Opinion
A98A2214.
DECIDED: FEBRUARY 3, 1999.
Deposit Account fraud. Troup Superior Court. Before Judge Duffey.
Patterson Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.
Peter J. Skandalakis, District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.
Maddox was convicted of deposit account fraud which, under OCGA § 16-9-20 (a), a person commits by making or delivering an instrument for the payment of money on any bank or other depositary in exchange for "a present consideration or wages," knowing the drawee would not honor it.
The accusation alleged that on or about December 5, 1997, he unlawfully made and delivered a certain check in the amount of $2,000 drawn on his account at a named bank "in exchange for a present consideration, to wit: wages," with the essential knowledge. Maddox challenges the sufficiency of the evidence because of a variance between the allegation that the check was given for wages and the proof showing it was in payment for goods and services.
The victim Barber is a self-employed carpenter who did remodeling work on Maddox's home. Upon completion, Maddox paid Barber by the check. Barber deposited it into his checking account but it was dishonored several times. Barber gave Maddox notice pursuant to OCGA § 16-9-20 (a) (2) that the case would be prosecuted if the check was not paid within ten days. No payment resulted. Maddox testified in defense that he gave the check to Barber with the express understanding that funds to cover the check would not be deposited in his account for another week, that he was unable to deposit the funds by the week's end and tried unsuccessfully to contact Barber to resolve the matter, and that he did not pay when Barber contacted him weeks later because work was undone and repairs were needed.
Denial of the motion for directed verdict of acquittal is assigned as error on the ground the evidence that Barber is an independent contractor and not an employee of Maddox's means the check was given in exchange for goods and services, rather than for wages as the accusation alleged. Maddox relies on Hutto v. State. Hutto issued a check, subsequently dishonored, to landscape subcontractors performing services to Hutto's partnership in payment for services rendered four to six weeks before the check was issued. Division 1 of the opinion held that the requisite of present consideration was not met. Division 2 defined the term "wages," as used in OCGA § 16-9-20, as connoting an employer-employee relationship. Since the subcontractors in Hutto were not partnership employees, the court held that the check issued by Hutto was not given in exchange for wages. His conviction of deposit account fraud was accordingly reversed. Maddox's case is distinguishable because the evidence shows he gave the dishonored check to Barber in exchange for a present consideration, albeit goods and services rather than wages. The evidence thus supports the conviction.
198 Ga. App. 325 ( 401 S.E.2d 339) (1991).
The variance between the allegations and proof was not fatal. "[T]he rule that `allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.'" Maddox's defense was in no way prejudiced by any variance between the allegations of the accusation and proof at trial, and he clearly stands protected against another prosecution for the offense charged. Judgment affirmed. Pope, P. J., and Ruffin, J., concur.
Walker v. State, 146 Ga. App. 237, 240-241 (1) (b) ( 246 S.E.2d 206) (1978).
See McCarty v. State, 157 Ga. App. 336 (1) ( 277 S.E.2d 259) (1981) (variance between allegation and proof as to lot number of burglarized mobile home not fatal); Belcher v. State, 161 Ga. App. 442, 443 (1) ( 288 S.E.2d 299) (1982) (where cocaine-trafficking indictment alleged that defendant was in possession of more than 28 grams of cocaine, with such offense being committed whether the cocaine is in pure form or is merely present in a mixture containing other substances, state was only required to prove that substance which defendant possessed weighed more than 28 grams and contained cocaine); Kelly v. State, 188 Ga. App. 362 (2) ( 373 S.E.2d 63) (1988) (where indictment charged defendant with armed robbery of victims A and B, state was not required to prove that defendant robbed victim A in order to support charge that he robbed victim B); Adside v. State, 216 Ga. App. 129 (1) ( 453 S.E.2d 139) (1995) (no fatal variance between allegation that defendant obstructed law enforcement officers by attempting to run from them and proof that he abruptly moved away from them); compare Cantrell v. State, 162 Ga. App. 42 (1) ( 290 S.E.2d 140) (1982) (fatal variance resulted from allegation that defendant forged the name of named individual who was payee of a check and proof that the such individual was co-endorsee of check and only the signature of the other endorsee was forged); Ross v. State, 195 Ga. App. 624 (1) (b) ( 394 S.E.2d 418) (1990) (fatal variance between allegation that defendant committed aggravated sodomy by putting his mouth on the sexual organ of the victim and proof that he forced her to perform oral sex upon and have anal sex with him).