2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 9 - Forgery and Fraudulent Practices
Article 3 - Illegal Use of Financial Transaction Cards
§ 16-9-31. Financial Transaction Card Theft

1. A person commits the offense of financial transaction card theft when:
   1. He takes, obtains, or withholds a financial transaction card from the person, possession, custody, or control of another without the cardholder's consent; or who, with knowledge that it has been so taken, obtained, or withheld, receives the financial transaction card with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder;
   2. He receives a financial transaction card that he knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder and he retains possession with intent to use it or sell it or to transfer it to a person other than the issuer or the cardholder;
   3. He, not being the issuer, sells a financial transaction card or buys a financial transaction card from a person other than the issuer; or
   4. He, not being the issuer, during any 12 month period receives two or more financial transaction cards in the names of persons which he has reason to know were taken or retained under circumstances which constitute a violation of paragraph (3) of subsection (a) of Code Section 16-9-33 and paragraph (3) of this subsection.
2. Taking, obtaining, or withholding a financial transaction card without consent of the cardholder or issuer is included in conduct defined in Code Section 16-8-2 as the offense of theft by taking.
3. Conviction of the offense of financial transaction card theft is punishable as provided in subsection (b) of Code Section 16-9-38.
4. When a person has in his possession or under his control two or more financial transaction cards issued in the names of persons other than members of his immediate family or without the consent of the cardholder, such possession shall be prima-facie evidence that the financial transaction cards have been obtained in violation of subsection (a) of this Code section.

(Code 1933, § 26-1705.2, enacted by Ga. L. 1969, p. 128, § 1; Code 1933, § 26-1705.1, enacted by Ga. L. 1980, p. 1083, § 1; Ga. L. 1992, p. 6, § 16.)

- For annual survey of criminal law, see 56 Mercer L. Rev. 153 (2004).

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A. § 16-9-31(d), providing that the possession of two or more financial transaction cards issued to someone other than a member of the possessor's immediate family, without the consent of the person to whom the cards were issued, is prima facie evidence that the cards were obtained as the result of the theft of financial transaction cards, creates an unconstitutional mandatory presumption shifting the burden of proof to a defendant, but it is severable from the remainder of the statute prohibiting financial transaction card theft. Mohamed v. State, 276 Ga. 706, 583 S.E.2d 9 (2003).

Severing the unconstitutional mandatory burden-shifting presumption of O.C.G.A. § 16-9-31(d) from the remainder of § 16-9-31, prohibiting financial transaction card theft, did not affect the legislative purpose of the statute, and the remainder of § 16-9-31 was to be given full effect. Mohamed v. State, 276 Ga. 706, 583 S.E.2d 9 (2003).

Defendant's conviction of financial transaction card theft was proper, because while O.C.G.A. § 16-9-31(d) had been found to unconstitutionally shift the burden of proof, the remainder of the statute was ruled to be effective, and the defendant was charged with a violation of O.C.G.A. § 16-9-31(a). Middlebrooks v. State, 277 Ga. App. 551, 627 S.E.2d 154 (2006).

- In a case in which the defendant appealed the 18-month sentence for violating 8 U.S.C. § 1326(a) and (b)(2), since the defendant's prior conviction for financial transaction card theft, in violation of O.C.G.A. § 16-9-31, was an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), the district court did not err by applying 8-level enhancement under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C). United States v. De La O-Gallegos, 663 Fed. Appx. 827 (11th Cir. 2016)(Unpublished).

Whether or not the card has been revoked when discovered in defendant's possession is not an element of the offense of card theft. Thomas v. State, 176 Ga. App. 771, 337 S.E.2d 344 (1985).

- Financial transaction card theft is not a lesser included offense of financial transaction card fraud, O.C.G.A. § 16-9-33; thus, defendant's prior conviction for the former offense did not preclude prosecution for the latter. Sword v. State, 232 Ga. App. 497, 502 S.E.2d 334 (1998).

- Venue was proper for a conviction of financial transaction card theft, O.C.G.A. § 16-9-31(a), as jurisdiction was proper in the county where the offense occurred, Ga. Const. 1983, Art. VI, Sec. II, Para. VI, and the trial was held in the country in which the defendant resided and the site where the stolen cards were found. Middlebrooks v. State, 277 Ga. App. 551, 627 S.E.2d 154 (2006).

- State failed to prove venue as to a financial transaction card theft, where defendant was charged with unlawfully "obtaining" cards in Gwinnett County, but the testimony showed that the cards were taken or obtained in a county other than Gwinnett and there was no evidence that defendant obtained the credit cards in Gwinnett County. Coursey v. State, 196 Ga. App. 135, 395 S.E.2d 574 (1990).

Showing that the defendant used the card is not necessary to establish a wrongful withholding although that showing may be sufficient to establish the offense. Thomas v. State, 176 Ga. App. 771, 337 S.E.2d 344 (1985).

An inference of guilt would not arise from unexplained possession of a credit card absent any further showing since, unlike a general theft situation, the original acquisition of the card need not be wrongful. Thomas v. State, 176 Ga. App. 771, 337 S.E.2d 344 (1985).

Fact that cardholder cancelled card after discovering its loss did not mean that state had to show issuer's lack of consent for defendant to use card, since O.C.G.A. § 16-9-31(a)(1) clearly provides that the withholding be done "without the cardholder's consent." Thomas v. State, 176 Ga. App. 771, 337 S.E.2d 344 (1985).

- State did not fail to prove that a victim's credit card was a financial transaction card as defined by O.C.G.A. § 16-9-30(5) because the trial evidence established that the card was a credit card as described under the statute, and the credit card was introduced into evidence at trial and, thus, was identifiable by the jury as a card included in the statute; the state was not required to show that a credit card was used or could have been used in order to establish the defendant's commission of the offense of financial transaction card theft because O.C.G.A. § 16-9-31(a)(1) did not distinguish between valid, revoked, or unrevoked cards in proscribing the offense. Amaechi v. State, 306 Ga. App. 333, 702 S.E.2d 680 (2010).

- Juvenile's adjudication as delinquent for theft related acts was reversed because the juvenile court applied an erroneous standard of proof by concluding that there was some evidence to find that the juvenile removed a teacher's wallet from the teacher's desk since the wallet was found in the juvenile's book bag as the proper standard was proof beyond a reasonable doubt, not the lesser and different standard of some evidence. In the Interest of A. G., 355 Ga. App. 771, 845 S.E.2d 779 (2020).

- See Alexander v. State, 186 Ga. App. 787, 368 S.E.2d 550 (1988); Wilson v. State, 212 Ga. App. 325, 441 S.E.2d 808 (1994), overruled on other grounds, Mohamed v. State, 276 Ga. 706, 583 S.E.2d 9 (2003); Edwards v. State, 216 Ga. App. 225, 453 S.E.2d 806 (1995); Johnson v. State, 246 Ga. App. 239, 539 S.E.2d 914 (2000).

Videotapes of the defendant taking the victim's purse and using the victim's credit card, the defendant's company photograph, and the ID testimony of a clerk at the store where the purse was stolen was sufficient evidence to convict the defendant for a violation of O.C.G.A. § 16-9-31. Green v. State, 223 Ga. App. 467, 477 S.E.2d 895 (1996).

- Evidence was sufficient to support defendant's convictions under O.C.G.A. §§ 16-9-31 and16-9-33(a) since defendant took a bank card from defendant's sibling that was in the sibling's ex-spouse's name, defendant checked into a hotel and used it to guarantee the room, and while at the hotel, someone attempted to use the card, but the transaction was denied. Rogers v. State, 259 Ga. App. 516, 578 S.E.2d 169 (2003).

Evidence was sufficient to sustain conviction for financial transaction card theft, where the evidence showed, inter alia, that the victim's handbag containing three credit cards was found in defendant's car and that even if the jury found that defendant's children took the handbag, defendant was aware of it, hid it, or even directed the theft. Blance v. State, 261 Ga. App. 224, 582 S.E.2d 191 (2003).

Evidence that defendant, on two different dates, approached cashiers at the same store, gave them a credit card that was falsified in that it had the account numbers from another person's account superimposed over the credit card's original numbers, that the cashiers punched in the card's numbers manually when they could not get the card to scan properly, and that defendant was able to obtain store merchandise because the sales were then approved was sufficient to support defendant's conviction for financial transaction card theft. Epps v. State, 262 Ga. App. 113, 584 S.E.2d 701 (2003).

Defendant's conviction for credit card theft was supported by the evidence where defendant was painting in the victim's house, the victim fell asleep for part of the time that defendant was working there, and when the victim woke up the victim discovered that the victim's safe had been broken into and that credit cards and other information was missing from the victim's handbag. Defendant had the credit cards and a prescription medicine of the victim's in the victim's wallet when the police examined the contents thereof. Maddox v. State, 268 Ga. App. 610, 602 S.E.2d 326 (2004).

Testimony from the victim that on the day the victim's wallet disappeared, the defendant entered the victim's business, refused assistance, looked around and then sat down at a table near the location where the victim's purse was stored, provided sufficient circumstances for a jury to conclude that the defendant took the victim's wallet from the victim's workplace and was deliberately withholding the victim's financial transaction cards in opposition to the victim's possessory rights when the defendant was apprehended in Douglas County. Leonard v. State, 281 Ga. App. 184, 635 S.E.2d 795 (2006).

Defendant's convictions on various counts of financial transaction card theft and theft by taking were upheld on appeal as sufficient evidence established that, with regard to the two victims, the defendant was the only possible person to have taken the money and/or credit cards and/or identification cards from one victim's purse and the other victim's center car console. However, one conviction for theft by taking currency was reversed on appeal as the victim who alleged that the defendant stole the victim's wallet testified that the victim never kept cash in the wallet, and the indictment specifically stated that currency was taken. Allen v. State, 293 Ga. App. 439, 667 S.E.2d 215 (2008).

Evidence was sufficient to convict the defendant as a party to the crimes of financial transaction card theft and identity fraud because the defendant obtained a financial transaction card from a victim without the victim's consent as the state introduced evidence that the individual that the defendant gave transaction cards to used both transaction cards, and the state introduced the receipts evidencing the use and attempted use of the cards; and the defendant, without authorization, possessed a victim's financial transaction card information with the intent to use the card fraudulently. Daniel v. State, 342 Ga. App. 448, 803 S.E.2d 603 (2017).

- Trial court did not err in denying the defendant's motion for a directed verdict on the charge of financial transaction card theft because the victim was in constructive possession of the victim's credit card, which was sufficient to establish the allegation set forth in the accusation; because the victim was the cardholder on the account, the victim had the authority to exercise dominion and control over the credit card that had been issued in the victim's name. Amaechi v. State, 306 Ga. App. 333, 702 S.E.2d 680 (2010).

Jury was authorized to find that the defendant acted with guilty knowledge and intent to commit credit card theft in violation of O.C.G.A. § 16-9-31(a)(1) because the evidence established that the defendant had obtained unauthorized possession of the victim's credit card, and there was circumstantial evidence from which an inference could be drawn that the defendant had knowledge that the defendant was accepting the credit card without authority and as part of an unlawful scheme; when the defendant was confronted by police officers, the defendant fled, and the defendant maintained unauthorized possession of a different credit card, along with additional items that could be used to engage in fraudulent credit transactions. Amaechi v. State, 306 Ga. App. 333, 702 S.E.2d 680 (2010).

- Defendant was properly convicted of nine counts of financial transaction card theft under O.C.G.A. § 16-9-31(a)(1), as each card was distinct and bore a different number or expiration date, and it was not error to charge the defendant with a separate count of financial transaction card theft, i.e. withholding a financial transaction card, for each card withheld. Middlebrooks v. State, 277 Ga. App. 551, 627 S.E.2d 154 (2006).

There was sufficient evidence to support a conviction for financial transaction card (FTC) theft, in violation of O.C.G.A. § 16-9-31(a)(1), where cards, bank documents, and other physical evidence were found upon execution of a search warrant at the defendant's residence, and the cards fit within the definition of a FTC, pursuant to O.C.G.A. § 16-9-30(5); at trial, the cards were introduced into evidence and the owners testified as to what type of cards they were and that the defendant and the codefendant had not been given permission to possess the cards. Brown v. State, 277 Ga. App. 514, 627 S.E.2d 136 (2006).

Because each of three financial transaction cards found in a defendant's possession was unique and each bore a different number and expiration date, the defendant's conviction on three counts of financial transaction card theft under O.C.G.A. § 16-9-31 was proper. Leonard v. State, 281 Ga. App. 184, 635 S.E.2d 795 (2006).

- When a jury charge on financial transaction card theft included the O.C.G.A. § 16-9-31(d) presumption of guilt, which had subsequently been declared unconstitutional, the charge erroneously shifted the burden of proof; thus, the defendant's conviction was reversed. Cade v. State, 264 Ga. App. 52, 589 S.E.2d 870 (2003).

- Jury instruction which stated the unconstitutional mandatory burden-shifting presumption in O.C.G.A. § 16-9-31(d) was not harmless beyond a reasonable doubt as the evidence of defendant's guilt was not overwhelming. Mohamed v. State, 276 Ga. 706, 583 S.E.2d 9 (2003).

Trial court did not err in failing to give the defendant's requested jury charge on mere presence because the defendant was not entitled to the instruction since the evidence showed that the defendant was an active participant in the financial transaction card theft. Amaechi v. State, 306 Ga. App. 333, 702 S.E.2d 680 (2010).

Cited in Rozier v. State, 259 Ga. 399, 383 S.E.2d 113 (1989).

RESEARCH REFERENCES

Am. Jur. 2d.

- 32 Am. Jur. 2d, False Pretenses, §§ 11, 23. 37 Am. Jur. 2d, Fraud and Deceit, § 1 et seq.

- 35 C.J.S, False Pretenses, § 13.

- May offense of obtaining money or property by false pretenses or confidence game be predicated on obtaining loan or renewal thereof, 52 A.L.R. 1167.

When statute of limitations begins to run against criminal prosecution for embezzlement, fraud, false pretenses, or similar crimes, 77 A.L.R.3d 689.

Validity, construction, and application of state statutes relating to offense of identity theft, 125 A.L.R.5th 537.

Criminal liability for unauthorized use of credit card under state credit card statutes, 68 A.L.R.6th 527.