☢ test - Í

establish [knowledge that the property was stolen]. [Cit.] While it was established at appellant's trial that the weapon used by appellant on January 1, 2008, had been stolen from the gun's owner 29 months earlier , there was no evidence from which a rational trier of fact could conclude that appellant knew or should have known the gun was stolen. Accordingly, appellant's conviction for theft by receiving must be reversed.” Marriott v. State, 320 Ga.App. 58, 739 S.E.2d 68 (March 1, 2013). Convictions for theft by receiving and theft by deception affirmed. 1. Defendant could be convicted of theft by receiving where evidence suggested, but didn’t conclusively show, that defendant took the items from victim. “‘An essential element of the crime of theft by receiving is that the goods [be] stolen by some person other than the accused.’ (Citations and punctuation omitted.) Thomas v. State, 261 Ga. 854, 855(1) (413 S.E.2d 196) (1992). Thus, if at trial there is presented ‘direct and uncontested evidence [that] identifies the defendant as the original thief, the defendant cannot be convicted of theft by receiving.’ (Punctuation and footnote omitted.) Fields v. State, 310 Ga.App. 455, 456–457(1) (714 S.E.2d 45) (2011). … A conviction for theft by receiving will not be overturned, however, where, as here, neither party offers conclusive evidence to establish the defendant's identity as the thief and instead there is only ‘circumstantial evidence from which guilt of either theft by taking or receiving could be inferred.’ Duke v. State, 153 Ga.App. 204–205 (264 S.E.2d 721) (1980).” “While [the evidence here] may well have sufficed to sustain a conviction for theft by taking, it did not demand her conviction for that crime. Indeed, the fact that the jury acquitted Marriott of the one count of burglary and thirteen counts of theft by taking with which she was charged shows that it had doubts about her identity as the person who stole the guns.” 2. No reversal required by jury instructions. Defendant was charged with both theft by receiving and theft by taking of the same items – guns from her parents’ home. Defendant asserts error in failing to instruct jury that they couldn’t convict her of both theft by receiving and theft by deception of same items. “We agree with Marriott that, under Georgia law, where a defendant has been charged with both theft by taking and theft by receiving, and the evidence would support a conviction for either, the jury should be charged ‘that it can convict of either ..., but not both.’ Thomas v. State, 261 Ga. 854, 856(2) (413 S.E.2d 196) (1992). See also Ingram v. State, 268 Ga.App. 149, 152(5) (601 S.E.2d 736) (2004). In light of the evidence in this case, therefore, the court should have so instructed the jury. Given that the jury acquitted Marriott of all thirteen counts of theft by taking, however, we cannot conclude that the trial court's failure in this regard constitutes harmful, much less plain, error. In other words, we find it highly unlikely that the erroneous jury charge affected the outcome of Marriott's trial. See Williams v. State, 300 Ga.App. 839, 844(3)(a) (686 S.E.2d 446) (2009) (an erroneous jury charge is harmless where ‘it is highly probable that it did not contribute to the verdict’). Compare Thomas, 261 Ga. at 855 (overturning defendant's conviction where trial court failed to charge the jury that he could not be convicted of both theft by taking and theft by receiving, and the jury found him guilty of both).” Gillis v. State, 315 Ga.App. 803, 728 S.E.2d 324 (May 7, 2012). Conviction for theft by receiving affirmed; evidence was sufficient to allow finding that defendant “knew or should have known that the four-wheeler had been stolen.” “Specifically, there was evidence that Gillis bought the four-wheeler in the rear of a motel parking lot and paid in part in drugs. Moreover, there was evidence that the four-wheeler was new when it was stolen and that Gillis was aware of the vehicle's fair market value based on the paperwork he received from Dunlap, yet paid for the vehicle at a price grossly less than its real value. There also was evidence that Dunlap provided Gillis with paperwork indicating that the vehicle in fact was owned by a third party that had purchased it earlier that same day.” Citing Brown (February 13, 2004), below; “ Barfield v. State, 149 Ga.App. 166, 167(3), 253 S.E.2d 781 (1979) (evidence that property was marked with name of third party authorized jury to find that defendant had notice that the property was of ‘questionable origin’ and belonged to someone else).” Reese v. State, 313 Ga.App. 746, 722 S.E.2d 441 (January 27, 2012). Theft by receiving and related convictions affirmed; evidence sufficed to show knowledge that the items were stolen: “the evidence showed that Reese possessed a cell phone traced to someone else, a debit card with an unrelated woman's name on it, and assorted women's jewelry stuffed into his pockets. He possessed these items while he was seen climbing uninvited into the window of a stranger's residence. Reese had made no effort to contact the rightful owner of the cell phone, which was identified as stolen. When confronted by the occupant of the residence, Reese fled and resisted detention while awaiting the arrival of police. ‘[E]vidence that a defendant was attempting to avoid police detection immediately before or during the commission of a crime, just like evidence of flight following a crime, is circumstantial evidence of consciousness of guilt.’ (Punctuation omitted.) Green v. State, 277 Ga.App. 867, 869(1) (627 S.E.2d 914) (2006). Therefore, when viewed favorably to the verdict, these circumstances were sufficient to support an inference that Reese knew the items were stolen.” Dixson v. State, 313 Ga.App. 379, 721 S.E.2d 555 (November 23, 2011). Physical precedent only. 1. Theft by receiving and related convictions affirmed. “Although Dixson contends that the State failed to prove venue, OCGA § 16–8–11