GEORGIA THEFT AND FRAUD CHARGES

There are many different types of theft and fraud charges in Georgia. A person commits a theft offense when they take or keep property that does not belong to them. Whether a theft crime is considered a misdemeanor or felony depends on the value of the property stolen.

On the other hand, fraud crimes generally involve the use of some fake or altered paperwork or identifying information used or intended to be used to gain something of value. Some of the most common theft and fraud crimes are discussed below.

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In a broad sense, theft charges in Georgia involve taking or having possession of someone else’s personal property without their permission. There are over a dozen different types of theft crimes in Georgia. A few of the most common are below.

1. Theft by Taking (C.G.A. § 16-8-2): As the name suggests, theft by taking occurs when a person takes someone else’s personal property with the intention of depriving the owner of the property. Theft by taking can also occur if a person has lawful possession of another’s property, but then unlawfully keeps the property.
2. Theft by Deception (C.G.A. § 16-8-3): If a person intentionally obtains someone else’s property by being deceitful or dishonest to the owner or through artful practice, that person may be charged with theft by deception (commonly referred to as swindling). A person deceives if he intentionally does any of the following:
   1. Creates or confirms another’s false impression about an existing fact or past event knowing it is false;
   2. Fails to correct a false impression of a fact or event which he previously created or confirmed;
   3. Prevents someone else from obtaining information related to the disposition of the property;
   4. Sells or transfers property and intentionally fails to disclose that there may be a valid lien or third party claim to the property; or
   5. Promises performance of a service which, at the time of the promise, he does not intend to perform or knows will not be performed.

However, if the false impression or information have no financial impact or significance or the exaggerated statements are unlikely to deceive ordinary people, such statements will not be considered “deceitful means” or “artful practice” for purposes of proving theft by deception.

3. Theft by Conversion (C.G.A. § 16-8-4): If a person has legally obtained someone else’s funds or property and is under a contractual or legal obligation to handle the funds or property in a specified way but instead converts or uses the funds or property for their own use, they may be charged with theft by conversion (commonly known as embezzlement). This is commonly seen in the rental or lease of personal property. For example, if you rent a car from a car rental company for 1 week and fail to return it or do not pay an additional fee to keep it longer at the end of that week, the car rental company may file a police report and have you arrested for theft by conversion.
4. Theft of Services (C.G.A. § 16-8-5): A person commits theft of services when he knowingly obtains services, accommodations, entertainment, or the use of personal property that is only available for compensation through deception and with the intent to avoid payment. An intent to avoid payment can be shown if a person knowingly provided false information in a written contract, used a false ID, wrote a bad check, returned property to a different location than agreed upon without telling the owner, etc.
5. Theft of Lost or Mislaid Property (C.G.A. § 16-8-6): – A person commits the offense of theft of lost or mislaid property where he comes into possession of property that he knows or learns is the lost property of another person and appropriates it to his own use without first taking reasonable measures to find and return the property to its true owner.
6. Theft by Receiving Stolen Property (C.G.A. § 16-8-7): – If a person receives, gets rid of, or keeps property that he knows or should know was stolen, he may be charged with theft by receiving.

Punishment for any of the above crimes depends on the dollar value of the thing stolen. If the property was worth $25,000.00 or more, the accused will be punished for a felony by imprisonment for 2 to 20 years. If the property was worth at least $5,000.00 but less than $25,000.00, the accused will be punished by imprisonment for 1 to 10 years and, in the discretion of the judge, for a misdemeanor or felony. If the property was worth at least $1,500.01 but less than $5,000.00, the accused will be by imprisonment for 1 to 5 years and, in the discretion of the judge, for a misdemeanor or felony.

Fraud charges in Georgia generally involve using dishonesty, a lie, or deception to gain some type of benefit such as money, property, or something else of value. Like theft crimes, there are many different types of fraud-related crimes in Georgia. A few of the most common are forgery, identity fraud, and aggravated identity fraud.

There are several different degrees of forgery under Georgia law (O.C.G.A. § 16-9-1), and each require separate elements of proof. First, second, and third degree forgery are all felony offenses.

A person may be charged with forgery in the first degree when he or she knowingly makes, alters, or possesses a piece of writing in a fictitious name, a writing that has been altered, or one that was allegedly made by another person at a different time with different provisions and delivers that writing to another person with intent to defraud. The writing at issue can be anything except for a check. If convicted, a person may be sentenced to imprisonment for 1 to 15 years.

A person may be charged with forgery in the second degree when he or she knowingly makes, alters, or possesses a piece of writing in a fictitious name, a writing that has been altered, or one that allegedly was made by another person at a different time with different provisions with intent to defraud. The writing at issue can be anything except for a check. The different between first and second degree forgery is whether the writing was relayed or delivered to another person. Second degree forgery does not require that the altered writing be given to another. If convicted, a person may be sentenced to imprisonment for 1 to 5 years.

A person commits the offense of forgery in the third degree when, with the intent to defraud, he or she knowingly makes, alters, possesses, or delivers any check for $1,500.00 or more or 10 or more checks written without a specified amount in a fake name or in a way that the check(s) indicates it was made by another person, at another time, with different provisions, or by authority of someone who did not actually give permission. If convicted, a person may be sentenced to imprisonment for 1 to 5 years.

A person may be charged with identity fraud (O.C.G.A. § 16-9-121) if he or she does any of the following willfully and fraudulently:

• Uses or possesses with intent to fraudulently use a person’s identifying information, such as name, date of birth, social security number, etc., without that person’s consent;
• Uses identifying information of an individual under 18 years old who he or she has custodial authority over, such as a parent;
• Uses or possesses with intent to fraudulently use a dead person’s identifying information;
• Creates, uses, or possesses with intent to fraudulently use any fake identifying information of a fictitious person with intent to use the fake identification to commit a crime or defraud another person; or
• Creates, uses, or possesses with intent to fraudulently use any counterfeit identifying information belonging to a real person with intent to use their identification information to commit a crime or defraud another person without the person’s consent.

It is also a crime for a person to accept fraudulent identifying information that he or she knows is fraudulent, stolen, counterfeit, or fictitious. If convicted of identity fraud, a person faces 1 to 10 years imprisonment, up to a $100,000.00 fine, or both. If it is the person’s second or consecutive conviction for identity fraud, the penalty is increased to 3 to 15 years imprisonment, up to a $250,000.00 fine, or both.

O.C.G.A. § 16-9-121 does not apply to a person under the age of 21 who uses a fraudulent, counterfeit, or other false ID card to get into a business (such as a bar) or to purchase items (such as alcohol) they are not of legal age to purchase or enter.

A person may be charged with aggravated identity fraud (O.C.G.A. § 16-9-121.1) if he or she willfully and fraudulently uses any counterfeit or fictitious identifying information belonging to a real, fictitious, or deceased person with intent to use that information for the purpose of obtaining employment. If convicted of aggravated identity theft, a person may be sentenced to 1 to 15 years in prison, a maximum fine of $250,000.00, or both. Also, the sentence will run consecutively to any other sentence the convicted has received. This means that the sentence for aggravated identity theft will be “stacked” on top of any other sentence imposed for a different charge. It will not run concurrently or at the same time as the other charge, which is more common in most cases. For example, you are convicted of one count of theft by receiving and sentenced to 2 years in prison. You are also convicted of one count of aggravated identity theft and sentenced to 1 year in prison. The 1 year for aggravated identity theft will run consecutively to the 2 years for theft by receiving for a total of 3 years to serve.

There are several defenses for those charged with theft crimes. Some common defenses include:

1. The accused had permission. If the accused person can prove that they had the property owner’s permission to use, possess, or take the property, they cannot be convicted for theft by taking.
2. Deceptive acts were not reasonably believable. In a theft by deception case, if the accused can prove that no reasonable person would have believed or relied on the false or deceiving information used to illegally obtain the property, they cannot be convicted.
3. If it is known when and where the property was taken and the accused can prove they were nowhere near the location where the theft occurred, they will have a complete defense to theft charges.
4. Reasonable steps were taken to find property owner. A key defense in a theft of lost property case is whether the accused took reasonable steps to locate the true owner before deciding to keep the property for themselves. For example, a woman’s Rolex watch fell off while running through a neighborhood park and you find it on the ground an hour later while also running in the park. You must take steps to try to find the true owner such as posting and sharing on Facebook about when and where you found it and putting up flyers in the park with your contact information or reporting it to police. If you do that and no one claims it, you cannot be charged with theft of lost property.
5. There is an agreement to delay payment or payment is made within two business days. This defense is only available for those charged with theft by taking, theft by deception, theft by conversion, and theft of services. If there is an agreement between the owner of the property and the accused to delay payment for the property or service, one cannot be convicted. Even if there is no agreement, a person cannot be convicted if they make full payment within two business days after returning the property or obtaining the services.

A couple of defenses to forgery and identity fraud charges include:

1. There was no intent to defraud. In a forgery case, even if someone possesses a document or check that they have knowingly altered, if they do not use or intend to use it in a way that would defraud another person, they cannot be convicted of forgery. In an identity fraud case, mere possession of an identity in another person’s name does not mean the person has committed identity fraud. It must be actually used or intended to be used in a fraudulent way.
2. The accused had permission. Where the accused has the permission to alter a document by the person who drafted it or who it belongs to, they have not committed forgery. The same is true if the accused signs a document with another person’s name if they had that person’s consent. Similarly, in an identity fraud case, if the accused uses someone else’s personal information with that person’s permission, no crime has been committed.

The information provided above is a very general summary of Georgia law on theft and fraud charges at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult a Georgia criminal defense lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all state and federal courts in Georgia.