, 148 Ga. App. 428, 251 S.E.2d 338 (1978).

Sufficiency of proof of value.

- When the manager of the store from which merchandise was stolen identified photographs of the stolen merchandise at trial and disclosed the actual retail price of each of the items which had been recovered from the appellant, there was sufficient proof of value to avoid a directed verdict of acquittal. Kowalczk v. State, 195 Ga. App. 714, 394 S.E.2d 594 (1990); Moncus v. State, 229 Ga. App. 803, 495 S.E.2d 118 (1998).

When a store security agent testified that the shirts recovered from the defendant still had price tags on the shirts and that the retail prices were $92.00 and $59.50, such evidence was sufficient to prove that the value of the items exceeded $100.00. Parham v. State, 218 Ga. App. 42, 460 S.E.2d 78 (1995).

Trial court properly denied the defendant's motion for a new trial despite the defendant's claim that there was insufficient evidence to prove the identity and value of the items which defendant shoplifted as there was sufficient evidence to prove the identity and value of the items given that: (1) a store manager saw the defendant place items from the manager's store into the trunk of the defendant's car and identified the defendant in a showup identification less than 30 minutes later, after the defendant was stopped for shoplifting at a second store; (2) the manager from the first store identified a number of items that were found in the defendant's trunk as coming from the first store based on the store code markings on the items; and (3) the packages contained pricing labels. Horne v. State, 260 Ga. App. 640, 580 S.E.2d 644 (2003).

Any error in allowing the jury to consider the wholesale value of the phone stolen from the store was harmless because that amount exceeded $300. Gilliland v. State, 325 Ga. App. 854, 755 S.E.2d 249 (2014).

Alteration of price tag.

- Charge that defendant altered a price tag was not a variance with proof that defendant cut the uniform product codes (UPCs) off of boxes containing different products, taped the UPC showing a lower price on the box containing the higher priced product, and discarded the remaining UPC. Panek v. State, 226 Ga. App. 14, 485 S.E.2d 580 (1997).

Evidence was sufficient to convict the defendant of theft under O.C.G.A. § 16-8-14(a) after the defendant aided and abetted the defendant's spouse in the commission of the crime by placing items on a shopping cart for the spouse to replace the bar code symbols on the items while the defendant maintained a lookout. Toliver v. State, 257 Ga. App. 769, 572 S.E.2d 97 (2002).

Indictment for required felony punishment.

- If the state seeks felony punishment pursuant to O.C.G.A. § 16-8-14, the accused is entitled to an indictment. Parker v. State, 170 Ga. App. 295, 316 S.E.2d 855 (1984), overruled on other grounds, Darty v. State, 188 Ga. App. 447, 373 S.E.2d 389 (1988).

Fourth offender sentence was proper when, even though the three convictions listed in the indictment actually set forth only two previous convictions for purposes of imposing a recidivist sentence, the defendant had notice prior to trial that the state intended to rely upon an additional conviction. There is no requirement to list the previous conviction provided the state's intent to present such evidence is made known to the defendant prior to trial. Darty v. State, 188 Ga. App. 447, 373 S.E.2d 389 (1988), disapproving Parker v. State, 170 Ga. App. 295, 316 S.E.2d 855 (1984).

Consolidation of prior indictments.

- Two prior indictments consolidated for trial and resolved on the same day by guilty pleas are not deemed to constitute only one conviction for purposes of O.C.G.A. § 16-8-4. Robertson v. State, 234 Ga. App. 189, 505 S.E.2d 849 (1998).

When separate items of theft are charged in the indictment, the state is not compelled to prove the theft of every one of such items or to prove an aggregate amount of value for items the subject of a theft. Green v. State, 177 Ga. App. 179, 338 S.E.2d 761 (1985).

Indictment not defective for not stating value of property taken.

- In shoplifting case, trial court's denial of defendant's general demurrer and motion to quash on ground that accusation was legally defective for failure to state the value of the items taken was proper since there was evidence that the property was of some value and the specific value is only relevant for distinguishing between misdemeanor and felony. Drinkard v. State, 155 Ga. App. 638, 271 S.E.2d 889 (1980).

Indictment must state prior convictions but prior convictions inadmissible.

- Although an indictment charging defendant with theft by shoplifting properly included information about defendant's prior convictions for shoplifting because defendant had to be informed that defendant's prior convictions made the charge a felony, the trial court erred by informing the jury that defendant had prior convictions for shoplifting during the phase of trial where the jury was asked to determine defendant's guilt or innocence, and the error was not harmless. White v. State, 265 Ga. App. 302, 596 S.E.2d 9 (2003).

Variance between allegation and proof.

- When the state charged that the defendant altered the price by changing the price, pursuant to O.C.G.A. § 16-8-14(a)(2), but that the evidence showed instead that the defendant interchanged price tags pursuant to O.C.G.A. § 16-8-14(a)(4), the conviction must be set aside for a fatal variance between the allegation and the proof. Nesmith v. State, 183 Ga. App. 529, 359 S.E.2d 421 (1987).

Fatal variance did not exist between the indictment and the evidence based on the indictment stating a cellphone was shoplifted whereas it was actually a tablet because the indictment adequately informed the defendant of the charge, and to the extent the indictment varied from the case, it was immaterial and did not affect the defendant's ability to defend. Leonard v. State, 326 Ga. App. 209, 756 S.E.2d 293 (2014).

Proof of value of stolen property.

- Evidence was sufficient to support a felony conviction after witnesses testified to the retail value of items shoplifted by the defendant and the total of those values exceeded the amount necessary to support a felony conviction. Scott v. State, 234 Ga. App. 378, 506 S.E.2d 880 (1998).

Defendant was properly convicted of felony theft by shoplifting because a jury was permitted to consider a security agent's testimony regarding the value of the items stolen since the agent had personal knowledge of the prices of the subject merchandise from a cash register readout. Bell v. State, 262 Ga. App. 788, 586 S.E.2d 455 (2003).

Testimony by the asset protection associate who witnessed the theft and later reviewed the store's video recording of the events, that the associate had a very clear shot of the defendant collecting the games, was able to count the number of games taken and which games were selected was sufficient to show that the value of the items taken exceeded $500, as required for a felony conviction. Turner v. State, 345 Ga. App. 894, 815 S.E.2d 219 (2018).

If property of value, conviction can be sustained.

- In a prosecution for theft, if there is any evidence that the property stolen was of some value, a conviction can be sustained. Drinkard v. State, 155 Ga. App. 638, 271 S.E.2d 889 (1980).

When the evidence was that the defendant was seen stealing sandals, that the defendant acted "fidgety," that the defendant tried to conceal in the defendant's pants both a shirt and a pair of shorts for which the defendant had no receipt, and that the defendant attempted to leave the store without paying for any of these items, the jury was authorized to conclude that the defendant stole items valued over $100 and that the defendant was guilty beyond a reasonable doubt of the offense of theft by shoplifting. Brown v. State, 236 Ga. App. 478, 512 S.E.2d 369 (1999).

Jury determines value if at issue.

- It is only if there is a factual issue as to whether the value is greater than $100.00 that the jury must determine value in order to assist the court in determining the appropriate sentence. Green v. State, 177 Ga. App. 179, 338 S.E.2d 761 (1985).

Jury determination of recidivism.

- Since recidivism is an issue only in the sentencing phase of a trial, defendant had no right to a jury determination of this issue. Gary v. State, 186 Ga. App. 231, 366 S.E.2d 833 (1988).

Effect of prior convictions.

- The 1997 statutory amendment to O.C.G.A. § 16-8-14(b)(1)(C) will be applied retroactively and, therefore, prior felony shoplifting convictions occurring either before or after the effective date of the amendment (April 29, 1997) will support an increase in punishment. Lynn v. State, 236 Ga. App. 600, 512 S.E.2d 695 (1999).

Because the state: (1) conceded that the trial court erred by using two felony and three misdemeanor shoplifting convictions; (2) failed to meet the state's burden of proving that the defendant was represented by counsel before pleading guilty to those crimes; and (3) failed to show that the defendant was represented by counsel or waived such a right, on three previous misdemeanor shoplifting convictions, the trial court should not have used the convictions to enhance the defendant's shoplifting conviction into a felony; moreover, the defendant overcame presumption of regularity of the trial court's decision as two of the underlying felonies were the same ones which were ruled inadmissible. Simmons v. State, 278 Ga. App. 372, 629 S.E.2d 86 (2006).

In an action in which the defendant was convicted of shoplifting as a felon in accordance with O.C.G.A. § 16-8-14(b)(1)(C), there was no requirement that the prior convictions upon which the conviction and sentence were based be proved beyond a reasonable doubt, as there was an exception under Apprendi for such prior convictions based upon the general principle that prior convictions were generally already proved beyond a reasonable doubt; further, there was no due process violation under U.S. Const., amend. 14 because the defendant received notice of the state's intent to use the prior convictions for sentencing and the defendant had an opportunity to challenge the convictions pursuant to former O.C.G.A. § 17-10-2(a). Redd v. State, 281 Ga. App. 272, 635 S.E.2d 870 (2006).

Because there was no language within O.C.G.A. § 16-8-14(b)(1)(c), which specifically governed fourth-time shoplifting offenders or that blocked the application of the general recidivist provisions set forth in O.C.G.A. § 17-10-7(c), the trial court's imposition of a recidivist's sentence under § 17-10-7(c), as opposed to the specific provision for shoplifting contained in O.C.G.A. § 16-8-14(b)(1)(C), was upheld. Patrick v. State, 284 Ga. App. 472, 644 S.E.2d 309 (2007).

Trial court properly sentenced the defendant as a recidivist under O.C.G.A. § 17-10-7 following a shoplifting conviction because the record of the plea proceeding in a prior case wherein the defendant pled guilty belied the claim that the defendant was not adequately advised of the right to a jury trial; thus, the trial court did not err in considering, for purposes of sentencing, that prior conviction. Foster v. State, 319 Ga. App. 815, 738 S.E.2d 651 (2013).

In applying the statute for imposition of recidivist sentencing, based on the defendant's four prior felony drug convictions, the trial court had no discretion with regard to the term of the sentence and was required to sentence the defendant to 10 years, which was the maximum sentence for theft by shoplifting. Allen v. State, 325 Ga. App. 752, 754 S.E.2d 795 (2014).

Applicability of prior convictions.

- O.C.G.A. § 16-8-14, regarding sentencing for multiple shoplifting offenses, did not apply to defendant as none of defendant's prior felony convictions involved shoplifting. Walker v. State, 268 Ga. App. 669, 602 S.E.2d 351 (2004).

Recidivist sentence improper.

- Trial court erred in sentencing the defendant as a recidivist to 10 years imprisonment under O.C.G.A. § 17-10-7 for theft by shoplifting in violation of O.C.G.A. § 16-8-14 because the defendant demonstrated that the trial court did not exercise the court's discretion to consider probating or suspending a portion of the sentence after the defendant served one year pursuant to § 16-8-14(b)(1)(C). Holland v. State, 310 Ga. App. 623, 714 S.E.2d 126 (2011).

Jury instructions on mere presence.

- Defendant was not entitled to a jury instruction on mere presence because mere presence was not recognized as a separate and discrete defense to a criminal charge; and the evidence showed that the defendant was not merely present but was the sole participant in the crime of theft by shoplifting. Allen v. State, 325 Ga. App. 752, 754 S.E.2d 795 (2014).

Shoplifting as lesser included offense of robbery by sudden snatching.

- In a prosecution for robbery by sudden snatching, defendant's requested charge on shoplifting was not a complete and accurate statement of the law and, even though due to a typographical error was properly refused by the trial court; nevertheless, circumstances in the case reasonably raised the inference that defendant committed theft by shoplifting and authorized a proper request to charge on that offense. King v. State, 214 Ga. App. 311, 447 S.E.2d 645 (1994).

Criminal attempt not included offense.

- Trial court did not err in refusing to instruct on criminal attempt as a lesser included offense of theft by shoplifting where the evidence showed that defendant concealed shirts in defendant's pants while in the store and the only issue for the jury was whether defendant had the requisite intent to shoplift; if the jury had not found such intent, it would have been required to acquit defendant. Parham v. State, 218 Ga. App. 42, 460 S.E.2d 78 (1995).

Jury charge for lesser included offense.

- Although the evidence was sufficient to support a verdict of felony theft by shoplifting under O.C.G.A. § 16-8-14(a)(1), there was evidence from which the jury could have found the defendant guilty of misdemeanor theft by shoplifting under O.C.G.A. § 16-8-14(b)(2); therefore, the trial court should have given a jury charge on the lesser-included offense. Kemp v. State, 271 Ga. App. 654, 610 S.E.2d 623 (2005).

Severance of charges.

- Severance of charges of theft by shoplifting and giving a false name was not required since the false name charge arose from the circumstances of defendant's arrest for shoplifting. Agony v. State, 226 Ga. App. 330, 486 S.E.2d 625 (1997).

Evidence sufficient to support conviction. See Kelly v. State, 189 Ga. App. 67, 375 S.E.2d 81, cert. denied, 189 Ga. App. 912, 375 S.E.2d 53 (1988); Davis v. State, 192 Ga. App. 47, 383 S.E.2d 615 (1989); Foster v. State, 192 Ga. App. 720, 386 S.E.2d 383 (1989); Allen v. State, 197 Ga. App. 3, 397 S.E.2d 472 (1990); Maddox v. State, 210 Ga. App. 526, 436 S.E.2d 730 (1993); Whitt v. State, 215 Ga. App. 704, 452 S.E.2d 125 (1994); Parham v. State, 218 Ga. App. 42, 460 S.E.2d 78 (1995); Burden v. State, 226 Ga. App. 103, 485 S.E.2d 228 (1997); Agony v. State, 226 Ga. App. 330, 486 S.E.2d 625 (1997); Brown v. State, 228 Ga. App. 281, 491 S.E.2d 488 (1997); Tanner v. State, 230 Ga. App. 77, 495 S.E.2d 315 (1998); Veasey v. State, 244 Ga. App. 102, 534 S.E.2d 129 (2000); Stewart v. State, 243 Ga. App. 860, 534 S.E.2d 544 (2000).

Evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of two counts of shoplifting. Singleton v. State, 231 Ga. App. 694, 500 S.E.2d 411 (1998).

Defendant was not entitled to a directed verdict on the shoplifting charge against defendant and the evidence supported a conviction on that charge as the evidence showed that the shirt that defendant allegedly took without paying for it was the same shirt that fell out of defendant's purse as defendant ran from the store after being confronted by a police officer working off-duty as a store security guard, that the officer saw defendant take it outside the store without paying for it, that the shirt still had the store tag on it even outside the store, and that defendant fled when the officer approached defendant. Frayall v. State, 259 Ga. App. 286, 576 S.E.2d 654 (2003).

Defendant's conviction of felony theft by shoplifting, O.C.G.A. § 16-8-14(a)(1) and (b)(2), was supported by sufficient evidence, as eyewitness testimony, a videotape showing defendant in the act of stealing cigarettes with a value of over $650, and defendant's attempt to flee from police when confronted were sufficient to support the conviction. Thomas v. State, 260 Ga. App. 718, 580 S.E.2d 665 (2003).

Store employee's testimony that the employee saw defendant walk out of the store with merchandise without paying for it, along with similar transaction evidence that defendant had engaged in two previous shoplifting incidents, was sufficient to show that defendant was guilty beyond a reasonable doubt of committing the crime of shoplifting. Bradford v. State, 261 Ga. App. 621, 583 S.E.2d 484 (2003).

Evidence that defendant stole 10 digital versatile discs (DVDs) from a video store was sufficient to sustain defendant's conviction for theft by shoplifting as two eyewitnesses identified defendant as the perpetrator. Sneed v. State, 267 Ga. App. 640, 600 S.E.2d 720 (2004).

Testimony of a store's loss prevention employee as to the ownership and value of coats stolen by the defendant, and testimony by the employee that the employee saw the defendant take the coats, place the coats in a bag, and flee from the store was sufficient to support a theft by shoplifting conviction. Lanier v. State, 269 Ga. App. 284, 603 S.E.2d 772 (2004).

Because a co-manager of a grocery store saw the defendant, who was pushing a shopping cart, take a package of ham hocks and some tomatoes and place those items in the defendant's purse, and when the defendant approached the checkout counter, the co-manager confronted the defendant and the defendant retreated into the store and discarded the two items on a display, the evidence was sufficient to support a shoplifting conviction; the question of whether the defendant's placement of the goods in the purse showed an intent to commit theft by shoplifting was one for the jury and the conviction was affirmed. Taylor v. State, 270 Ga. App. 637, 607 S.E.2d 163 (2004), overruled on other grounds, Miller v. State, 285 Ga. 285, 676 S.E.2d 173 (2009).

Evidence was sufficient to support the defendant's conviction for shoplifting under O.C.G.A. § 16-8-14, and the state was not required under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6) to present evidence excluding every other reasonable hypothesis except the defendant's guilt since the state's case was based, not on circumstantial evidence, but on the direct testimony of an eyewitness to the shoplifting. Fitzpatrick v. State, 271 Ga. App. 804, 611 S.E.2d 95 (2005).

There was sufficient evidence to support the jury's verdict finding the defendant guilty of aiding and abetting in felony shoplifting, in violation of O.C.G.A. §§ 16-2-20(b)(3) and16-8-14(a)(1), because employees in a store were alerted to a shoplifting in progress, and the employees followed the alleged shoplifter out to a car, which the defendant got into and drove away; the defendant was positively identified by an employee who was on the driver's side of the car, the owner of that car had loaned the car to the defendant and the defendant never returned the car, and the defendant simply contended that the car had been stolen and that the defendant did not report the theft because the defendant intended to get the car back. Patterson v. State, 272 Ga. App. 675, 613 S.E.2d 200 (2005).

As the evidence showed that the defendant was in the lobby of a store when the alarm was triggered, that the defendant ran, that the defendant was apprehended, that a bag from the store was recovered, and that the bag contained a number of items from the store but no receipt, this was sufficient to authorize the defendant's conviction for shoplifting. Smith v. State, 275 Ga. App. 60, 619 S.E.2d 694 (2005).

Evidence supported the defendant's conviction for shoplifting because the defendant was observed concealing boxes of cold medication in a jacket. Rochefort v. State, 279 Ga. 738, 620 S.E.2d 803 (2005).

Defendant's act of concealing liquor bottles in the defendant's pants, with no intent to pay for the bottles, despite the fact that the defendant put the bottles back on the shelf before leaving the store, was sufficient to support a conviction. Simmons v. State, 278 Ga. App. 372, 629 S.E.2d 86 (2006).

Evidence was sufficient to support the defendant's convictions on three counts of shoplifting after eyewitness testimony that the defendant had concealed cologne bottles under the defendant's shirt at a drugstore and had walked out of a grocery store carrying items that had not been paid for supported two of the counts; also, testimony that video games had been taken from a video store without being purchased, and that the defendant had the games on the defendant's person about 20 minutes after leaving the video store and at the time of the defendant's apprehension for shoplifting at the drug store was sufficient circumstantial evidence to exclude every reasonable hypothesis of the defendant's innocence under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6). Crosby v. State, 287 Ga. App. 109, 650 S.E.2d 775 (2007).

Direct evidence from a loss prevention employee that the employee observed the defendant remove an item from a store shelf, place the item in the defendant's pocket, and then leave a store without presenting the item to a cashier provided sufficient evidence to support the defendant's shoplifting conviction beyond a reasonable doubt. Walton v. State, 291 Ga. App. 736, 662 S.E.2d 820 (2008).

Defendant's shoplifting conviction under O.C.G.A. § 16-8-14(a)(1) was supported by evidence that the defendant and the defendant's accomplice took a cart with merchandise into a restricted area, lied about their purpose of being in the area, surveyed various emergency exits from the store, abandoned the merchandise when an emergency exit jammed, and lacked any means for paying for the merchandise. Alford v. State, 292 Ga. App. 514, 664 S.E.2d 870 (2008).

Evidence supported the defendant's conviction for felony theft by shoplifting. A supervisor in a store stopped the defendant as the defendant tried to push a cart full of goods through a door reserved for incoming customers; the defendant could not produce a receipt; and the supervisor brought the cart to the service desk, after which the defendant left the store and was arrested. Robinson v. State, 293 Ga. App. 238, 666 S.E.2d 615 (2008).

Sufficient evidence existed to find the defendant guilty of shoplifting in violation of O.C.G.A. § 16-8-14 because the defendant knowingly agreed to act, and did act, as a getaway driver to facilitate the defendant's child's commission of theft by shoplifting; specifically, when the defendant and the child entered a store, the defendant stopped directly in front of the store owner and asked the owner questions in an attempt to distract the owner while the child hid products on the child's person. Wester v. State, 294 Ga. App. 263, 668 S.E.2d 862 (2008).

Because the defendant paid for some items in the defendant's shopping bags but not others, and put fake barcode labels on some items so that the items would ring up for less than the items actually were priced, the evidence that the value of the unpaid items totaled over $300 was sufficient to find the defendant guilty of theft by shoplifting, a violation of O.C.G.A. § 16-8-14. Raszeja v. State, 298 Ga. App. 713, 680 S.E.2d 690 (2009).

Evidence was sufficient to support the defendant's conviction for theft by shoplifting because the undisputed direct evidence was that the defendant selected five pieces of children's clothing while shopping in a store, defendant was observed as defendant secreted two such items inside the front of defendant's pants, and on being confronted by a store employee as the defendant left the store, the defendant ran, discarding the clothing the defendant had hidden in the defendant's pants in the store's parking lot. Jackson v. State, 303 Ga. App. 149, 692 S.E.2d 758 (2010).

Evidence was sufficient to prove beyond a reasonable doubt that a juvenile committed theft by shoplifting in violation of O.C.G.A. § 16-8-14(a)(1) because: (1) a security guard at a department store was watching customers via the store's closed circuit television system when the guard saw the juvenile select a hat from the merchandise and put the hat down the juvenile's pants; (2) within less than a minute, the guard arrived on the sales floor and watched the juvenile leave the store; (3) the guard followed the juvenile out the door and apprehended the juvenile: and (4) although the juvenile did not have the hat on the juvenile's person, the juvenile told the guard that the juvenile had taken the hat out of the juvenile's pants and put the hat back. In the Interest of J. C., 308 Ga. App. 336, 708 S.E.2d 1 (2011).

Trial court did not err in denying the codefendant's motion for directed verdict as to the codefendant's conviction for felony theft by shoplifting because in addition to an accomplice's testimony, and the testimony from a store employee that the retrieved items were valued at more than $400, the codefendant's furtive behavior observed by a deputy in the store and the act of tossing clothing from the passenger window of a car were all evidence from which a jury could reasonably infer the codefendant's guilt. Dixson v. State, 313 Ga. App. 379, 721 S.E.2d 555 (2011).

Trial court did not err in denying the codefendant's motion for directed verdict as to the codefendant's conviction for misdemeanor theft by shoplifting because no corroboration of accomplice testimony was necessary to support a misdemeanor conviction. Dixson v. State, 313 Ga. App. 379, 721 S.E.2d 555 (2011).

Evidence that the defendant made a false statement that the merchandise had been paid for and attempted to obtain a refund or merchandise voucher was sufficient to support the defendant's conviction for theft by shoplifting; the jury was authorized to disbelieve testimony that the defendant was unaware that the gift card reflected a value greater than that of the rackets actually purchased. Grady v. State, 319 Ga. App. 894, 743 S.E.2d 22 (2013).

Evidence was sufficient to defeat the defendant's motion for a directed verdict on the felony shoplifting charge as the state introduced circumstantial evidence that the defendant took possession of the phone by removing it from the display and placed it in defendant's pocket before leaving the store and the phone was missing from the store until it was apparently left there by another person around the time the defendant was scheduled to meet with police. Gilliland v. State, 325 Ga. App. 854, 755 S.E.2d 249 (2014).

Evidence was sufficient to sustain the defendant's conviction for theft by shoplifting because a person was observed on the store video monitoring system putting several items in a bag; the person then walked out of the store without paying for the items; when told to stop the person, identified as the defendant, fled toward a wood line; and, when apprehended, the defendant was in possession of a store bag containing several items from the store with price tags attached and no receipt. Allen v. State, 325 Ga. App. 752, 754 S.E.2d 795 (2014).

Sufficient evidence supported the defendant's convictions for aggravated assault with a knife and theft by shoplifting based on the testimony of the loss prevention officer, who witnessed the defendant take the watch, and the testimony of both the loss prevention officer and the store manager, who indicated that the defendant had a knife. Broom v. State, 331 Ga. App. 564, 769 S.E.2d 400 (2015), cert. denied, No. S15C1173, 2015 Ga. LEXIS 520 (Ga. 2015).

Evidence that the defendant was seen hiding items in a mulch bag and only paying for the mulch, the defendant admitted to an asset protection specialist that the defendant did not pay for the items, and the total price of the goods found was $436.80, was sufficient to support the defendant's conviction for felony theft by shoplifting. Lockridge v. State, 335 Ga. App. 611, 782 S.E.2d 674 (2016).

Determination of fourth-offense felony.

- O.C.G.A. § 16-8-14 does not preclude consideration of a foreign shoplifting conviction - whether misdemeanor or felony - when determining whether a current Georgia shoplifting charge is a fourth-offense felony. State v. Sterling, 244 Ga. App. 328, 535 S.E.2d 329 (2000).

Trial court erred in failing to exercise the sentencing discretion provided under O.C.G.A. § 16-8-14 for the shoplifting conviction because it erroneously concluded it was required to impose the maximum sentence of 10 years with no eligibility for parole because nothing in the specific sentencing scheme in O.C.G.A. § 16-8-14(b)(1)(C) permitted application of conflicting provisions in the general recidivist sentencing scheme in O.C.G.A. § 17-10-7(a), instead the specific scheme controlled. Williams v. State, 261 Ga. App. 176, 582 S.E.2d 141 (2003).

No bad faith in discovery.

- Theft by shoplifting conviction was upheld on appeal, despite the defendant's claim that the state violated the reciprocal discovery requirements of the Georgia Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq., as the defendant conceded at trial that the state did not act in bad faith, and failed to request a continuance, but instead, communicated a readiness for trial to both the court and the prosecutor. Brown v. State, 281 Ga. App. 557, 636 S.E.2d 717 (2006).

Evidence insufficient to support conviction.

- Evidence was insufficient to support the defendant juvenile's adjudication of delinquency for shoplifting because the defendant did not take any overt action that could have evinced an intent to appropriate the item, such as concealing the item, attempting to conceal the item, carrying the item around the store, representing that the defendant had already paid for the item, or attempting to leave the store with the item. In the Interest of E. B., 343 Ga. App. 823, 806 S.E.2d 272 (2017).

Uncounseled prior convictions could not be used to enhance offenses.

- Defendant's previous uncounseled theft by shoplifting convictions could not be used to enhance the misdemeanor offense of shoplifting to that of felony shoplifting and the accusation was quashed because the defendant contended that the defendant had not been represented by counsel in any of the shoplifting convictions relied upon for the felony shoplifting charge and that the defendant did not knowingly and intelligently waive the defendant's right to counsel; the defendant presented evidence that the defendant's prior guilty pleas had not been entered into knowingly and voluntarily; and the state did not meet the state's burden of proving that the defendant's prior guilty pleas were informed and voluntary. State v. Athey, 352 Ga. App. 419, 834 S.E.2d 913 (2019).

Sentence not excessive.

- Ten-year sentence for a fourth conviction of shoplifting was not excessive. Gary v. State, 234 Ga. App. 506, 507 S.E.2d 242 (1998).

Specific recidivist sentence.

- Defendant was wrongfully sentenced as a recidivist under the state's general recidivist statute, O.C.G.A. § 17-10-7(c), rather than the specific recidivist statute applicable to shoplifting offenses, O.C.G.A. § 16-8-14(b)(1)(C), because the record showed that the defendant had three prior felony shoplifting convictions and one prior misdemeanor shoplifting conviction at the time of trial, but there was no evidence of felony convictions for other crimes. Wester v. State, 294 Ga. App. 263, 668 S.E.2d 862 (2008).

Conviction upheld on appeal.

- Defendant's shoplifting convictions were upheld on appeal because the defendant waived review of a claim that evidence of a prior shoplifting transaction was insufficiently similar to the offenses charged by failing to raise the same claim at trial, and an objection to the evidence during a Ga. Unif. Super. Ct. R. 31.3(B) hearing was insufficient to adequately preserve the exact claim for appellate review. Cornell v. State, 289 Ga. App. 52, 656 S.E.2d 191 (2007).

Cited in Secrist v. State, 145 Ga. App. 391, 243 S.E.2d 599 (1978); Burnett v. State, 152 Ga. App. 738, 264 S.E.2d 33 (1979); Grizzle v. State, 155 Ga. App. 91, 270 S.E.2d 311 (1980); Stillwell v. State, 161 Ga. App. 230, 288 S.E.2d 295 (1982); Sustakovitch v. State, 249 Ga. 273, 290 S.E.2d 77 (1982); Lane v. State, 170 Ga. App. 42, 316 S.E.2d 31 (1984); Jenkins v. State, 172 Ga. App. 715, 324 S.E.2d 491 (1984); City of Marietta v. Kelly, 175 Ga. App. 416, 334 S.E.2d 6 (1985); Stargell v. State, 183 Ga. App. 434, 359 S.E.2d 205 (1987); Warsham v. State, 200 Ga. App. 322, 408 S.E.2d 122 (1991); Winn-Dixie Stores, Inc. v. Nichols, 205 Ga. App. 308, 422 S.E.2d 209 (1992); Brown v. Super Disc. Mkts., Inc., 223 Ga. App. 174, 477 S.E.2d 839 (1996); Fuller v. State, 230 Ga. App. 219, 496 S.E.2d 303 (1998); Williams v. State, 244 Ga. App. 26, 535 S.E.2d 8 (2000); Wright v. State, 255 Ga. App. 119, 564 S.E.2d 522 (2002); In the Interest of Q.J.A., 255 Ga. App. 160, 564 S.E.2d 770 (2002); Hirjee v. State, 263 Ga. App. 185, 587 S.E.2d 144 (2003); Burch v. State, 289 Ga. App. 388, 657 S.E.2d 294 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprintable offense.

- O.C.G.A. § 36-32-9, which addresses the jurisdiction of cases in which a person is charged with a first or second offense of theft by shoplifting when the property taken was valued at $100.00 or less, does not require any modification in the designation of theft by shoplifting as an offense for which persons charged with a violation are to be fingerprinted. 1987 Op. Att'y Gen. No. 87-21.

RESEARCH REFERENCES

Am. Jur. 2d.

- 50 Am. Jur. 2d, Larceny, §§ 63, 123, 124.

C.J.S.

- 52B C.J.S., Larceny, §§ 16, 17.

ALR.

- What constitutes "loss from theft" within provisions of Internal Revenue Code concerning deduction of losses arising from theft, 62 A.L.R.2d 572.

Changing of price tags by patron in self-service store as criminal offense, 60 A.L.R.3d 1293.

Modern status: instruction allowing presumption or inference of guilt from possession of recently stolen property as violation of defendant's privilege against self-incrimination, 88 A.L.R.3d 1178.

Validity, construction, and effect of statutes establishing shoplifting or its equivalent as separate criminal offense, 64 A.L.R.4th 1088.

What constitutes tax-deductible theft loss under 26 USCS § 165, 98 A.L.R. Fed. 229.

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