Hill v. State ( 1990 )

Carley, Chief Judge.

Appellant was tried before a jury on two indictments, each of which charged him with commission of a theft. Although he was found guilty of both crimes, appellant appeals only from the judgment of conviction and sentence entered by the trial court on one of the jury’s guilty verdicts.

1. Appellant enumerates as error the denial of his motion for a directed verdict of acquittal..

Construed most favorably for the State, the evidence showed the following: Anwar Ali owned certain property which he wished to sell. After a purchaser was found who needed financing, Ali’s real estate agents introduced Ali to appellant. Appellant represented to Ali that, for a $2,500 fee, he would undertake to assist the purchaser in obtaining the necessary financing and that he would return the fee to Ali if he was not successful in doing so. Ali agreed to the terms and gave appellant $2,500 in cash at a meeting in Cobb County. Although appellant did attempt to arrange financing through a mortgage company, no loan was ever made. Ali requested the return of his $2,500 and appellant presented him with a check in that amount at a meeting in Clayton County. However, the check was not honored because of insufficient funds.

“The language embodied in the clause, ‘regardless of the manner in which said property is taken or appropriated, in [OCGA § 16-8-2], renders the section sufficiently broad to encompass thefts or larcenies perpetrated by deception as prohibited under [OCGA § 16-8-3], and theft by conversion, as prohibited under [OCGA § 16-8-4], the punishment for all of which is identical, as provided in [OCGA § 16-8-12].” Jones v. State, 137 Ga. App. 612, 613 (4) (224 SE2d 473) (1976). It is the State’s theory that the evidence set forth above authorized a finding that appellant committed a theft by conversion of Ali’s $2,500 in violation of OCGA § 16-8-4 (a). That statute provides, in relevant part, as follows: “A person commits the offense of theft by conversion when, having lawfully obtained funds ... of another . . . under an agreement or other known legal obligation to make a specified application of such funds . . ., he knowingly converts the funds ... to his own use in violation of the agreement or legal obligation.” (Emphasis supplied.)

Based upon a review of the record in this case, we conclude that the evidence will not authorize a finding that appellant obtained the $2,500 from Ali “under an agreement or other known legal obligation to make a specified application” thereof. Ali freely gave the $2,500 to appellant in return for appellant’s promise personally to provide certain future services. Compare Stull v. State, 230 Ga. 99, 102 (3) (196 SE2d 7) (1973). Ali gave no specific directions as to how the $2,500 was to be applied by appellant, Ali’s only interest after freely parting with the cash was in receiving the future services that appellant had agreed to perform on his behalf or in receiving a refund if those future services did not produce the desired result. This shows the existence of an enforceable contract, the breach of which would be civilly actionable. It does not show the existence of a violation of the criminal provisions of OCGA § 16-8-4 (a). “The contract itself merely specifies what [appellant was] to do and provides that he be paid [$2,500 for doing it]. It placed no burden on [appellant] to use the precise [$2,500 received from Ali to achieve the desired result] rather than an equivalent sum of money. It follows that the [S]tate failed to prove a conversion. ...” Eubanks v. State, 144 Ga. App. 152, 154 (2c) (241 SE2d 6) (1977).

2. There is, however, authority which purportedly supports the State’s theory: “[T]he evidence showed that Graddy contracted with appellant to build a laundry room in Graddy’s basement and paid $800 of the contract price at the time the contract was signed. When appellant did not commence the work pursuant to the contract, Graddy terminated the contract and appellant agreed to refund the initial amount paid less $25 for materials purchased. Appellant did not repay the money. . . . [A]ppellant’s conviction was based ... on the theory that he was given $800 under an agreement to make a specified application of the funds, and knowingly converted them to his own use in violation of the agreement. This would constitute theft by conversion. OCGA § 16-8-4.” Byrd v. State, 186 Ga. App. 446 (1) (367 SE2d 300) (1988).

Four judges of this Court now believe that this analysis in Byrd is erroneous. Having been paid funds for making property improvements, a contractor who uses those funds other than to pay for the labor, services or materials that have been furnished for the improvements may be guilty of theft by conversion under OCGA § 16-8-15

(a) . One who obtains funds by making promises of the performance of services which he does not intend to perform or knows will not be performed may be guilty of theft by deception under OCGA § 16-8-3

(b) (5). However, one who merely obtains funds as the present consideration for his promise to perform future services is under no agreement or other known legal obligation to make a specified application of those specific funds, but is only under the contractual obligation to provide the promised services and may not, therefore, be found criminally liable for theft by conversion of the funds under OCGA § 16-8-4. “The sole ‘interest’ that the [contracting party has] in the [funds is] a right to future [performance] pursuant to the . . . contract. It is thus clear that the [funds do] not belong to ‘another’ and [one] cannot be charged under [OCGA § 16-8-2] with theft of property to which he has not only ‘rightful possession,’ but also title, unless . . . the evidence supports a finding of guilt under [OCGA § 16-8-3] for theft by deception. [Cits.]” Elliott v. State, 149 Ga. App. 579, 581 (1) (254 SE2d 900) (1979). Compare Stull v. State, supra. Accordingly, four Judges.would overrule Byrd v. State, supra, insofar as it stands for the proposition that the evidence in either that case or the instant case would authorize a finding of guilt for theft by conversion under OCGA § 16-8-4.

3. The State also failed to prove appellant’s guilt for theft under any other theory. Since appellant is not a contractor and the funds were not paid to him pursuant to a contract to make improvements to Ali’s real property, the evidence in the instant case would not authorize a finding of his guilt for theft by conversion under OCGA § 16-8-15. Since there is no evidence that appellant did not intend to perform the services at the time that he accepted the $2,500 fee from Ali, there is no basis for upholding the conviction under the theory that appellant committed a theft by deception under OCGA § 16-8-3 (b) (5). See Holt v. State, 184 Ga. App. 664, 666 (1) (362 SE2d 464) (1987). Compare Henderson v. State, 257 Ga. 618 (362 SE2d 346) (1987) (submitting a bill for past goods and services that were never performed). The only crime that the State may have proved that appellant committed was the act of passing a bad check in violation of OCGA § 16-9-20. However, appellant was not being tried for that offense. It follows that his unauthorized conviction for theft must be reversed.

4. It is unnecessary to address appellant’s remaining contentions that the State failed to prove venue in Clayton County.

Judgment reversed.

Birdsong, Sognier and Cooper, JJ., concur. Banke, P. J., concurs in Divisions 1, 3, 4 and in judgment. Deen, P. J., McMurray, P. J., Pope and Beasley, JJ., dissent.