Patterson v. State
| Decision Date | 20 February 2008 |
| Docket Number | No. A07A1807.,A07A1807. |
| Citation | 289 Ga. App. 663,658 S.E.2d 210 |
| Parties | PATTERSON v. The STATE. |
| Court | Georgia Court of Appeals |
Steven L. Sparger, Savannah, for appellant.
Spencer Lawton Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.
A Chatham County jury found James Patterson, Jr., a mortgage consultant, guilty of eight counts of theft by taking money from people to obtain mortgages or make down payments, failing to do so, and then failing to return their money. Patterson, who represented himself at trial but was represented by counsel at the sentencing hearing, was sentenced to twenty years, with eight to serve, on the first two counts, plus ten years' probation on Counts 3 and 5 through 8, to be served concurrently. On Count 4, a misdemeanor, he was sentenced to 12 months' probation. He also was ordered to pay restitution of $42,589. On appeal, Patterson challenges the sufficiency of the evidence, specifically as to three counts; argues that the trial court erred in two of its jury charges; contends that the court did not comply with statutory procedures when it ordered restitution; and asserts that the court erred in rejecting his ineffective assistance of counsel claim. We affirm the convictions on Counts 1 through 3 and 5 though 8 but reverse the conviction on Count 4. We vacate and remand the sentencing order for the court to vacate the sentence on that count as well as the restitution attributable to it.
1. Patterson specifically contends that the evidence was insufficient to support the verdict with respect to Counts 3, 4, and 7 of the indictment, corresponding to victims Joe Williams, Jr., Leroy Kennedy, and Virdie Davis.
When reviewing a defendant's challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.1
Construed in favor of the verdict, the evidence supporting those three theft-by-taking convictions shows that Williams and Kennedy heard a radio advertisement in which Patterson's company, New Genesis, offered assistance in obtaining mortgages, while Davis heard about Patterson through her daughter. Williams testified that he went to Patterson's office to finance the purchase of a house. Patterson asked Williams for money, and Williams gave him $2,000 in cash. Patterson did not give him a receipt. Later Patterson called Williams and claimed he could not find the money. Patterson requested $1,750, and Williams gave it to him, in cash. Williams also gave him $350 for an appraisal. Three or four months passed without progress, and Williams called Patterson at least every other day. Patterson kept telling him they were working on it. Williams tired of this response and demanded his money back. Williams testified that Patterson was never in his office. One day, Williams sat in his car in Patterson's parking lot nearly an entire day waiting for him. Finally, Patterson showed up and said he was "working on" getting Williams's money back. Williams said he was not leaving until he got his money back. Patterson returned half of Williams's $4,100. On cross-examination, Williams admitted that he gave Patterson an additional $500 in consulting fees, and that Patterson "really was working" for it.
Kennedy testified that he told Patterson he was looking for a house priced around $100,000. Patterson requested an application fee of $165, which Kennedy paid, and referred him to an agent to look for a house. After Kennedy found a house, Patterson demanded $1,200 to "get started." Kennedy realized that "didn't sound right" and did not give him any more money. When he tried to get his $165 back, Patterson promised to return it but was never in the office when Kennedy went to retrieve it. Kennedy testified that Patterson did nothing to earn the money. However, on cross-examination, Kennedy admitted that Patterson took his employment information and pulled his credit report while they were sitting in the office. Kennedy testified that he gave Patterson $165 for pulling up his credit report.
Davis testified that she gave Patterson financial information; he told her to find a house, and promised to arrange the financing. Davis found a house, using the same agent whom Kennedy had used, and gave Patterson a cashier's check for $4,000. Patterson told Davis that the check was for earnest money. A closing was scheduled, but never took place, and Davis was not able to reach Patterson until after she threatened to file a police report. Patterson promised to return her money but never did so. On cross-examination, Davis admitted that Patterson had arranged a loan and a closing, but the closing was stopped by the lender's attorney after a credit check revealed unpaid debts. On redirect, Davis testified that the credit report cost $14.50; that she never agreed to pay Patterson any consulting fees; that he admitted that he owed her $4,000; and that she obtained a judgment against him in magistrate court, which she has not collected. Patterson testified that Davis stopped the loan process, and if she had not, the closing would have taken place.
For each victim except Kennedy, Patterson was indicted for one count of theft by taking currency in excess of $500; on Count 4, he was charged with taking less than $500.
"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."2
Under the statute, the phrase "regardless of the manner in which the property is taken or appropriated" is a catch-all phrase rendering our theft by taking statute broad enough to encompass theft by conversion, theft by deception or any other of the myriad and even yet-to-be-concocted schemes for depriving people of their property.3
Thus, the state may indict someone for theft by taking, but prove theft by deception, which is committed when a person obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.4 Or, the state may prove theft by conversion,5 which is committed when a person lawfully obtains property "under an agreement or other known legal obligation to make a specified application of such funds," and then "knowingly converts the funds ... to his own use in violation of the agreement or legal obligation."6
(a) Count 3. Patterson contends that the evidence fails to show beyond a reasonable doubt that he did not intend to perform under his agreement with Williams. "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."7 Whether Patterson intended to fulfill his contractual obligations when he took Williams's money was a question for the jury. Based on Williams's testimony as a whole, the jury was entitled to infer that Patterson acted with criminal intent and to find him guilty of theft by taking as charged in Count 3 of the indictment.8
(b) Count 4. Patterson's conviction of theft by taking $165 from Kennedy cannot be sustained. Even though the state presented evidence that a credit report cost only $14.50, and that Patterson promised to return Kennedy's money, Kennedy testified that Patterson performed the service for which he was hired. Accordingly, even construing the evidence in the light most favorable to sustaining the verdict, the state failed to show that Patterson did not intend to perform the service at the time he accepted money from Kennedy.9
(c) Count 7. The evidence in support of this count shows that Davis gave Patterson $4,000 to be applied as earnest money for the purchase of an $80,000 house. There was no evidence that the money was applied in this fashion, as the closing never took place. When Davis demanded her money back, Patterson said he needed a few days to get it to her. He never did. Also, as noted above, Davis never agreed to pay Patterson any consulting fees. The fact that Patterson arranged a loan that never closed was simply a piece of evidence for the jury to consider in determining whether he possessed the requisite criminal intent to convert the $4,000 to his own use. The jury was authorized to find Patterson guilty beyond a reasonable doubt of theft by taking as charged in Count 4 of the indictment.10
(d) Patterson contends that his convictions on all counts must be reversed because the state failed to show that he did not intend to perform the services at the time he accepted money from each of the alleged victims, an essential element of theft by deception. He also alleges that the state did not prove theft by conversion because the evidence shows that each victim gave money to Patterson in exchange for his promise to provide future services and none of the victims gave specific instruction on how the money should be applied. Patterson's argument is premised upon Hill v. State,11 in which we reversed a conviction of theft by conversion. In Hill, a property seller paid the appellant $2,500 to help the purchaser obtain financing, and the appellant promised to return the fee if his efforts were unsuccessful. Appellant tried to arrange a mortgage but could not, and the seller requested his money back. Appellant gave the seller a check drawn on insufficient funds.12 Appellant was indicted for, and convicted of, theft by conversion. We held that the evidence did not support a conviction under this theory because the seller did...
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