¶1dissenting.
¶2I am unable to agree with my colleagues that the State’s evidence shows prima facie any intent on Mr. McMellen’s part to defraud Mr. Hilton at the time he received the $2,000 from Mr. Hilton. The fact he failed to perform his contract with Mr. Hilton does not tend to show any intent, existing at the time he entered into the contract, not to perform it. The evidence is equally consistent with Mr. McMellen’s good faith at the time of the contract, and a later-formed intent not to perform it, or with a simple neglect, or inability, to perform it. The statute itself says: “Deception as to the actor’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise.” Section 570.010(6), RSMo 1986. I would reverse the conviction on the basis of State v. Basham, 568 S.W.2d 518 (Mo. banc 1978).
¶3The attorney-general cites three cases in which convictions have been affirmed against the defendant’s contention that the evidence was not sufficient to show defendant’s fraudulent intent, existing at the time he made the promise which he then did not perform. Those cases are: State v. Hollingsworth, 817 S.W.2d 479 (Mo.App.1991), State v. Bagley, 771 S.W.2d 93 (Mo.App.1989) and State v. Inscore, 592 S.W.2d 809 (Mo. banc 1980). Each case has evidence of defendant’s concurrent fraudulent intent which is absent from this case. In fact, in each case the defendant’s alleged fraud was shown to be in a pattern or scheme of ongoing fraudulent conduct. There is no such evidence in this case. The cases cited by the attorney-general are contrasts to our case, not analogies.