Bearden v. State

• Decision Date: 15 June 2012
• Docket Number: No. A12A0753.,A12A0753.
• Citation: 728 S.E.2d 874,316 Ga.App. 721,12 FCDR 2058
• Parties: BEARDEN v. The STATE.
• Court: Georgia Court of Appeals

316 Ga.App. 721

728 S.E.2d 874

12 FCDR 2058

BEARDEN

v.The STATE.

No. A12A0753.

Court of Appeals of Georgia.

June 15, 2012.

John A. Nuckolls Sr., Atlanta, for Bearden.

Patrick H. Head, Anna Green Cross, for The State.

MILLER, Judge.

Following a jury trial, Rodney Allen Bearden was convicted of two counts of theft by taking (OCGA § 16–8–2). Bearden filed a motion for new trial, as amended, which the trial court denied.¹ On appeal, Bearden contendsthat the State failed to prove that he intended to unlawfully convert funds and also failed to establish venue. Bearden also contends that he received ineffective assistance of counsel. We discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.

(Citation and punctuation omitted.) Fogerty v. State, 304 Ga.App. 546(1), 696 S.E.2d 496 (2010).

So viewed, the evidence shows that Bearden, who lived in Smyrna, Georgia, advertised for the construction of modular homes and provided a toll-free number that was linked to his Smyrna residence. Upon seeing Bearden's advertisement, two families residing in Florida contacted Bearden to inquire about the construction of modular homes for them. After several discussions, the families entered into agreements to purchase modular homes through Bearden. With Bearden's assistance, the families obtained financing through Yorktown Funding. The two families finalized their contracts with Bearden and closed on their loans in September 2005.

Bearden subsequently contacted Precision Homes of Ocilla, Georgia, about purchasing a modular home for one of the families (the “Precision-project family”). Precision Homes notified Bearden that he would first need to pay $500 to cover the cost of engineering prints. A Precision Homes representative explained that before paying a deposit, the developer needed to lay the foundation of the home, which required engineering prints and a building permit. Bearden disputed having to pay a deposit since he claimed to have an “exclusive” agreement with Precision Homes, which would have allowed him to buy homes at a discount. However, Precision Homes had previously cancelled the agreement because Bearden had failed to comply with the requirements to maintain an exclusive agreement. Precision Homes informed Bearden that he would have to pay full price for the modular homes, and that he would have to give a 25% deposit before the company would commence construction of any modular home.

Bearden failed to perform under the contracts. Since the Precision-project family was having trouble getting Bearden to complete any work, the family contacted Yorktown Funding about their problems with Bearden. Notwithstanding Bearden's failure to complete any work to construct the modular homes for the Precision-project family, he drew $32,715 against their Yorktown Funding loan. Bearden had also asked for and received $22,029 against the other family's Yorktown Funding loan. Yorktown Funding sent the checks to Bearden's post office box located in Cobb County.

Shortly after receiving the Yorktown Funding checks, Bearden informed the families and Yorktown Funding via written correspondence that he was assigning construction of their modular homes to Precision Homes. Representatives from Precision Homes, however, stated that the company never agreed to accept an assignment to construct the families' modular homes. Precision Homes never received any money from Bearden towards the purchase of engineering prints or as a deposit to start construction of any modular homes.

After receiving Bearden's notice of assignment, the Precision-project family attempted to contact him, but Bearden did not return the family's calls. The family subsequently contacted the United States Secret Service, which initiated an investigation. In its investigation, the Secret Service traced the money that Yorktown Funding had disbursed to Bearden, which had been deposited into two separate bank accounts maintained by Bearden. Since Bearden had not done any work to start construction of the modular homes, the Secret Service initiated a civil seizure to recover the funds. The Secret Service recovered some, but not all, of the money, disbursed to Bearden, and it returned the seized money to Yorktown Funding to be applied against the families' respective loans. Bearden was subsequently arrested and charged with two counts of theft by taking.

1. Bearden contends that the State failed to prove that he intended to convert lawfully acquired funds for his own use. We disagree.

“A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” OCGA § 16–8–2.

Under the statute, the phrase “regardless of the manner in which the property is taken or appropriated” is a catch-all phrase rendering theft by taking broad enough to encompass theft by conversion, ... or any other of the myriad and even yet-to-be-concocted schemes for depriving people of their property. In a case such as this, when the alleged taking occurs when a defendant fails to perform under a contract with the victim, the “real issue” is whether the defendant accepted or retained the victim's money with no intention to satisfy his obligations under the contract.

(Citations and punctuation omitted.) Smith v. State, 265 Ga.App. 57, 59(1), 592 S.E.2d 871 (2004). Moreover,

[i]ntent may be found by the jury upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is being prosecuted. Whether a defendant has the requisite intent to commit a crime is a question for the jury.

(Footnote omitted.) Adams v. State, 284 Ga.App. 534, 535(1), 644 S.E.2d 426 (2007).

Here, shortly after Bearden received checks for the purpose of starting construction of the victims' modular homes, Bearden abandoned the respective projects without accomplishing any task towards completion of the modular homes. Significantly, despite receiving almost $55,000 for both projects, Bearden failed to pay the requisite deposits to obtain the engineering plans for the modular homes. While he contends that he was not required to pay this fee since he was an “exclusive” provider for Precision Homes, the company denied the existence of an “exclusive agreement” with Bearden. Moreover, Precision Homes was not a party to the contracts and denied accepting any assignment from Bearden to complete the modular home projects for the families. After informing the families that he “assigned” completion of the projects to Precision Homes, Bearden refused to return the families' telephone calls. The evidence established that Bearden had drawn $32,725 and $22,029 from the families' loans, but failed to construct the modular homes, and further failed to return any of their funds. Under these circumstances, the jury was authorized to infer that Bearden acted with fraudulent intent and to find him guilty of theft by taking. See Smith, supra, 265 Ga.App. at 59(1), 592 S.E.2d 871 (evidence was sufficient to support conviction for theft by taking where defendant abandoned project and failed to refund unearned portion of down payment to victims); see also Cox v. State, 275 Ga.App. 895, 895–896, 622 S.E.2d 11 (2005) (evidence was sufficient to authorize jury to infer that defendant fraudulently converted money for his own use where he received the money, he failed to use it for the specified purpose, and failed to return the victim's telephone calls).

2. Bearden also contends that the State failed to prove venue in Cobb County. We disagree.

“Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence.” (Citation, punctuation, and footnote omitted.) Scott v. State, 302 Ga.App. 111, 112(1)(a), 690 S.E.2d 242 (2010).

In the trial of a theft by taking case, “the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft,” OCGA § 16–8–11, and the State bears the burden of proving that the defendant exercised control over the property taken in the county where the case was prosecuted.(Citation and punctuation omitted.) Williams v. State, 297 Ga.App. 150, 151(2), 676 S.E.2d 805 (2009). Consequently, in the prosecution of theft by taking, venue is proper in the county where the checks were taken or deposited. Gautreaux v. State, 314 Ga.App. 103, 106(1), 722 S.E.2d 915 (2012); see also Naylor v. State, 257 Ga.App. 899, 900, 572 S.E.2d 410 (2002) (“[I]n theft by conversion cases, where the allegedly converted property is money, ... the [S]tate can proceed in the county where the accused received the money.”) (punctuation omitted).

Here, the Secret Service agent testified that during her investigation, she discovered that the Yorktown Funding checks disbursed from the families' loans were sent to Bearden at his mailbox located in Cobb County. Based on this evidence, venue was sufficiently established. See Queen v. State, 210 Ga.App. 588, 589(1), 436 S.E.2d 714 (1993) (venue established where defendant directed victims to send checks to his agent and agent physically received checks in relevant county); Hawkins v. State, 167 Ga.App. 143, 147(5), 305 S.E.2d 797 (1983) (in prosecution for theft by taking, venue was proper in county in which subject insurance premium checks were obtained, notwithstanding fact that...