Following a jury trial, Rodney Allen Bearden was convicted of two counts of theft by talcing (OCGA § 16-8-2). Beardenfiled a motion for new trial, as amended, which the trial court denied.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.
(Citation and punctuation omitted.) Fogerty v. State,
So viewed, the evidence shows that Bearden, who lived in Smyrna, Georgia, advertised for the construction of modular homes and provided a toll-free number that was linked to his Smyrna residence. Upon seeing Bearden’s advertisement, two families residing in Florida contacted Bearden to inquire about the construction of modular homes for them. After several discussions, the families entered into agreements to purchase modular homes through Bearden. With Bearden’s assistance, the families obtained financing through Yorktown Funding. The two families finalized their contracts with Bearden and closed on their loans in September 2005.
Bearden subsequently contacted Precision Homes of Ocilla, Georgia, about purchasing a modular home for one of the families (the “Precision-project family”). Precision Homes notified Bearden that he would first need to pay $500 to cover the cost of engineering prints. A Precision Homes representative explained that before paying a deposit, the developer needed to lay the foundation of the home, which required engineering prints and a building permit. Bearden disputed
Bearden failed to perform under the contracts. Since the Precision-project family was having trouble getting Bearden to complete any work, the family contacted Yorktown Funding about their problems with Bearden. Notwithstanding Bearden’s failure to complete any work to construct the modular homes for the Precision-project family, he drew $32,715 against their Yorktown Funding loan. Bearden had also asked for and received $22,029 against the other family’s Yorktown Funding loan. Yorktown Funding sent the checks to Bearden’s post office box located in Cobb County.
Shortly after receiving the Yorktown Funding checks, Bearden informed the families and Yorktown Funding via written correspondence that he was assigning construction of their modular homes to Precision Homes. Representatives from Precision Homes, however, stated that the company never agreed to accept an assignment to construct the families’ modular homes. Precision Homes never received any money from Bearden towards the purchase of engineering prints or as a deposit to start construction of any modular homes.
After receiving Bearden’s notice of assignment, the Precision-project family attempted to contact him, but Bearden did not return the family’s calls. The family subsequently contacted the United States Secret Service, which initiated an investigation. In its investigation, the Secret Service traced the money that Yorktown Funding had disbursed to Bearden, which had been deposited into two separate bank accounts maintained by Bearden. Since Bearden had not done any work to start construction of the modular homes, the Secret Service initiated a civil seizure to recover the funds. The Secret Service recovered some, but not all, of the money, disbursed to Bearden, and it returned the seized money to Yorktown Funding to be applied against the families’ respective loans. Bearden was subsequently arrested and charged with two counts of theft by taking.
1. Bearden contends that the State failed to prove that he intended to convert lawfully acquired funds for his own use. We disagree.
A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof,*723 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.
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, ... or any other of the myriad and even yet-to-be-concocted schemes for depriving people of their property. In a case such as this, 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.
(Citations and punctuation omitted.) Smith v. State,
[i]ntent may be found by the jury upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is being prosecuted. Whether a defendant has the requisite intent to commit a crime is a question for the jury.
(Footnote omitted.) Adams v. State,
Here, shortly after Bearden received checks for the purpose of starting construction of the victims’ modular homes, Bearden abandoned the respective proj ects without accomplishing any task towards completion of the modular homes. Significantly, despite receiving almost $55,000 for both projects, Bearden failed to pay the requisite deposits to obtain the engineering plans for the modular homes. While he contends that he was not required to pay this fee since he was an “exclusive” provider for Precision Homes, the company denied the existence of an “exclusive agreement” with Bearden. Moreover, Precision Homes was not a party to the contracts and denied accepting any assignment from Bearden to complete the modular home proj ects for the families. After informing the families that he “assigned” completion of the projects to Precision Homes, Bearden refused to return the families’ telephone calls. The evidence established that Bearden had drawn $32,715 and $22,029 from the families’ loans, but failed to construct the modular homes, and further failed to return
2. Bearden also contends that the State failed to prove venue in Cobb County. We disagree.
“Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence.” (Citation, punctuation and footnote omitted.) Scott v. State,
In the trial of a theft by taking case, “the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft,” OCGA § 16-8-11, and the State bears the burden of proving that the defendant exercised control over the property taken in the county where the case was prosecuted.
(Citation and punctuation omitted.) Williams v. State,
Here, the Secret Service agent testified that during her investigation, she discovered that the Yorktown Funding checks disbursed from the families’ loans were sent to Bearden at his mailbox located in Cobb County. Based on this evidence, venue was sufficiently established. See Queen v. State,
3. Bearden further contends that his trial counsel provided ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington,466 U. S. 668 , 687 [(104 SC 2052, 80 LE2d 674)] (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.
(Citations and punctuation omitted.) Bridges v. State,
(a) Bearden first contends that his trial counsel was ineffective for failing to call certain “key” witnesses to his defense.
Here, trial counsel did not testify at the motion for new trial hearing. Consequently, “in the absence of testimony to the contrary, counsel’s actions are presumed strategic.” (Citations and punctuation omitted.) Watson v. State,
(b) Bearden also contends that trial counsel was deficient by failing to present additional evidence showing Precision Homes breached its contract with Bearden to provide modular homes under an “exclusive” agreement — an agreement which Bearden argues prevented him from fulfilling his contractual obligations to the families. However, “[i]n evaluating an attorney’s performance, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and where trial counsel does not testify at the motion for a new trial hearing, it is extremely difficult to overcome this presumption.” (Citation and punctuation omitted.) Watson, supra,
Here, trial counsel did not testify at the motion for new trial hearing. As such, Bearden failed to show that trial counsel’s actions were not strategic. See Watson, supra,
(c) Bearden next contends that trial counsel was ineffective for failing to object on hearsay grounds to portions of the Secret Service agent’s testimony regarding details of Bearden’s bank accounts and the delivery of Yorktown Funding checks to Bearden’s post-office box in Smyrna, Georgia. Again, Bearden’s contention is foreclosed by his failure to call trial counsel to testify at the hearing on his motion for new trial. See Mitchell v. State,
(d) Finally, in light of our holdings in Divisions 1 and 2 above, that the evidence was sufficient to sustain the convictions and to establish venue, there is no merit to Bearden’s claim that his counsel was ineffective for failing to move for a directed verdict of acquittal on these issues. Cf.Ballard v. State,
Judgment affirmed.
Notes
Bearden filed a notice of appeal following his conviction and subsequently filed his motion for new trial. After the notice of appeal was filed, Bearden obtained new counsel and moved to remand the case for consideration of his claims of ineffective assistance of trial counsel. This Court granted Bearden’s motion and remanded for further proceedings. Following a hearing, the trial court denied Bearden’s amended motion for new trial.