An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1033


Filed: 18 November 2003

                            Craven County
v .                         Nos.    98 CRS 14125
                                 01 CRS 7626    
LEWIS O'LEARY,                        

    Appeal by defendant from judgments entered 14 December 2001 by Judge Paul L. Jones in Craven County Superior Court. Heard in the Court of Appeals 21 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Kay Linn Miller Hobart, for the State.

    McCotter, McAfee & Ashton, P.L.L.C., by Rudolph A. Ashton, III and Kirby H. Smith, III; and Mast, Schulz, Mast, Mills, Stem & Johnson, P.A., by Bradley N. Schulz, for defendant- appellant.

    GEER, Judge.

    In this appeal, defendant Lewis O'Leary contends that the State presented insufficient evidence at trial that his company's deposit of an insurance check issued to pay for repairs of Hurricane Fran damage constituted obtaining property by false pretenses and uttering of a forged instrument. Based on our review of the record, we agree that the trial court should have granted defendant's motion to dismiss and, therefore, reverse.

    In September 1996, after Hurricane Fran caused significant damage to the house of Mary and Joseph Gordon in New Bern, theGordons reported the damage to their insurer, Kemper Insurance Company ("Kemper"). A Kemper agent brought defendant to the Gordons' house. Defendant gave Ms. Gordon his business card, showing that he was the Construction Manager for Probuilders, Incorporated. Kemper was paying Probuilders to appraise property damage and compile the estimates into written reports.
    After examining the house, defendant met with the Gordons for three hours to discuss the cost of the various repairs that needed to be done. Defendant then compiled a damage report totaling $52,731.77; he provided a copy to the Gordons and a copy to Kemper's adjusting service for their review. Defendant also submitted a proposed contract to the Gordons.
    Defendant returned to the house two days later and signed the contract along with the Gordons. Mr. Gordon testified that defendant "requested we give him the check as soon as we get it so the work could commence, as soon as we got the check from our insurance company, and he would send the check or take care of it with the mortgage company, we didn't need to worry about it. He assured us of this."
    Approximately one week later, on or about 19 September 1996, defendant's son, Eddie O'Leary, was at the Gordons' house as part of defendant's work crew. Mr. Gordon testified that when the check from Kemper arrived in the day's mail, "Mr. O'Leary's son wanted that check right away, and I felt I was being pressured to give him the check." The check, in the amount of $52,231.77, was payable to Joseph and Mary Gordon, SunTrust Mortgage, and Probuilders, Inc. Eddie instructed the Gordons to endorse the check and give it to him. At the time the Gordons signed the check, there were no other signatures or typing on the reverse of the check.
    Maxine Hall, a former employee of SunTrust Mortgage, testified as to the usual practice with an insurance check issued to a homeowner in an amount over $10,000.00. She explained that the check is customarily placed in an escrow account with disbursements issued to the bank, contractors, or other parties only after inspections to ensure that the work of the contractors was done properly. In this case, however, the entire insurance check was deposited on 1 October 1996 directly into Probuilders' bank account with First Union National Bank.
    At the time of deposit, the reverse of the check had the Gordons' signatures followed by typing providing for endorsement by Maxine Hall for Suntrust Mortgage and by defendant for Probuilders. Defendant had endorsed the check and there also was a signature purporting to be that of Maxine Hall. Ms. Hall, however, testified that she neither signed the check nor had authority to sign the check.
    Defendant testified that Wayne Yeo _ described as the "financial backer" of Probuilders _ handed him the Gordons' check while defendant was in the middle of preparing another estimate. Defendant signed the check and immediately returned it to Mr. Yeo. According to defendant, the Gordons' and Ms. Hall's signatures were already on the check when he endorsed it. A handwriting analysis expert testified on defendant's behalf that he had not foundanything in defendant's handwriting to indicate that defendant had actually signed Ms. Hall's name.
    The State offered no evidence regarding how the check came to be deposited in Probuilders' account. Defendant testified that he did not fill out the deposit slip; it was not in his handwriting. Defendant further testified:
            Q.    Now, as far as depositing it, could you have actually made the deposit?

            A.    It's possible.

            Q.    You said you normally were too busy to make deposits.

            A.    There was a team up here and I was probably the busiest member of the team. There were other folks available to do things like that.

            Q.    But if you were available near 9/17, you made some deposits?

            A.    I would not go out of my way not to make a deposit.

            Q.    You made some deposits?

            A.    I'm certain I made some at some point.

    Defendant was indicted with forgery of an instrument, uttering a forged instrument, and obtaining property by false pretenses. At trial in December 2001, defendant moved to dismiss the charges against him at the close of the State's evidence and at the close of all the evidence. The trial court denied defendant's motions. The jury found defendant not guilty of forgery, but guilty of uttering a forged endorsement and obtaining property by false pretenses.     Defendant argues on appeal that the trial court erred in failing to grant his motion to dismiss. In considering a motion to dismiss in a criminal case, the trial judge must decide whether there is substantial evidence of each element of the offense charged. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). "Evidence is 'substantial' if a reasonable person would consider it sufficient to support the conclusion that the essential element in question exists." State v. Barnette, 304 N.C. 447, 458, 284 S.E.2d 298, 305 (1981).
    In reviewing a trial court's denial of a motion to dismiss, the appellate court views the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence, and resolving any contradictions in the evidence in favor of the State. State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994). The appellate court must then determine, based on that evidence, if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Barnette, 304 N.C. at 458, 284 S.E.2d at 305.
False pretenses
    The essential elements of the crime of obtaining property by false pretenses, N.C. Gen. Stat. § 14-100 (2001), are: (1) a false representation of a subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which one person obtains or attempts to obtain value from another. State v. Parker, 354 N.C.268, 283-84, 553 S.E.2d 885, 897 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). N.C. Gen. Stat. § 14-100(b) provides, however, that "[e]vidence of nonfulfillment of a contract obligation standing alone shall not establish the essential element of intent to defraud."
    To support this charge, the State relied solely upon defendant's statement to the Gordons at the time they signed the contract that he would send the insurance check to the mortgage company or otherwise "take care of it with the mortgage company." Originally, under N.C. Gen. Stat. § 14-100(a), criminal liability could not be based on a person's misrepresentation of his or her intention to do an act in the future. As a result of an amendment in 1975, however, the statute now "include[s], within the definition of 'false pretense,' cases where someone misrepresents his present intention to perform a promise." State v. Compton, 90 N.C. App. 101, 103, 367 S.E.2d 353, 354 (1988) (emphasis added). This Court held in Compton that the mere fact that a defendant did not follow through on his promise "is insufficient to allow an inference that the promise was made without the present intention to comply with it." 90 N.C. App. at 104, 367 S.E.2d at 355. There must be "other incriminating evidence." Id.
    In other words, to obtain a conviction in this case, the State was obligated to offer other incriminating evidence apart from the non-fulfillment of the promise to prove circumstantially that defendant never had any intention of forwarding the check to the mortgage company or otherwise "to take care" of the mortgagecompany. For example, in State v. Barfield, 127 N.C. App. 399, 402, 489 S.E.2d 905, 908 (1997), involving a prosecution for obtaining money by an ultimately unfulfilled promise to move a house, the State offered evidence of two other instances in which the defendant received money without ever fulfilling his promise to move a house.
    Here, the State offered no circumstantial evidence of an intent to defraud such as a pattern of misconduct or any other behavior suggesting that defendant never had any intention of earning the money legitimately.   (See footnote 1)  Instead, the State relies upon the fact that defendant did not forward the check to the mortgage company. This fact without more is not enough. Since the State failed to meet its burden, the trial court should have granted defendant's motion to dismiss the charge of obtaining property by false pretenses.
    To convict a defendant of uttering a check with a forged endorsement, N.C. Gen. Stat. § 14-120 (2001), the State must prove beyond a reasonable doubt that (1) defendant passed a check to another, (2) such check contained an endorsement which was forged, (3) defendant knew that such endorsement was forged, and (4) defendant acted for the sake of gain or with the intent to defraudor injure any other person. State v. Forte, 80 N.C. App. 701, 702, 343 S.E.2d 261, 262, disc. review denied, 316 N.C. 735, 345 S.E.2d 400 (1986). Based on our review of the record, we conclude that the State failed to offer substantial evidence that defendant directly or indirectly passed the Kemper check with the forged endorsement.
    On this element, the State offered only the testimony of Vernon McClendon of First Union National Bank that the Kemper check was in fact deposited into Probuilders' business account. The State offered no evidence that defendant deposited the check or that defendant directed anyone else to deposit the check. Defendant's testimony did not supply the necessary link. Defendant testified that he endorsed the check when his business partner Wayne Yeo handed it to him and then returned it to Mr. Yeo. Although admitting that he sometimes did make deposits, defendant denied that he had completed the deposit slip and testified that because he was normally too busy to make deposits, there "were other folks available to do things like that." At best, this evidence raises only a suspicion or conjecture that defendant caused the check to be deposited. See State v. Brayboy, 105 N.C. App. 370, 374, 413 S.E.2d 590, 593, disc. review denied, 332 N.C. 149, 419 S.E.2d 578 (1992) (when evidence only raises a conjecture or suspicion that the crime was committed or that the defendant was the perpetrator, the motion to dismiss should be granted).
    While there is evidence that someone involved with the contract to repair the Gordons' home forged Ms. Hall's endorsementand passed a forged instrument for the sake of gain or with the intent to defraud, the record lacks substantial evidence to support a conclusion that defendant committed the offense of uttering. The trial court should have granted the motion to dismiss the charge of uttering.
    Because of our disposition of this appeal, we conclude that it is unnecessary for us to address defendant's remaining arguments.

    Judges MARTIN and HUNTER concur.
    Report per Rule 30(e).

Footnote: 1
    The State does not dispute that defendant's company would have been entitled to the full amount of the Kemper check upon satisfactory completion of the required repairs. The State contends that defendant's behavior prevented the mortgage company from following the usual practice of disbursing the funds following inspection of the repairs.

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