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. 1
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.
Peter J. Skandalakis, District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.