Shores v. State

522 S.E.2d 515, 240 Ga. App. 189, 99 Fulton County D. Rep. 3465, 1999 Ga. App. LEXIS 1197
CourtCourt of Appeals of Georgia
DecidedSeptember 13, 1999
DocketA99A1671
StatusPublished
Cited by4 cases

This text of 522 S.E.2d 515 (Shores v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shores v. State, 522 S.E.2d 515, 240 Ga. App. 189, 99 Fulton County D. Rep. 3465, 1999 Ga. App. LEXIS 1197 (Ga. Ct. App. 1999).

Opinion

Eldridge, Judge.

A Hall County jury convicted appellant, Patrick Shores, of seven counts of theft of services (felony), three counts of theft of services [190]*190(misdemeanor), and one count of theft by taking (felony).1 Appellant appeals from the trial court’s denial of his motion for new trial.

In the light most favorable to the verdict,2 the evidence shows the following: In September 1994, appellant, together with two partners operating as SMC Motorsports, L.P. (“SMC”), purchased Lanier Raceway in Hall County. Appellant was primarily responsible for promotion and race operations. In June 1995, SMC filed a petition for bankruptcy.3 At the time bankruptcy was filed, SMC had a monumental amount of debt. Some operating expenses had been paid that would allow SMC to keep the doors open and the drivers and spectators coming in, but SMC had not paid any of the mortgage payments and very little on payroll and other taxes. After filing bankruptcy, the debt structure of SMC did not improve. SMC paid no mortgage payments, made only part of their tax payments, and owed thousands of dollars to various vendors.

Even though the race track was operating without any capital and had massive pre-bankruptcy and post-bankruptcy debts, a decision was made to proceed with the final race of the 1995 season. This final race, which occurred over a four-day period from October 26 through 29, 1995, was unsuccessful. Only a few race cars and drivers participated in each event, and there were not many spectators in the stands. On Saturday there were only about 200 spectators. On Sunday, the day of the large races, only between 150 and 200 people were in the stands.

Jeffery Sliz, an attorney and operator of a competing track, testified that an owner of a race track can tell if a race is going to be profitable prior to the beginning of the race. Sliz further testified that it was apparent early in the weekend that, based on the number of spectators and the low turnout of race cars, there would not be enough money from the weekend to meet race expenses. Some of the drivers testified to the same effect. Fred Query, Jr., a race car driver, testified that he wrecked his car the first night of practice and had to return home to North Carolina to bring back his other car; that he was concerned, due to the low number of cars at the track, the race would not go forward; and that appellant assured him on two separate occasions that the race would go forward and that he would be paid if he won. Wayne Willard, another race car driver, testified that, due to the low number of race cars and spectators, he felt that the race would not be profitable and urged appellant either to call off the [191]*191race or to scale back the race. Willard testified that appellant refused and stated that everything was fine.

Further, appellant testified that during the last race of the weekend, he and his partners knew that they would be unable to cover the purses owed to the winning racers. However, knowing that there were insufficient funds in SMC’s checking account and that they did not have funds available to deposit into the account to cover the amount of the checks, they issued checks to various winners of the races on Sunday night. Early the next morning, appellant and his partners instructed their bank to “stop payment” on the checks they had written.

Wayne Willard, Fred Query, Jr., Allen Craig Willard, Jimmy Garmon, Larry James Killingsworth, Jr., Greg Garrison, Jeff Bradford, and Christopher Wingo testified that they received checks for the amount of the winning purses they were entitled to and that, when they presented their checks to the bank, they were denied payment because a stop payment had been entered on each of the checks. All these victims further testified that, at the time of trial, they had not received payment for the amount they were owed. Based on this testimony, the jury found appellant guilty of six counts of theft of services (felony) and two counts of theft of services (misdemeanor).

Partially unpaid was George Echols, President of American Winged Outlaws Sprint Car Association. Pursuant to a written contract with appellant and his partners, the Winged Outlaws raced on Friday and Saturday nights. The contract provided for an advance cash payment each night. Appellant and his partners made Friday’s payment timely, in cash. On Saturday, appellant and his partners did not have sufficient cash to pay Echols. In order to induce Echols to go forward with the show, appellant and his partners convinced Echols to accept the remaining portion of his payment by check, knowing there were insufficient funds in their checking account. Appellant and his partners specifically promised Echols that there were sufficient funds in their checking account to cover the check. Echols accepted a check in the amount of $6,500. When Echols presented the check to the bank where SMC maintained its account, there were insufficient funds in SMC’s checking account to cover the amount of the check. When Echols re-presented the check for payment, appellant and his partners had placed a stop payment on the check. Echols testified that he had not received payment for the amount of the check at the time of trial. The check given to Echols was the basis for a conviction of an additional count of felony theft of services.

The State also put up evidence that several law enforcement officers who worked security were not paid by appellant and his partners. These individuals were normally paid a week after they worked [192]*192and testified that they never received checks for the last race. The failure to pay John Marshall, a Hall County deputy sheriff, was the basis for a conviction of misdemeanor theft of services.

Also unpaid was Bearden Oil Company, which delivered, for cash on delivery, 1,200 gallons of race fuel to Lanier Raceway prior to this race event. Appellant was found guilty of theft by taking for his unlawful appropriation of this fuel without payment. Held:

1. Appellant asserts that the trial court erred in entering a judgment of conviction.

(a) OCGA § 16-8-5 provides that: “[a] person commits the offense of theft of services when by deception and with the intent to avoid payment he knowingly obtains services, accommodations, entertainment, or the use of personal property which is available only for compensation.” Appellant argues that the State failed to show the required element of criminal intent to avoid payment on the part of the appellant and that the evidence could support only a finding that appellant made a bad business decision, resulting in appellant’s convictions for theft of services representing an unconstitutional imprisonment for debt. We disagree.

[I]ntent is a question of fact for jury resolution. Farlow v. State, 59 Ga. App. 881, 883 (1) (2 SE2d 500) (1939). Intent may be proven by circumstantial evidence, by conduct, demeanor, motive, and all other circumstances. Harp v. State, 136 Ga. App. 897, 900 (3) (a) (222 SE2d 623) (1975).

Kennon v. State, 232 Ga. App. 494, 496 (3) (502 SE2d 330) (1998). In this case, appellant testified that, when the winners’ checks were written on Sunday night, he knew that there were insufficient funds in SMC’s checking account to cover the amount of the checks.

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Cite This Page — Counsel Stack

Bluebook (online)
522 S.E.2d 515, 240 Ga. App. 189, 99 Fulton County D. Rep. 3465, 1999 Ga. App. LEXIS 1197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shores-v-state-gactapp-1999.