Theft by Deception in Dekalb County

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Theft by deception is a charge that is defined in O.C.G.A. 16-8-3. Theft by deception occurs when a person “obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property”. The statute goes on to explain that a person deceives if he intentionally:

  • Creates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false
  • Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed
  • Prevents another from acquiring information pertinent to the disposition of the property involved
  • Sells or otherwise transfers or encumbers property intentionally failing to disclose a substantial and valid known lien, adverse claim, or other legal impediment to the enjoyment of the property, whether such impediment is or is not a matter of official record
  • Promises performance of services which he does not intend to perform or knows will not be performed. Evidence of failure to perform standing alone shall not be sufficient to authorize a conviction under this statute.

The potential punishment following a conviction for theft by deception depends on the value of the property that was the subject of the theft. If the value of the property was more than $24,999.99, the possible punishment is 2 to 20 years in prison. If the value of the property is $5,000.00 to $24,999.99, the possible punishment is 1 to 10 years in prison. If the value of the property was $1,500.01 to $5,000.00, the possible punishment is 1 to 5 years in prison. If a person is convicted of a third offense of theft by deception, an individual is automatically convicted of a felony and may face 1 to 5 years in custody.

As you can see, the potential punishment for theft by deception is serious. However, there are defenses!  For example, if the state cannot prove that there was intent to deceive another person, an individual cannot be convicted of theft by deception. If you are charged with theft by deception in Dekalb County, it is very important that you are represented by a lawyer experienced in handling cases like these. The lawyers at W. Scott Smith work tirelessly to zealously defend their clients. Call our office today at 404-581-0999 for a free consultation.

Theft by Deception in Gwinnett County

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Theft by deception is a charge that is defined in O.C.G.A. 16-8-3. Theft by deception occurs when a person “obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property”. The statute goes on to explain that a person deceives if he intentionally:

  • Creates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false
  • Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed
  • Prevents another from acquiring information pertinent to the disposition of the property involved
  • Sells or otherwise transfers or encumbers property intentionally failing to disclose a substantial and valid known lien, adverse claim, or other legal impediment to the enjoyment of the property, whether such impediment is or is not a matter of official record
  • Promises performance of services which he does not intend to perform or knows will not be performed. Evidence of failure to perform standing alone shall not be sufficient to authorize a conviction under this statute.

The potential punishment following a conviction for theft by deception depends on the value of the property that was the subject of the theft. If the value of the property was more than $24,999.99, the possible punishment is 2 to 20 years in prison. If the value of the property is $5,000.00 to $24,999.99, the possible punishment is 1 to 10 years in prison. If the value of the property was $1,500.01 to $5,000.00, the possible punishment is 1 to 5 years in prison. If a person is convicted of a third offense of theft by deception, an individual is automatically convicted of a felony and may face 1 to 5 years in custody.

As you can see, the potential punishment for theft by deception is serious. However, there are defenses!  For example, if the state cannot prove that there was intent to deceive another person, an individual cannot be convicted of theft by deception. If you are charged with theft by deception in Gwinnett County, it is very important that you are represented by a lawyer experienced in handling cases like these. The lawyers at W. Scott Smith work tirelessly to zealously defend their clients. Call our office today at 404-581-0999 for a free consultation.

Theft by Receiving Stolen Property in Fulton County

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A person commits the offense of theft by receiving stolen property when s/he receives, disposes of, or retains stolen property which s/he knows or should have known was stolen unless the property is received, disposed of, or retained with the intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.  OCGA § 16-8-7. Guns and cars are the most common property associated with theft by receiving stolen property charges.

In order to sustain a conviction for theft by receiving the state is required to prove beyond a reasonable doubt that the accused KNEW the property was stolen. That knowledge can be inferred (i.e. should have known) by circumstances that would be suspicious to an ordinary prudent person. For example, if you buy a brand-new Mercedes G Wagon for $5,000 and it turns out to be stolen, a jury is authorized to believe you knew it was stolen. It would be unreasonable to the average person that a brand-new car that normally costs upwards of $200,000 would be sold for $5,000. Now if we are talking about a Nissan Ultima, that $5,000 price cannot show knowledge that it was stolen because the price is reasonable. Certain damage to a vehicle, like a broken steering column or the locks being punched out, can also imply the necessary knowledge. It is much more difficult for the state to prove knowledge of a stolen gun. The Georgia appellate courts have found that purchasing a gun on the street at a reduced price or the gun being labeled “for law enforcement use” is not enough but it can be shown if the serial number has been filed off.

If you or a loved one has been charged with theft by receiving stolen property, give us a call for a free consultation.

Henry County Sexual Battery Attorney

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Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. When convicted of sexual battery against someone over 16 years old, the State of Georgia considers it a felony offense carrying one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

There are defenses to Sexual Battery in Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in Henry County or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

Child Molestation in Fulton County

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Child Molestation is a serious crime in the State of Georgia. If you are arrested in Fulton County or the City of Atlanta for child molestation, please do not make any statements to the police. It is imperative that you retain a qualified attorney immediately if you are being accused of child molestation. The Fulton County Crimes Against Women and Children Unit zealously prosecutes these cases and they are very prepared. Many allegations of child molestation are false. Even if you know the allegation of child molestation against you is made up, you still must take it very seriously and aggressively defend yourself.

If you are arrested, you will be on the 12pm calendar the following morning for First Appearance. At this hearing, the Fulton County Magistrate Judge will read the warrants to you. They then might consider bond depending on the allegations but will likely deny bond in a child molestation. You will then need to file a motion for a formal bond hearing and a preliminary hearing. These hearings take place at the Fulton County Courthouse. It is crucial to get an attorney retained to be at the First Appearance hearing at the Fulton County jail.

O.C.G.A. § 16-6-4 defines child molestation as follows:

A person commits the offense of child molestation when such person: Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the accused OR by means of electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.

Child Molestation is a specific intent crime. Whether the accused has the requisite intent when he committed the act of child molestation is up to a jury. The jury can infer the requisite intent of “arousing or satisfying sexual desires” from the commission of the act. However, proof of the accused’s actual arousal is not required. Intent can be inferred from the testimony of the victim or from the actions of the accused.

No penetration is required for child molestation. All that is required is the touching of the child’s body along with the requisite intent. It does not matter whether the child was clothed or unclothed in determining whether the act was immoral or indecent.

The indictment does not have to allege the specific details of the child molestation. It can use general language of the statute.

The punishment for child molestation is a mandatory of 5 years to 20 years in prison. If it a second conviction for child molestation then it can be life in prison or a mandatory 10 years up to 30 years in prison.

If someone is making an allegation of child molestation against you in Fulton County or the City of Atlanta, it is imperative that you do not talk to the police, do not talk to the person who is accusing you of child molestation and call us. Time is of the essence to properly investigate the allegations.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations. Our office is in Fulton County.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Behavioral Incentive Dates

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In Georgia, a person who is convicted of a felony for the first time and sentenced to straight probation, or less than 12 months imprisonment followed by probation, is entitled to receive a Behavioral Incentive Date (also known as a BID). A BID is a date that the court sets for the probation to end early, provided that the individual has successfully completed their probation and not violated any terms of their probation.

When a person is convicted of a felony for the first time or is charged with a felony and enters a plea under the First Offender Act or conditional discharge, Georgia law says that the judge must include a BID that is no more than 3 years from the date that the sentence is imposed. (O.C.G.A. § 17-10-1 (a)(1)(B)(i)). A brand-new Georgia Court of Appeals case clarifies that even when a person is convicted of their first felony and chooses not to use their First Offender, the judge must include a BID. (Smalley v. State).

What does this mean for a person facing felony charges?  This means that if you are facing felony charges and sentenced to probation, the court MUST include a BID and that BID may not be more than 3 years from the date you are sentenced. So, for example, if you are sentenced to 10 years probation for your first ever felony, the judge must include a BID date and, if you successfully complete the terms of your probation and don’t have any probation violations, your probation will end on that BID.

It is important to have an attorney who understands things like Behavioral Incentive Dates when they are negotiating with prosecutors. The lawyers at W. Scott Smith are experienced at fighting to protect their clients and ensure that clients receive the best possible outcome for their case. If you are charged with a felony in Dekalb, Fulton, Gwinnett, Clayton, Rockdale, Henry, Cobb, or Cherokee County, call the Law Office of Scott Smith today for a free consultation and to find out how you can leverage the law regarding Behavioral Incentive Dates to your advantage.

Sexual Battery in Cobb County

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If you are arrested for Sexual Battery in Cobb County, please do not make any statements to the police. You will be brought over to court the following day after your arrest and a Cobb Magistrate Court judge will consider bond.

Family members can attend the bond hearing at the Visitors Center at the Cobb County Adult Detention Center. The hearings take place at either 9am or 9pm depending on when the person is booked into the jail.

A person commits the offense of sexual battery when he intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.

How does the law define intimate parts? It is defined as the primary genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female.

The intent to do the act is a question of fact for the jury to decide.

Whether there is a conflict in the evidence of whether the victim voluntarily submitted to the contact, it is for a jury to decide that conflict in testimony.

Sexual battery does not require any sexual contact. It only requires the non-consensual, intentional physical contact with the victims’ intimate body parts.

Prior to 2021, an individual younger than 16 years old was legally incapable of consenting to sexual contact. In the case of Watson v. State, the Supreme Court construed the statute to require actual proof of the victim’s lack of consent, regardless of the victim’s age.

Sexual battery is punished as a misdemeanor of a high and aggravated nature. However, if the victim is under 16 years of age, it is punishable as a felony.

The rule of lenity does not apply between sexual battery and child molestation because child molestation requires additional proof of the defendant seeking to arouse his own sexual desires, which is not required for sexual battery. Furthermore, sexual battery requires proof of physical contact and the victims lack of consent, which are not required for the offense of child molestation.

If you are arrested for Sexual Battery in Cobb County, please give us a call at 404-581-0999.

I’m being charged as an accomplice but I didn’t do anything

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Georgia law allows someone who did not directly commit a crime to be charged with the substantive offense. Most states call it being an accomplice, Georgia calls it party to a crime. However, merely being present when a crime is being committed is not enough to sustain a conviction.  To convict someone as a party to a crime, the state must prove beyond a reasonable doubt that the person 1) intentionally causes another person to commit a crime under circumstances where that person would not be guilty in fact or because of legal incapacity; 2) Intentionally aids or abets in the commission of a crime; or 3) intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

All of that means that you actually have to do something to assist with the crime. For example, if you take a friend to the bank and while they are inside, they rob the bank. After the robbery, they get back into your car and tell you they robbed the bank. If you drive them away from the scene, you can be charged and convicted of the robbery even though you never stepped foot in the bank.

If you have been charged as a party to a crime, you need an experienced criminal defense attorney to fight for you. Give us a call at 404-581-0999 for a free case consultation.

Gwinnett County Sexual Battery Attorney

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Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. When convicted of sexual battery against someone over 16 years old, the State of Georgia considers it a felony offense carrying one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

There are defenses to Sexual Battery in Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in Gwinnett County or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

Rape Shield in Georgia

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If you are charged with Rape in the State of Georgia, it is imperative that you retain a sex crimes defense attorney immediately. There are rules in Georgia that protect the alleged victim from having her character attacked.

O.C.G.A. 24-4-412 prohibits certain evidence from being introduced at trial. This is known as the Rape Shield Statute. The evidence that is excluded from trial include, but not limited to, evidence of the alleged victim’s marital history, mode of dress, and general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.

The Rape Shield Statute contains an exception to its exclusionary rule. The past sexual behavior of the complaining witness is not admissible unless the trial court found that the past sexual behavior directly involved the participation of the defendant and found that the evidence expected to be introduced supported an inference that the defendant could have reasonably believed that the complaining witness consented to the conduct complained in the prosecution.

Do not think that if you are charged with Rape in Georgia that you can attack the alleged victim for her past sexual behavior or think that just because she was dressed a certain way that you can argue that to the jury. The laws in Georgia protect rape victims from a character assassination in Georgia.

If you want to bring in evidence that fits the exception to the Rape Shield Statute, then the defendant shall notify the court of such intent, whereupon the court shall conduct an in camera hearing to examine the accused’s evidence. At the conclusion of this hearing, if the court finds that any of the evidence introduced at the hearing is admissible or is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence, the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced.

So, if you are accused of Rape, it is important to write out a log of every interaction you have had with the alleged victim, exactly what you remember talking about with the alleged victim and any evidence or witnesses that may help you establish that you believe consent was given.

In a Rape case, your life is literally hanging in the balance. Do not think that just because you believe you had consent and just because you know it did not happen, that the case will just go away or the judge and jury will just understand your side. Once you are accused of Rape, you need to go on offense in your preparation and show that either 1) you were misidentified as the person accused of rape or 2) you had consent of the alleged victim.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

If you face charges in Georgia for Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Rape cases in Georgia. You must protect your rights and take this matter very seriously.

The statute of limitation for a prosecution of rape is 15 years.