Frost v. State, No. A04A1351.
| Decision Date | 10 August 2004 |
| Docket Number | No. A04A1351. |
| Citation | 603 S.E.2d 481,269 Ga. App. 54 |
| Parties | FROST v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
George Law III, Whitmer and Law, Gainesville, for Appellant.
Jason Deal, Melissa Sanford, Northeastern Judicial Circuit, Office of the District Attorney, Gainesville, for Appellee.
Following a jury trial, James Randall Frost appeals his conviction on one count of theft by taking, contending that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in failing to grant his general demurrer to the indictment; and (3) there was a fatal variance between the method of committing theft by taking alleged in the indictment and the method proved at trial. For the reasons which follow, we affirm.
1. In his first enumeration of error, Frost contends that the evidence was insufficient to support his conviction. We disagree.
Regarding sufficiency of the evidence, the standard of review is clear: On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.1 Conflicts in the testimony of the witnesses, including the State's witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.
(Punctuation omitted.) Kelly v. State.2
Viewed in this light, the evidence shows that Sam McGee and Frost entered into a business agreement to form a company called All Points Erosion Control ("APEC"). Under the agreement, McGee would supply the capital, approximately $250,000, for the purchase of the necessary equipment, and Frost, who had extensive experience in erosion control, would be responsible for the day-to-day operation of the business.
After McGee became upset with Frost because of a fine imposed on the company by the county, McGee told Frost he wanted out of the business and offered Frost the opportunity to buy the business. Though the two did not arrive at specific terms for sale of the business, they did agree that APEC would cease to exist on December 31, 2001, and that Frost would form a new company, All Points Erosion Control, Inc. ("APEC, Inc."), which would continue the business as of January 1, 2002. McGee and Frost also agreed, and sent out letters to existing customers to this effect, that payments for work done prior to December 31, 2001, were to go to McGee at APEC's Gainesville, Georgia address, and payments for work done after December 31, 2001, were to go to Frost, as sole owner of APEC, Inc., at APEC, Inc.'s Clermont, Georgia address.
Testimony at trial showed that when checks for work done after December 31, 2001, were sent to APEC, these checks were returned to the customers so that payment could be made to APEC, Inc. There was also evidence that checks for work done before December 31, 2001, were sent to APEC, Inc. rather than APEC. While some of these misdirected checks were returned, one of those checks, the theft by taking of which Frost was convicted, was not. The controller of Bowen & Watson, Inc., the customer that issued the check, testified that he received an invoice dated December 31, 2001, for work done by APEC prior to December 31, and that a check for $724 was written to APEC on January 21, 2002. However, the check, made out to APEC at its Gainesville office, as is indicated on the copy of the check submitted as State's Exhibit 2, was deposited to account number XXXXXXX on January 22, 2002. An employee with the bookkeeping department of the Gainesville Bank & Trust identified another check and a deposit ticket, State's Exhibits 7 and 8, used to deposit the check in APEC, Inc.'s account, and stated that APEC, Inc.'s account number was 0240069.
Robin Kemp, a criminal investigator with the Gainesville Police Department, met with Frost after McGee complained that Frost had retained checks owed to APEC. Frost admitted that he had received payments which might belong to McGee, but stated that the $724 check from Bowen & Watson was for work done after December 31, 2001, and belonged to him. He came to an agreement with Kemp to pay back the money owed to McGee by March 15, 2002, but the money was never paid, and a warrant was issued for his arrest. On the stand, Frost admitted that he had agreed to pay money back to McGee, but said that he did not do so because McGee had filed a civil suit against him for approximately $180,000.
Under OCGA § 16-8-2, "[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." Proof that the check, written to APEC for work done prior to December 31, 2001, was deposited into the APEC, Inc. account was sufficient to support the jury's determination that Frost committed theft by taking. Jordan v. State.3 This determination was further supported by testimony that Frost acknowledged that he had checks in his possession belonging to McGee, and that he was not going to pay McGee back for any checks he had received because McGee had instituted a civil suit against him.
Frost contends that there is no evidence that he received, cashed, or deposited the check. Theft by taking can be established by circumstantial evidence. Duke v. State.4 The jury was authorized to infer from the fact that the check was deposited into his account that Frost himself received or deposited the check into his account. Accordingly, the evidence was sufficient to enable a rational trier of fact to find Frost guilty beyond a reasonable doubt of the crime of theft by taking.
2. Frost next argues that his general demurrer to the indictment should have been granted because the indictment did not allege the crime of theft by taking; in making this argument, he finds significant the fact that the indictment alleged that he unlawfully received a check instead of charging him with unlawfully taking the check. We find no significance in the fact that he was charged with unlawfully accepting the check and no merit to this argument.
"In testing the sufficiency of an indictment, it must be borne in mind that the indictment need not quote literally the exact language of the statute which the defendant allegedly violated." Bostic v. State.5
The purpose of the indictment is to allow the defendant to intelligently prepare his defense and protect him from double jeopardy. A post-conviction review of an allegation of a defective indictment is one of harmless error. A defendant who was not misled to his prejudice by any alleged imperfection cannot obtain a reversal of his conviction on this ground. Because [Frost shows] no harm from the alleged defect, there was no error.
(Citations omitted.) Bullard v. State.6 See also Bostic, supra at 495, 326 S.E.2d 849 ( ...
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