Bearden v. State
316 Ga. App. 721
Ga. Ct. App.2012Background
- Bearden was convicted at trial of two counts of theft by taking under OCGA § 16-8-2.
- Two Florida families contracted with Bearden for modular homes; loans funded by Yorktown Funding and closed in September 2005.
- Bearden obtained $32,715 and $22,029 from Yorktown Funding for the two projects but did not complete construction.
- Precision Homes demanded deposits and engineering prints; Bearden claimed an exclusive agreement which Precision Homes denied and allowed only full price with a 25% deposit.
- Bearden informed parties that he assigned construction to Precision Homes; Precision Homes never agreed or received funds from Bearden for these projects.
- Secret Service traced the Yorktown checks deposited to Bearden’s Cobb County mailbox; money was partially recovered through a civil seizure and returned to Yorktown Funding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of intent to steal | Bearden contends there was no intent to convert funds unlawfully. | State argues Bearden abandoned projects after obtaining funds, showing fraudulent intent. | Sufficient evidence supports fraudulent intent and theft by taking. |
| Venue in Cobb County | Bearden argues venue was improper. | State proves venue via where funds were received/deposited and where control over property occurred. | Venue properly established in Cobb County. |
| Ineffective assistance of counsel | Bearden claims trial counsel failed to call key witnesses and present evidence of an exclusive agreement. | State argues counsel’s performance was strategic and lack of proffer prevents reversal. | No reversible error; claims fail under Strickland standard. |
Key Cases Cited
- Fogerty v. State, 304 Ga. App. 546 (2010) (evidence viewed in light favorable to verdict; no weight given to credibility; sufficiency standard)
- Smith v. State, 265 Ga. App. 57 (2004) (intent to steal can be inferred from abandonment of project and nonrefunding of down payment)
- Adams v. State, 284 Ga. App. 534 (2007) (jury may consider words, conduct, demeanor, motive to establish intent)
- Bridges v. State, 286 Ga. 535 (2010) (standard for evaluating ineffective assistance; strong presumption of reasonable performance)
- Watson v. State, 299 Ga. App. 702 (2009) (absence of counsel testimony undermines claim of deficient performance)
- Carmichael v. State, 305 Ga. App. 651 (2010) (cumulative evidence doctrine in evaluating ineffective assistance)
- Ballard v. State, 268 Ga. App. 55 (2004) (no ineffective assistance where evidence is sufficient to sustain convictions)
- Gautreaux v. State, 314 Ga. App. 103 (2012) (venue in theft by taking when money is involved; checks deposited in the relevant county)
- Naylor v. State, 257 Ga. App. 899 (2002) (in theft by conversion, money venue where money was received)
- Queen v. State, 210 Ga. App. 588 (1993) (venue established where defendant’s agent received checks in the relevant county)
- Hawkins v. State, 167 Ga. App. 143 (1983) (venue proper in county where premium checks obtained)