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Clement v. State

The State failed to prove that the 200 feet of fiber optic cable and 50 feet of copper cable, which the defendant had cut and taken from a telephone line running across the road to a telephone post in a pasture, exceeded $500.

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A jury convicted Victor Lamar Clement of misdemeanor theft by taking and criminal damage to property in the second degree, and the trial court denied his motion for new trial. On appeal, Clement contends that there was insufficient evidence to convict him of criminal damage to property in the second degree because the State failed to prove that the damage exceeded $500, an essential element of the indicted crime. We are constrained to agree with Clement and therefore vacate his conviction for criminal damage to property in the second degree. However, because the evidence was sufficient to support a conviction of the lesser included offense of criminal trespass to property, we remand the case with direction that the trial court enter a conviction and sentence for that lesser offense.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to support the verdict. See Bryan v. State, 271 Ga. App. 60 1 608 SE2d 648 2004. So viewed, the evidence showed that shortly after midnight on November 17, 2011, one of Clement’s neighbors was on his way to a convenience store when he drove over a strand of telephone wire lying across the road. The neighbor saw Clement in his black Mustang by the side of the road near the wire, and he immediately called 911 to report the suspicious activity. A few minutes later, the neighbor returned home from the store and noticed that the Mustang was now parked near Clement’s mobile home, which was approximately a quarter of a mile from where the telephone wire was lying in the road. The neighbor again called 911 and reported the location of the Mustang.

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