Clarence Ellerbee was tried for four counts of deposit account fraud and one count of theft by deception. He was convicted solely of the crime of theft by deception. Following the denial of his motion for new trial, Ellerbee filed this appeal in which he contests the sufficiency of the evidence. He also contends that his acquittal on the other charges necessitated his acquittal on the theft by deception charge. Because we find that the record lacks proof of all the essential elements of the crime of theft by deception, we reverse.
Construed to support the verdict, the evidence shows that after working in retail automotive sales for more than 25 years, in October 1997, Ellerbee began a used car business known as Ellerbee Auto Sales. One of the primary suppliers of vehicles for Ellerbee’s used car business was Bill Heard Chevrolet.1 Bill Heard or BHC. Between October 1997 and December 1999, Ellerbee purchased vehicles worth approximately $1,500,000 from Bill Heard for resale. On a regular basis, Ellerbee would submit bids on vehicles received by Bill Heard as trade-ins. If Bill Heard accepted the bid, Ellerbee would give Bill Heard a draft for the car then recondition the car for resale on his own lot. The draft could be presented to a bank for payment only when combined with the vehicle title and other documents. By custom, the drafts were not presented for payment. Instead, when Bill Heard completed the title documents for a vehicle, which could require several weeks, Ellerbee would pick up the title work, retrieve his draft, then pay Bill Heard by check. In this same manner, Ellerbee routinely would buy several cars at a time from Bill Heard. For more than two years, Ellerbee paid the dealership without any problems.
