In Davis v. State, the Georgia Court of Appeals reversed a defendant’s conviction for theft by deception in connection with the unlawful receipt of wired funds due to the State’s failure to prove venue.
Under Georgia law, venue for a theft by deception offense is proper in any county in which the defendant exercised control over the property which was the subject of the theft. The State, however, failed to prove that the defendant received or controlled the funds in the county where he was being prosecuted.
The evidence presented at trial established that G.E. received a phone call in her home in Morgan County from someone she did not know who told her that she had won a contest. The caller told her that in order to collect the prize, she would have to pay the taxes. G.E. was directed to send funds via wire transfer to several individuals, including Davis. G.E. wired funds from drugstores in Morgan County to Davis, who then collected the funds in various locations in Cobb County.
As with all allegations in an indictment, the State must prove venue beyond a reasonable doubt. In cases of theft by deception, the offense is considered to have been committed in any county where the accused exercised control over the property that is the subject of the theft.
Here, while evidence showed that G.E. wired the funds from Morgan County, there was no evidence that Davis exercised control over any of the funds in Morgan County. The State argued that it had a choice of venue – either in Morgan County, where the funds were relinquished by G.E., or in Cobb County, where Davis received the funds. The Court of Appeals rejected this argument as contrary to Georgia law.
The Court of Appeals held that the State could retry Davis in the proper venue, stating that “the failure to establish venue does not bar retrial in a court where venue is proper and proven.”
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