dissenting.
I agree with the majority that Francis McMahon acted criminally in obtaining money from a bank for a construction loan while simultaneously receiving cash from the Morgans. However, I disagree that McMahon was guilty of theft by taking from the Morgans, the only offense for which he was convicted. Accordingly, I must respectfully dissent.
McMahon was charged under OCGA § 16-8-2, which provides that “[a] person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully *518appropriates 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.” The statute thus defines two alternative types of theft — an unlawful taking of property or an unlawful appropriation of property lawfully obtained.2 Here, the State charged McMahon solely with unlawful taking. And, tó sustain a conviction for this offense, “the evidence must show that the requisite intent to deprive the owner of the property was present at the time of the taking .”3 In this case, I do not believe the evidence supports the conclusion that McMahon intended to steal from the Morgans at the time he took the money.
'(Pursuant to the contract between McMahon and the Morgans, the Morgans delivered seven payments to McMahon to fund the house construction,4 and McMahon — or his company — completed 70 to 80 percent of the home. On appeal, the State argues that “while work may have been performed at the site, the money provided by the Morgans did not make its way to the people who were actually doing the work and/or providing materials.” Undoubtedly, McMahon had cash-flow problems, and his foreman testified generally that McMahon failed to pay some subcontractors. The five subcontractor liens introduced by the State, however, provide the only evidence regarding the amount of nonpayment, and those liens show approximately $29,000 in claims. The evidence further shows that, beginning July 2, 1997, the Morgans made seven separate payments totaling $161,000 to McMahon.
Given the substantial sum paid by the Morgans, the percentage of work completed, and the evidence that subcontractors filed only $29,000 in liens against the property, the State’s claim that none of the Morgans’ money reached those actually doing the work lacks a factual basis. And I cannot agree that McMahon’s alleged failure to pay these subcontractors $29,000 raises a reasonable inference that, when the Morgans delivered the seven separate payments to McMahon, he intended to use each of them for some purpose other than funding the construction. The State presented no evidence that might be probative of intent, such ás proof regarding how McMahon planned to use this money when received or how the individual payments were, in fact, spent. I only know that they were deposited into a Tri-Mac account and significant work was completed on the house.5 *519Any conclusion that particular payments were used on something other than the Morgans’ home would be speculation, as would any conclusion that McMahon intended to misuse the individual payments upon receipt.
At trial, the State argued that the altered contract McMahon submitted to Brand Bank “is evidence that [McMahon] intended to steal from the [Morgans] from the very get-go of this endeavor.” I simply do not believe that McMahon’s misrepresentations to the bank provide insight into his intent with respect to the Morgans. From the evidence, a jury could find that McMahon misled the bank to obtain additional funds. That finding, however, does not create an inference that McMahon accepted payments from the Morgans between July and November 1997 with the intention to use their money for some purpose other than building their home.
Having charged McMahon with an unlawful taking, the State bore the burden of demonstrating McMahon’s criminal intent at the time he received each payment.6 The evidence shows that McMahon experienced financial difficulties, did not finish the Morgans’ home, misled the bank to obtain construction loan payments, and failed to repay that loan, resulting in the foreclosure. But the State offered no evidence that, when the Morgans paid McMahon between July and November 1997, McMahon intended to use their money for some purpose other than building their house.7 Accordingly, I do not believe that the evidence supports the jury’s verdict that McMahon was guilty of theft by taking.
Evidently, the majority believes that McMahon was guilty of theft by deception. And, as noted by the majority, the State may indict a person for theft by taking and prove theft by deception, because “[t]he phrase ‘regardless of the manner in which the property is taken or appropriated’ [in OCGA § 16-8-2] is broad enough to encompass theft by deception.”8 Nonetheless, the State still must prove present intent to deceive because, however broad the statute *520may be, it does not permit the State to indict a person for theft by taking and prove theft by appropriation.9 And, contrary to the majority’s conclusion, I do not believe that the mere fact that McMahon took money from the Morgans after obtaining a construction loan from the bank shows that McMahon had the present intent to deceive the Morgans. Again, McMahon’s misrepresentations to the bank shed no light on his intent with respect to the Morgans. In view of the fact that . McMahon virtually completed the Morgans’ house, the evidence simply does not support the conclusion that McMahon intended to steal from them at the outset. Accordingly, I dissent.
Decided October 28, 2002 Reconsideration denied November 21, 2002 H. Edward Marks, Jr., for appellant. Daniel J. Porter, District Attorney, George E Hutchinson III, Assistant District Attorney, for appellee.I am authorized to state that Presiding Judge Andrews joins in this dissent.
See Spray v. State, 223 Ga. App. 154, 155 (1) (476 SE2d 878) (1996); Walker v. State, 146 Ga. App. 237, 239 (1) (a) (246 SE2d 206) (1978).
(Emphasis supplied.) Spray, supra at 156.
The Morgans actually made additional payments to McMahon, but he was found guilty of theft by taking for seven of the payments.
Only the final two payments in October and November 1997 were earmarked for particular work - the alterations to the original construction plans. The State has pointed to no *519evidence that these alterations were not completed or that McMahon accepted the payments with the intention not to complete the specified work.
See Spray, supra.
See Walker, supra at 239-240, 242-243 (1) (b). Cf. Elder v. State, 230 Ga. App. 122, 124 (2) (495 SE2d 596) (1998) (given evidence that defendant deceived investors about investment opportunity, jury could conclude that defendant unlawfully took investors’ money); Spray, supra (jury could reasonably conclude that public official intended to take state property for his own personal use at time he received it and thus was guilty of an unlawful taking); Bell v. State, 220 Ga. App. 293, 294 (1) (469 SE2d 714) (1996) (jury could conclude that defendant deceived car salesman into allowing him to test drive truck, which he then stole, “and that such deception constituted an unlawful taking”); Mullen v. State, 203 Ga. App. 170, 172 (2) (416 SE2d 784) (1992) (although bank gave defendant access to money, she “was well aware that she was obtaining funds which did not belong to her and which she had no right to receive,” and thus could be found guilty of an unlawful taking).
Elder, supra at 123-124 (1).
Compare Spray, supra.