A common
element across all theft crimes is the act of taking, obtaining, converting, or
appropriating the property of another. But, absent this similarity, several
distinct theft crimes exist under the large umbrella of theft crimes generally,
such as: theft by taking, theft by deception, fraud, and theft by shoplifting,
robbery, and theft by conversion. This aims to explain the crime of theft by
conversion (commonly referred to as “embezzlement”), the punishment, and
defenses.
The Offense
Theft by
conversion occurs when the defendant, after lawfully receiving funds from
another under an agreement to make a specified application of them, knowingly
puts the money to his own use in violation of the agreement. O.C.G.A. §
16-8-4(a).
The statute
also contains a provision applying to government workers and officers of
financial institutions, “[w]hen, under subsection (a) of this Code section, an
officer or employee of a government or of a financial institution fails to pay
on an account, upon lawful demand, from the funds or property of another held
by him, he is presumed to have intended to convert the funds or property to his
own use.” O.C.G.A. § 16-8-4(b). This section ensures government and banking
actors will act wisely with money entrusted to them by the public.
The stated
purpose of the theft by conversion statute is to punish and deter fraudulent
conversion, not mere breaches of contract or broken promises. That being said,
the terms of the agreement are critical in determining whether an accused
converted funds of another from a directed purpose to his own use.
What
separates theft by conversion from other theft crimes is that in theft by
conversion the person accused comes into possession of the property lawfully,
whereas in other theft crimes, the person accused obtains property secretly and
unlawfully. In theft by conversion there is some form of entrustment.
Case Examples
Evidence
that defendant did not return nor continue making rental payments on two
televisions was sufficient to support determination that defendant converted
televisions to her own use; defendant violated rental agreements’ obligations
to make payments or return televisions to rental center, defendant moved
televisions to another address without center’s knowledge or consent in violation
of agreements, and center’s owner testified that each television had a retail
market value of $649.87. Williams v.
State, 328 Ga.App. 898 (2014).
Evidence
that defendant failed to return rented wood chipper to store, lied to store
regarding his address and phone number, and moved to another country and
assumed an alias after store management swore out a warrant for his arrest was
sufficient to establish that defendant acted with criminal intent, as required
to support conviction for theft by conversion. Terrell v. State, 275 Ga.App. 501 (2005).
Evidence was
insufficient to support conviction for theft by conversion, in prosecution
arising out of incident in which customer left van with defendant, a mechanic,
for repair and van was not returned; there was no evidence that mechanic drove
the van, that he cannibalized it for spare parts, or that he used it for any
other purposes, except to perform work upon it, there was no evidence that
defendant did anything to conceal the whereabouts of the van from the customer
or keep her from possessing it, there was no evidence that defendant had
anything to do with eventual disposal of van, and defendant did not attempt to
flee. Thomas v. State, 308 Ga.App.
331 (2011).
Interestingly,
the theft by conversion statute has been held unconstitutional by the Supreme
Court of Georgia. In Sherrod v. State,
280 Ga. 275 (2006), the Court held the mandatory presumption contained in
statute setting forth offense of theft by conversion of leased property that
proof that demand letter was properly sent to lessee and that property was not
returned within five days established guilt of offense, was unconstitutional,
as it subverted presumption of innocence accorded to accused persons and
invaded truth-finding task assigned solely to fact-finder.
Punishment
Whether
theft by conversion will be punished as a misdemeanor or felony depends on the
value of the money or property stolen. If the value is less than $500, the
offense will be charged as a misdemeanor. If the value exceeds $500, the
offense will be charged as a felony. Misdemeanor theft by conversion is
punishable by up to 12 months in jail and a $1,000 fine, or both. Felony theft
by conversion is punishable by no less than one year in prison and no more than
ten years imprisonment. In addition to imprisonment and fines, the court may
also impose restitution as part of the sentence.
If the
property is not returned, the court will use the following guidelines to assess
the value of the stolen goods:
- The
market value of the property, determined by obtaining a quote from a supplier
who sells property of similar character and value (the higher value of the date
the conversion occurred versus the value on the date of trial)
- Rental
charges; and
- Interest
on unpaid balances at the legal rates until the debtor pays the converted funds
Defenses
- No intent: the
State has to prove the accused person converted the property for their own use
knowingly and with fraudulent intent. If there is not such intent, the person
cannot be convicted.
- Consent: if the property owner gave the
accused person permission to convert the property for the accused person’s own
use, evidence of consent (email, text, letter) would provide strong support for
the defense.
- The property was used as intended: evidence indicating the property was used in a way
contemplated by the agreement would also strongly aid the defense of a theft by
conversion charge. There must be an action or statement showing the person
accused intended to claim or use the property as their own.
- Value: the State must prove value at
trial. If the weight of the evidence attempting to prove value, then an
essential element of the charge has not been met, and the accused person cannot
be convicted.
- Returning the property is not a defense: the fact an embezzler settled their debt or default does
not destroy the criminality of the act. McCoy
v. State, 15 Ga. 205 (1854).
Contact
Us
If you or someone you know has been
arrested and charged with theft by
conversion, contact the law firm of W. Scott Smith at 404.581.0999 for a free case evaluation. You’ll a local Atlanta attorney ready to aggressively
fight on your behalf.