Stratacos v. State
293 Ga. 401
| Ga. | 2013Background
- Steven George Stratacos was indicted on ten counts of theft by deception for soliciting advance payments for construction services between 2005–2006; nine counts alleged felony amounts and one a misdemeanor.
- He took all or part of contract payments and in several jobs performed some work but failed to complete projects; in four jobs he did not start work.
- At trial the State presented victims’ testimony, invoices, and evidence of prior similar offenses; the jury convicted on all counts and the trial court imposed lengthy sentences.
- On appeal Stratacos argued four felony counts (Counts 1, 4, 5, 8) lacked sufficient evidence because the State did not prove the value of the partial work he performed.
- The Court of Appeals upheld all convictions, reasoning proof of value of work performed was not required; the Georgia Supreme Court granted certiorari to review that ruling.
- The Georgia Supreme Court held the State must prove the value of any services actually performed when the charge is theft by deceitful promise to perform services (OCGA § 16-8-3(b)(5)), and that felony punishment requires proof the shortfall exceeded the statutory felony threshold; it affirmed three counts and reversed Count 8.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether, in a prosecution under OCGA § 16-8-3(a) & (b)(5), the State must prove the value of services actually performed when the defendant partially performed promised services | State: need only prove contract, failure to perform, and failure to return advances; value of work not required | Stratacos: where partial performance occurred, State must prove value of services performed to show an intended deprivation | Held: State must prove value of services actually performed to show defendant intended to ultimately deprive the victim of property; otherwise inference of no criminal intent stands |
| Whether proof of the amount of services performed is required to support felony (vs. misdemeanor) punishment under OCGA § 16-8-12 | State: felony may be supported by showing defendant received money and failed to perform all services | Stratacos: to elevate to felony, State must prove the shortfall (money paid minus value of work done) exceeded the felony threshold | Held: Apprendi requires that the prosecution prove beyond a reasonable doubt that the value of the property taken (i.e., the shortfall) exceeded the felony threshold; thus value of work (or that no work was done) must be proved for felony sentencing |
| Adequacy of evidence on Counts 1, 4, 5 (partial performance) | State: victims’ testimony and invoices show underperformance and resulting loss exceeding felony threshold | Stratacos: evidence did not quantify value of work performed, so convictions cannot stand | Held: Evidence sufficient for felony convictions on Counts 1, 4, and 5 (jury could reasonably calculate shortfall) |
| Adequacy of evidence on Count 8 (partial performance with materials delivered) | State: invoice and replacement contractor payments show loss | Stratacos: State failed to prove value of labor/materials he actually provided, so no proof of intended deprivation | Held: Evidence insufficient even for misdemeanor; conviction on Count 8 reversed (jury would have had to speculate on value of work/materials) |
Key Cases Cited
- Millinder v. State, 124 Ga. 452 (1905) (under earlier labor-contract statute, actual loss to victim is essential element)
- Abrams v. State, 126 Ga. 591 (1906) (where advances made and some service performed but value of service not shown, prosecution fails)
- Holt v. State, 184 Ga. App. 664 (1987) (reversed conviction where no evidence service rendered was worth less than advances)
- Banton v. State, 57 Ga. App. 173 (1938) (reversed where evidence did not clearly show victim suffered loss given work performed)
- Campbell v. State, 286 Ga. App. 72 (2007) (discussed elements for prima facie theft by promise-to-perform but omitted need to prove value of work performed)
- Kimble v. State, 209 Ga. App. 36 (1993) (similar to Campbell; did not address quantification of partial performance)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact increasing maximum penalty must be submitted to jury and proved beyond reasonable doubt)