Gordon v. State , 181 Ga. App. 391 ( 1986 )

Benham, Judge,

dissenting.

As the majority states, appellant’s first enumeration is that the evidence presented against him at trial was not sufficient to support his conviction of two counts of theft by taking. After an exhaustive review of the record and trial transcript, I find myself in agreement with appellant and, therefore, in disagreement with the majority.

In order to fully discuss appellant’s enumeration concerning the sufficiency of the evidence, a recitation of the facts is necessary. Appellant was the sole proprietor of Photo Service Company and an independent salesman for Crown Camera, Inc. Both companies provided photo processing, printing, and reprinting services to the Georgia General Assembly. In actuality, Photo Service and Crown Camera served as “middlemen” between the legislative photographers and Toco Color Labs, where the film processing and reprinting were done. Appellant or one of his co-indictees would pick up film used by the legislature’s photographers and deliver it to Toco Color Labs. The processed film and prints were then delivered to appellant, who returned them to the photographers. Film to be used by the General Assembly photographers was also ordered through and delivered by appellant or his co-indictee. The General Assembly was Photo Service’s sole customer and provided appellant with 79 percent of the total business he procured on behalf of Crown Camera.

Appellant and his co-indictees were charged with theft by taking. The State contended the defendants had submitted false invoices to and received payment thereon from the Legislative Fiscal Office for color film processing, printing, and reprinting. In one count of the indictment, appellant and his co-indictees were charged with submitting to the Legislative Fiscal Office and receiving payment on false invoices from Crown Camera for $156,752 when they were allegedly lawfully entitled to no more than $35,356. In a separate count, it was alleged that false invoices from Photo Service in the amount of $240,462 were submitted to and paid by the Legislative Fiscal Office when appellant and his co-indictees were allegedly entitled to no more than $51,876.

The State’s case was made difficult to prove due to the fact that none of the invoices submitted to the Legislative Fiscal Office by Crown Camera and Photo Service was itemized. Each invoice stated “Color processing and printing” and “Color reprints” and a dollar amount for each category. Each invoice was accompanied by a non-itemized receipt signed by Billy Murphy, the photographer for the State House of Representatives, acknowledging he had received the processed film, prints, and reprints. Murphy testified he never counted the number of photographs he received from appellant and acknowledged he often signed the receipts without knowing if any pictures had been delivered. Without itemized invoices, receipts, or State records showing what actually had been received, the State had to take a more circuitous route in its attempt to prove appellant and his co-indictees had illegally taken money from the State for processing, printing, and reprinting film.

The State went about proving its case as follows. Introduced into evidence was a letter dated January 2, 1983, from appellant to Billy Murphy. The body of the letter contained a price list for processing and printing color film as well as for the various types of film, chemicals, and other supplies used by the Capitol photographers. The letter stated that the prices were “to be maintained during calendar year 1983.” After ascertaining that all the exposed film appellant received from the legislative photographers was processed at Toco Color Labs, the State compared Toco Color Labs’ 1983 price list with appellant’s letter/price list, and showed that appellant’s listed prices were approximately ten percent higher than Toco Labs’ prices. From this information the State extrapolated that the amount appellant was to charge the State for processing, printing, and reprinting was to be ten percent higher than the prices Toco Color Labs charged him. The State then presented evidence of the 1983 bills Toco Color Labs sent Crown Camera and Photo Service for processing, printing, and reprinting the legislative film. After adding ten percent to those bills, the State determined the price appellant “should have” charged the Legislative Fiscal Office and compared that price with the Crown Camera and Photo Service bills actually sent to and paid by the Legislative Fiscal Office. In 1983, Toco Color Labs charged Crown Camera $30,744 for photo processing, printing, and reprinting; invoices submitted by Crown Camera to the Legislative Fiscal Office for photo processing, printing, and reprinting totaled $156,752, a markup of 409 percent. During the same period of time, Toco Color Labs charged Photo Service $45,110; invoices submitted by Photo Service to the Legislative Fiscal Office totaled $240,462, a markup of 433 percent. The State contended that the difference between what Photo Service and Crown Camera should have charged and what they did charge was unlawfully taken from the State.

One commits theft by taking when one “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. There must be an unlawful taking or unlawful appropriation of the property of another to convict one of theft by taking. Clark v. State, 138 Ga. App. 266 (4) (226 SE2d 89) (1976). “An unlawful taking or appropriation of the property of another is a taking or appropriation thereof without authority of or contrary to law . . . Under [OCGA § 16-8-2], the gravamen of the offense is the taking of the property of another against the will of such other.” Stull v. State, 230 Ga. 99 (1) (196 SE2d 7) (1973). (Emphasis supplied.) There is no question in the case at bar that appellant received money from the State. What must be focused on is whether that money was unlawfully taken, i.e., against the will of the State or without authority or contrary to law. The evidence presented- at trial shows that the Legislative Fiscal Office willingly paid the bills sent to it by appellant as long as a receipt bearing an authorized signature accompanied the request for payment.

The majority opines that appellant took State funds unlawfully by taking advantage of the State’s lax payment system and of the trust of naive state employees. The fact that appellant may have taken advantage of the State does not negate the fact that the Legislative Fiscal Office willingly paid the funds to appellant. Since the gravamen of the offense of theft by taking is the taking of property against the will of the victim (Stull, supra), and it was undisputed that the Legislative Fiscal Office willingly made the payments to appellant, the State had to prove that appellant “obtained] property by any deceitful means or artful practice” (OCGA § 16-8-3), i.e., that appellant committed theft by deception.

“[T]he language embodied in [OCGA § 16-8-2], ‘Regardless of the manner in which said property is taken or appropriated,’ renders the section sufficiently broad to encompass thefts or larcenies perpetrated by deception as prohibited under [OCGA § 16-8-3]. . . .” Stull v. State, supra at 101. “A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property. A person deceives if he intentionally: (1) Creates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false; [or] (2) Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed . . . [or] (5) Promises performance of services which he does not intend to perform or knows will not be performed. Evidence of failure to perform standing alone shall not be sufficient to authorize a conviction under this subsection.” OCGA § 16-8-3.

In the case at bar, the State had the option of attempting to prove that appellant had created a false impression as to the amount he was going to charge the State for the photo processing, printing, and reprinting (OCGA § 16-8-3 (b) (1)); had failed to correct that previously created false impression (OCGA § 16-8-3 (b) (2)); or had promised performance of services he did not intend to perform (OCGA § 16-8-3 (b) (5)). With any option, the State’s case had to focus on the January 2 letter/price list sent to Billy Murphy by appellant. However, the language of OCGA § 16-8-3 (b) (1) “solely contemplates a deceitful representation as to ‘an existing fact or past event,’ ... a false promise of future performance cannot be grounds for a subsection [1] theft by deception prosecution.” Croy v. State, 133 Ga. App. 244 (1) (211 SE2d 183) (1974). See also Mathis v. State, 161 Ga. App. 251 (288 SE2d 317) (1982); Elliott v. State, 149 Ga. App. 579, 581 (254 SE2d 900) (1979). Compare Ray v. State, 165 Ga. App. 89 (2) (299 SE2d 584) (1983); Harris v. State, 141 Ga. App. 213 (233 SE2d 21) (1977). Appellant’s letter to Murphy, assuming it is a deceitful representation, is not a deceitful representation as to an existing fact or past event. If it is a false promise, it is one to be performed in the future, and that cannot be the grounds for conviction of a subsection (1) theft by deception. Croy, supra. In order to prove a subsection (2) theft by deception, “the prosecution had to prove everything it had to prove in subsection [1] plus the additional element of defendant’s ‘failure to correct’ the false impression he created.” Sassoon v. State, 138 Ga. App. 172, 176 (225 SE2d 732) (1976). Since the State could not prove a deceitful representation as to an existing fact or past event for subsection (1), it was unable to carry its burden with regard to subsection (2).

Finally, in order to obtain a conviction of theft by taking by proving theft by deception under subsection (5), the State must prove a definite contract. Banton v. State, 57 Ga. App. 173, 174 (194 SE 827) (1938). The State, for good reason, has not contended that the letter/price list constituted a binding contract to perform the services at the listed prices. Therefore, a conviction under subsection (5) was not proven.

In short, on January 2, 1983, appellant gave Billy Murphy a nonbinding price list. If he chose to deviate from the listed prices and the State willingly paid him what he asked, he committed no crime. The failure of the General Assembly photographers to maintain any type of business records, coupled with the failure of the State to enter into a binding contract with appellant for his services, reduces appellant’s conduct to nothing more than that of a sharp and cunning businessman doing business with and taking advantage of an unquestioning client. Because there was no evidence to support appellant’s convictions for theft by taking, we must reverse them.

The majority states there was evidence that appellant “did not charge [the State] what he said he would charge.” The majority’s position raises the January 2 letter/price list to the status of a binding contractual agreement (see Banton v. State, supra), which it is not; or makes the letter/price list a deceitful representation under OCGA § 16-8-3 (b) (1). However, as stated earlier, to sustain a conviction of theft by deception, a deceitful representation must be made as to an existing fact or past event — a false promise of future performance cannot be grounds of a theft by deception prosecution. Croy v. State, supra. Appellant’s letter/price list was a false promise of future performance. He was in no way bound to maintain the prices listed.

Decided December 4, 1986 Rehearing denied December 19, 1986 Robert J. Reed, Albert M. Pearson III, for appellant. Robert E. Wilson, District Attorney, Michael J. Bowers, Attorney General, Harrison W. Kohler, Senior Assistant Attorney General, George P. Shingler, Assistant Attorney General, for appellee.

I conclude by analogizing the facts of this case to a situation more likely to occur. If a vendor pays $1 for an item and then charges a customer $5 for the item, we do not say the vendor has committed a theft by taking. Even if the vendor told the customer, “Tomorrow, I will sell you this item for $5,” and then charges the consumer $10, which the consumer willingly pays, we do no say the vendor is a thief. Instead, we admonish the customer for not questioning the vendor about his increased price and for being taken advantage of. The same situation occurred here, though on a much larger scale. A lax system and naive employees were taken advantage of and appellant profited. While he may have benefited from the system, he did not commit theft by taking.

Because I do not believe the evidence was sufficient for a rational trier of fact to have found appellant guilty beyond a reasonable doubt of theft by taking, I must dissent to the affirmance of appellant’s convictions of theft by taking.

I am authorized to state that Judge Sognier joins in this dissent.