Clarence Keathley was convicted by a jury in Gwinnett County of the offense of Burglary for allegedly breaking into his ex-wife’s residence and stealing items from her. The indictment against Mr. Keathley specifically alleged that he entered his ex-wife’s dwelling without authority and with the intent to commit a theft therein. At the time he entered the residence, he and the victim were still married but living in a state of separation. Under Georgia law a person commits the offense of theft by taking when he unlawfully takes the property of another without permission. In defining ‘property of another’ Georgia’s theft statute specifically excludes property that belongs to the defendant himself or to his spouse. In other words, a person cannot be convicted of theft if he is taking property that belongs to him or his spouse. Thus, Keathley could not have held the intent to commit theft when he entered the dwelling of his spouse because he had the legal authority to take her personal property. It might not be the nice thing to do but it was legal.
Trial counsel apparently missed this aspect of the law regarding burglary. As a result, Mr. Keathley was convicted of Burglary and spent time is jail for the offense. I filed a motion for new trial on Mr. Keathley’s behalf based on the clear reading of the law. The trial judge denied my motion for new trial and I appealed his decision. The Court of Appeals agreed with me that Mr. Keathley could not have been convicted of that offense and reversed the judge’s decision and overturned the jury’s guilty verdict against him. Their decision can be read in full here.