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Defenses to Theft Charges in Georgia


An affirmative defense is something the accused, in a criminal case, must claim and present some evidence of. By presenting some evidence of that affirmative defense, the judge, at the conclusion of the trial, then instructs the jury as to that particular law or statute. Your criminal defense attorney then has the opportunity to argue that law to the jury in his or her closing arguments.


Theft charges have affirmative defenses. One such affirmative defense is O.C.G.A. §16-8-10. This is known as “Claim of Right” and is an affirmative defense to Theft by Taking, Theft by Conversion, Theft of Services, Avoiding Payment for Rental Property, Theft of Lost/Mislaid Property, and Theft by Receiving Stolen Property.


First, the accused can claim that he or she: “(1) Was unaware that the property or service was that of another;”


This is a very fact-specific affirmative defense and the accused must obviously have a straight-face reason for believing this. For example, the accused might think a particular item belongs to them based on physical characteristics. Obviously, the taking of the item would then be an honest mistake.


Next, the accused can claim that he or she: “(2) Acted under an honest claim of right to the property or service involved or under a right to acquire or dispose of it as he did;”


This, again would be very fact-specific but would probably come up most frequently in situations where there was an honest misunderstanding. For example, if the accused believed he/she had permission to utilize the neighbor’s lawnmower. Or, if the accused believed he/she had permission to haul away what appeared to be garbage on the neighbor’s curb.


Finally, the accused may claim that he/she: “(3) Took property or service exposed for sale intending to purchase and pay for it promptly or reasonably believing that the owner, if present, would have consented.”


Again, this is highly fact-specific. The accused would have to put forth some evidence to suggest that whatever he/she took, it was out, in the open and intended for sale. Furthermore, at the time it was taken he/she was unable to pay for it for some factually believable reason. But that, under the circumstances, it was reasonable to believe the owner would accept payment as soon as possible.


It should be reiterated here that an affirmative defense does not somehow “win” your case. It is not a trump card. It is merely evidence and argument in your favor. It is a legally cognizable excuse for your actions. A good affirmative defense puts some pressure on the prosecution to offer a favorable plea agreement and, in some circumstances, to dismiss the case entirely.


If you think you, or someone you know, might be charged with one of the theft offenses laid out above, you should familiarize yourself with the affirmative defenses of O.C.G.A. §16-8-10 prior to speaking to the police. Should you choose to speak to the police, and you believe O.C.G.A. §16-8-10 applies, you will want to emphasize the facts which lead you to believe so.


If you have any additional questions, you can reach an Atlanta-based theft defense attorney at jason@carnellfirm.com or call me at 770-729-4809.

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