Appeal by defendant from judgments entered 9 October 2002 by
Judge Evelyn W. Hill in Wake County Superior Court. Heard in the
Court of Appeals 4 February 2004.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General George W. Boylan, for the State.
Daniel Shatz for defendant-appellant.
Michael Joseph Mucci (defendant) appeals from four separate
judgments dated 9 October 2002 entered consistent with jury
verdicts finding him guilty of four counts of felonious issuing of
worthless checks. Defendant was sentenced to four consecutive six
to eight month sentences suspended upon his satisfactory completion
of thirty-six months probation conditioned on his performance of
twenty-five hours of community service per week and paying
$26,239.30 in restitution. Defendant was also fined $4,000.00 and
required to pay costs. For the reasons stated herein, we uphold
defendant's convictions but remand this case for resentencing.
The State's evidence tends to show that defendant was the
owner and president of Computer Exchange, Inc., a business that
built and sold personal computers. Defendant regularly purchasedsupplies from Cyberock, Inc., dealing personally with Kevin Thi
(Thi), Cyberock, Inc.'s General Manager, beginning in June 1999.
The original terms of their dealing required defendant to pay on
delivery, but later defendant requested net 20 terms, under which
defendant would not have to write a check for the supplies until
twenty days after receiving them.
This arrangement continued until 7 September 2000, when
defendant presented Thi with a check for $7,535.00 requesting that
Thi not deposit the check for thirty days. On 28 September 2000,
defendant presented Thi with another check for $6,000.00 requesting
that it also be held. On 25 October 2000, defendant gave Thi two
more checks. One was in the amount of $7,176.75 and the second was
in the amount of $5,527.55. Thi asked if he could deposit the
checks and defendant stated that the 25 October check for $7,176.75
could be deposited. Thi attempted to deposit that check but it was
returned for insufficient funds. Thi subsequently attempted to
deposit the remaining three checks but they were returned marked
On 7 September 2000, defendant's company's bank account, on
which the checks were written, contained a negative balance of
$127.34. On 28 September, the balance was $2,339.24, and on 25
October, the balance was $3,055.82. Furthermore, the company's
bank statement showed that eight checks had been returned for
insufficient funds during October 2000. Defendant's company
subsequently went out of business in 2001.
The issues are whether: (I) there was sufficient evidence
that defendant knowingly issued the worthless checks; (II) commentsmade by the trial court denied defendant a fair trial; (III) the
trial court incorrectly instructed the jury to apply a reasonable
person standard to the knowledge element of the offenses; (IV) the
trial court committed plain error by failing to instruct the jury
that defendant was charged as a corporate officer drawing a check
on a corporate account; and (V) the trial court erred in sentencing
defendant to thirty-six months of probation, twenty-five hours per
week of community service, and to pay full restitution.
 Defendant first contends that the trial court erred by not
dismissing the charges because there was insufficient evidence to
submit the charges of felonious issuing of a worthless check to the
jury. Specifically, defendant argues that there was no evidence
that he issued worthless checks knowingly. We disagree.
When a defendant moves for dismissal, the trial court is to
determine whether there is substantial evidence (a) of each
essential element of the offense charged, or of a lesser offense
included therein, and (b) of defendant's being the perpetrator of
the offense. State v. Earnhardt
, 307 N.C. 62, 65-66, 296 S.E.2d
649, 651 (1982). Substantial evidence is 'such relevant evidence
as a reasonable mind might accept as adequate to support a
. at 66, 296 S.E.2d at 652 (quoting State v.
, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). In
deciding a motion to dismiss, the evidence should be viewed in the
light most favorable to the State. See id
. at 67, 296 S.E.2d at
652. N.C. Gen. Stat. § 14-107(a) makes it unlawful for
any person, firm or corporation, to draw,
make, utter or issue and deliver to another,
any check or draft on any bank or depository,
for the payment of money or its equivalent,
knowing at the time of the making, drawing,
uttering, issuing and delivering the check or
draft, that the maker or drawer of it has not
sufficient funds on deposit in or credit with
the bank or depository with which to pay the
check or draft upon presentation.
N.C. Gen. Stat. § 14-107(a) (2003). This Court has recognized that
the essential elements of the crime of issuing a worthless check
(1) the person charged issued a check to
another; (2) such person had insufficient
funds on deposit in or lack of credit with the
drawee bank with which to pay the check upon
presentation; and (3) at the time the check
was written, the issuer knew that there were
insufficient funds or lack of credit with
which to pay the check upon presentation.
Semones v. Southern Bell Telephone & Telegraph Co.
, 106 N.C. App.
334, 339-40, 416 S.E.2d 909, 912-13 (1992). Knowledge in this
context 'connotes a certain and definite mental attitude' on the
part of the person charged. Id
. at 340, 416 S.E.2d at 913
(quoting State v. Miller
, 212 N.C. 361, 363, 193 S.E. 388, 389
(1937)). Knowledge or intent 'is a mental attitude seldom
provable by direct evidence. It must ordinarily be proved by
circumstances from which it may be inferred.' Id.
, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974)).
For example, the knowledge required under
Section 14-107 can be inferred from evidence
that the defendant issued other worthless
checks within the same time period as the
check at issue, or from evidence that the
defendant issued a check immediately after
making a deposit into his account, knowing
that the policy of his drawee bank is not topay checks until deposits made into the
drawer's account are actually collected.
. However, the mere issuing of a check which is returned due to
insufficient funds or lack of credit, without more, is not evidence
from which the requisite knowledge can be inferred. Id
In this case, not only was there evidence that the checks had
been issued with insufficient funds, there was also evidence that
other checks issued within the same time period had been returned
for insufficient funds and that defendant actually requested Thi to
hold the checks issued in September 2000 and not deposit them
immediately. This is sufficient circumstantial evidence from which
to infer that defendant knew that at the time he issued the checks
they were worthless. Thus, there was sufficient evidence that
defendant issued the worthless checks knowingly and the trial court
did not err by denying the motion to dismiss.
 Defendant next argues that the trial court improperly
expressed opinions on the evidence of defendant's guilt as well as
making other remarks that deprived defendant of a fair trial in an
atmosphere of judicial calm. A trial court is prohibited from
expressing any opinion in the presence of the jury on any question
of fact to be decided by the jury. N.C. Gen. Stat. § 15A-1222
(2003). Similarly, a trial court [i]n instructing the jury, . . .
shall not express an opinion as to whether or not a fact has been
proved and shall not be required to state, summarize or
recapitulate the evidence, or to explain the application of the law
to the evidence. N.C. Gen. Stat. § 15A-1232 (2003). Whether a
trial court's comment constitutes an improper expression of opinionis determined by its probable meaning to the jury, not by the
judge's motive. State v. McEachern
, 283 N.C. 57, 59-60, 194
S.E.2d 787, 789 (1973). Furthermore, 'a totality of the
circumstances test is utilized' under which defendant has the
burden of showing prejudice. State v. Anthony
, 354 N.C. 372, 402,
555 S.E.2d 557, 578 (2001) (quoting State v. Larrimore
, 340 N.C.
119, 155, 456 S.E.2d 789, 808 (1995)). '[U]nless it is apparent
that such infraction of the rules might reasonably have had a
prejudicial effect on the result of the trial, the error will be
considered harmless.' Larrimore
, 340 N.C. at 155, 456 S.E.2d at
808 (quoting State v. Perry
, 231 N.C. 467, 471, 57 S.E.2d 774, 777
Prior to the State's publication of exhibits including bank
records of defendant's company, the trial court commented to the
jury that it recognized that some people were better with numbers
than others and then stated:
So none of you is to feel the least bit
inadequate or the least bit unprepared. You
may look at these things for as long as you
care to look at them. But the good thing
about a jury is there is twelve. Thirteen
right now of you.
So you are not responsible for
understanding everything or even anything.
You just look at them and spend as much time
as you want. And if anyone needs any
assistance, just has a question they want to
Defendant contends this amounted to an instruction to the jury that
they should ignore critical evidence in the case and constituted animproper expression of opinion on the weight to be given to the
evidence. We disagree.
It is apparent from the transcript that the trial court was
simply informing the jury to take as much time as they wanted or
needed in order to look at the exhibits that were being published.
The trial court's comments are clarified in subsequent remarks to
the jury: Again, you can have as much time as you care to examine
these . . . . And also know that anytime during deliberations that
you want to look at these exhibits again as a group, they can be
sent back to you. The thrust of these statements to the jury is
clear. They were not encouragement to the jury to ignore evidence,
but rather to let the jury know they could take their time with the
exhibits and that it was not necessary to completely and
immediately comprehend everything in the bank records prior to jury
deliberations. Thus, the trial court's comment on the exhibits was
not an improper expression of opinion on the weight of the
N.C. Gen. Stat. §§ 15A-1222, -1232.
During the State's closing argument, which was not recorded,
the prosecutor apparently used a poster to illustrate his argument.
After the closing, a jury member asked:
UNIDENTIFIED JUROR: Your Honor, I am
sorry. Can I look at those numbers or will it
be in the jury room? I apologize.
THE COURT: You have absolutely nothing
to apologize for, sir. We owe you the apology
of not thinking ahead. Therefore, yes, of
course, you may have an opportunity.
When you come back from your break if you
would like to have that poster I am sure [the
State] will make it available to you.
Is that the one you are talking about?
UNIDENTIFIED JUROR: The -- whatever he
had on the easel there. I saw him carry
something up and he kept referring to numbers
and I could follow what he was pointing at but
I couldn't see it.
THE COURT: He was painting by number.
But we will make that available to you and I
apologize that we didn't think of that ahead
Defendant contends that the trial court's description of the
State's closing argument as painting by number[s] constitutes an
improper expression of opinion on defendant's guilt. He asserts
that the only legitimate interpretation of this remark is that the
trial court believed defendant's guilt was predetermined and that
all the prosecutor needed to do was to fill in the details so that
the jury would see the picture embedded in the outline.
As we have noted, whether a trial court's comment constitutes
an improper expression of opinion is determined by its probable
meaning to the jury, not by the judge's motive. McEachern
N.C. at 59-60, 194 S.E.2d at 789. In this case, the probable
meaning of the trial court's comment to the jurors was to tell them
that the prosecutor was using numbers on the poster as an
illustration of his argument. Thus, the trial court was not
expressing an opinion on defendant's guilt, but rather explaining
for what purpose the State's poster, which at least one juror was
unable to see, had been used. Nevertheless, even if this remark
could possibly be construed as a statement of opinion regarding
defendant's guilt, it is not apparent that it would have had any
impact on the verdict returned by the jury, and thus the remarkwould have been at most harmless error. See Larrimore
, 340 N.C. at
155, 456 S.E.2d at 808.
Defendant further argues that these two remarks taken together
and in combination with other statements by the trial court
cumulatively deprived defendant of a trial in an atmosphere of
judicial calm. He summarizes the additional comments on at least
five occasions in which the trial court disparaged the trial
process, the court system or judges, generally; at least seven
occasions that the trial court told the jury it was the trial
court's courtroom and the trial court made the rules, or encouraged
the jury to violate rules about not eating or drinking in the
courtroom; four times that the trial court told the jury they were
not allowed to bring in alcoholic beverages, but wished they could;
and at least five occasions where the trial court disparaged
defendant's trial counsel and twice where the trial court
displayed open hostility toward defendant.
We have reviewed all of the comments referred to by defendant
in the context of the totality of the circumstances and conclude
that they were within the trial court's inherent supervisory powers
over the conduct of the trial and not prejudicial to defendant.
. The majority of the trial court's comments involved the
trial court ordering the jury to have a good lunch and permitting
the jury to bring beverages into the courtroom. The comments to
defendant's attorney were either corrections, mild admonishments,
or praise for the manner in which he was conducting himself during
the trial. The remarks disparaging judges and the legal systemamount to statements that: the greatest fear of judges was
tripping and falling over their robes as they took the bench;
traditionally judges took lunches lasting an hour and a half to
give the judge time to sleep off the meal; jurors should ask the
law enforcement officers where to eat, because nobody knows where
to eat better than law enforcement; and telling one juror who
needed to arrange care both for his horses and children that he
could bring the horses to court with him, but not the children.
Although we do not necessarily condone these types of comments
by the trial court, neither do we believe they were prejudicial to
defendant, nor in the context of the entire proceeding did they
deprive him of a fair trial in an atmosphere of judicial calm. See
. Also, as in Larrimore
, the trial court instructed the jury
The law, as indeed it should, requires
the presiding judge to be impartial. You are
not to draw any inference from any ruling that
I have made, or any inflection in my voice or
expression on my face, or any question that I
have asked a witness or anything else I have
said or done during this trial, that I have an
opinion or have intimated an opinion as to
whether any part of the evidence should be
believed or disbelieved, as to whether any
fact has or has not been proved, or as to what
your findings ought to be.
Furthermore, the alleged open hostility towards defendant
occurred when, as he was testifying on cross-examination, the trial
court admonished defendant to answer the question that was being
asked and then if he needed to explain his answer he could do so.
The second instance occurred shortly after and the trial court sent
the jury out before admonishing defendant a second time to answer
the question that was being asked. These admonishments fall withinthe trial court's power to control the examination and cross-
examination of witnesses. See State v. Fleming
, 350 N.C. 109, 126,
512 S.E.2d 720, 732-33 (1999). Thus, we conclude the trial court's
comments did not constitute prejudicial error.
 Defendant next argues that the trial court erred in
instructing the jury to apply a reasonable person standard to the
knowledge element of issuing a worthless check. During its
deliberations, the jury sent out a note inquiring whether knowledge
that the check was worthless required actual knowledge on the part
of defendant. The trial court, after clarifying what the jury was
asking, instructed the jury that [a] person acts knowingly when
the person is aware or conscious of what he is doing. A person has
knowledge about the circumstances surrounding his act or about the
results of his act when he is aware of or conscious of those
circumstances or of those results. Thus, the trial court did not
instruct the jury to apply a reasonable person standard to the
knowledge element and we reject this assignment of error.
 Defendant assigns plain error to the trial court's failure
to instruct the jury that he was being charged as a corporate
officer. Defendant was indicted as a corporate officer issuing a
worthless check from a corporate account. The trial court instead
submitted the case to the jury as though defendant had issued a
worthless personal check from a personal account and thus, the
charges submitted to the jury did not conform with the theory of
the State's case. Because the elements of issuing a worthlesscheck are the same, whether defendant was charged as a corporate
officer or as an individual, the trial court did not commit plain
error as it is not probable a different result would have been
reached. See State v. Odom
, 307 N.C. 655, 660-61, 300 S.E.2d 375,
 Defendant finally contends the trial court committed
several errors in sentencing him. The trial court sentenced
defendant to thirty-six months of probation conditioned upon his
payment of restitution in the amount of $26,239.30 and completion
of twenty-five hours per week of community service, for a total of
3,600 hours over the entire probationary period. In addition, the
trial court fined defendant $1,000.00 per offense, totaling
$4,000.00 and ordered him to pay costs in the amount of $500.00.
First, defendant argues the trial court erred in sentencing
him to a thirty-six month probation term. We agree. N.C. Gen.
Stat. § 15A-1343.2(d)(3) clearly mandates that where a felon is
sentenced to community punishment, as was the case here, probation
may not be for more than thirty months, unless the trial court
specifically finds that a longer term is required. N.C. Gen. Stat.
§ 15A-1343.2(d)(3) (2003). The trial court in this case made no
such finding, thus it was error to make defendant's probation term
exceed thirty months. As a result, we must remand this case for
re-sentencing in order for the trial court to either impose a
probation term consistent with the statute or to make theappropriate finding of fact that a longer probationary period is
necessary. See State v. Lambert
, 146 N.C. App. 360, 366, 553
S.E.2d 71, 76 (2001).
Defendant next contends the trial court abused its discretion
in conditioning his probation on the payment of full restitution in
the amount of $26,239.30 and in addition completing twenty-five
hours of community service per week for the duration of defendant's
probationary period, irrespective of defendant's ability to pay.
Again, we agree.
N.C. Gen. Stat. § 14-107 expressly provides for restitution in
a worthless check case where no active punishment is imposed.
In deciding to impose any sentence other than
an active prison sentence, the sentencing
judge shall consider and may require, in
accordance with the provisions of G.S.
15A-1343, restitution to the victim for (i)
the amount of the check or draft, (ii) any
service charges imposed on the payee by a bank
or depository for processing the dishonored
check, and (iii) any processing fees imposed
by the payee pursuant to G.S. 25-3-506, and
each prosecuting witness (whether or not under
subpoena) shall be entitled to a witness fee
as provided by G.S. 7A-314 which shall be
taxed as part of the cost and assessed to the
N.C. Gen. Stat. § 14-107(e). In ordering a defendant to pay
restitution in a worthless check case, the trial court must do so
in accordance with N.C. Gen. Stat. § 15A-1343, which provides for
conditions of probation. See id
Under Section 15A-1343, community service or reparations, see
N.C. Gen. Stat. § 15A-1343(b1)(6) (2003), and restitution, see
Gen. Stat. § 15A-1343(d), may be imposed as conditions ofprobation. N.C. Gen. Stat. § 15A-1343(d), furthermore, provides a
procedure for the imposition of either restitution or reparation as
a condition of probation.
(d) Restitution as a Condition of
Probation. -- As a condition of probation, a
defendant may be required to make restitution
or reparation to an aggrieved party or parties
who shall be named by the court for the damage
or loss caused by the defendant arising out of
the offense or offenses committed by the
defendant. When restitution or reparation is
a condition imposed, the court shall take into
consideration the factors set out in G.S.
15A-1340.35 and G.S. 15A-1340.36. As used
herein, reparation shall include but not be
limited to the performing of community
services, volunteer work, or doing such other
acts or things as shall aid the defendant in
his rehabilitation. As used herein aggrieved
party includes individuals, firms,
corporations, associations, other
organizations, and government agencies,
whether federal, State or local, including the
Crime Victims Compensation Fund established by
G.S. 15B-23. A government agency may benefit
by way of reparation even though the agency
was not a party to the crime provided that
when reparation is ordered, community service
work shall be rendered only after approval has
been granted by the owner or person in charge
of the property or premises where the work
will be done.
N.C. Gen. Stat. § 15A-1343(d). Thus, the statute clearly requires
a trial court to use the same considerations in determining to
impose either restitution or community service reparations as a
condition of probation.
Among other things, N.C. Gen. Stat. § 15A-1340.36 requires a
trial court, when imposing a restitution or reparation requirement
on a defendant under Section 15A-1343(d), to consider factors
including the defendant's resources, ability to earn, support
obligations, and any other matters that pertain to the defendant'sability to pay. N.C. Gen. Stat. § 15A-1340.36(a) (2003).
Furthermore, the amount of restitution must be limited to that
supported by the record . . . . Id
. Although the statute
expressly does not require the trial court to make findings of fact
or conclusions of law on the factors, see id
., the record in this
case reveals that the trial court did not consider any of the
factors related to defendant's ability to pay the full amount of
restitution and thus this case must be remanded for a new
sentencing hearing. See State v. Smith
, 90 N.C. App. 161, 168, 368
S.E.2d 33, 38 (1988), aff'd per curiam,
323 N.C. 703, 374 S.E.2d
866 (1989) (remanded for new determination of restitution where the
trial court failed to consider defendant's financial situation).
We further conclude that in imposing both restitution and
community service conditions upon defendant's probation, the trial
court also failed to consider defendant's ability to comply with
both conditions simultaneously, as well as meeting his other
obligations under the sentence of paying costs and fines. The
conditions of probation in this case would require defendant to be
gainfully employed at such a wage as to be able to provide for his
family's support in addition to paying on average approximately
$10,000.00 per year in restitution, fines, and costs. The
imposition of twenty-five hours per week of community service over
a three year period as another condition of probation may make it
impossible for defendant to be gainfully employed to the extent
required to make his restitution payments and support his family.
. (trial court erred in imposing a restitution requirement as
a condition of probation in such an amount that defendant clearly[could not] comply); see also State v. Hayes
, 113 N.C. App. 172,
175, 437 S.E.2d 717, 719 (1993) (trial court erred in setting
amount of restitution where common sense dictated defendant clearly
would be unable to pay). Although the trial court asserted that,
each week for three years, defendant could perform ten hours of
community service on both Saturdays and Sundays, and then simply
perform five more hours of service on other days while maintaining
gainful employment, we do not believe this constitutes sufficient
consideration of defendant's ability to make both restitution and
reparation. On remand, the trial court, if it decides to impose
both restitution and reparation requirements, shall take into
consideration defendant's ability to comply with the community
service requirement while maintaining gainful employment to the
extent necessary to make restitution payments and support his
N.C. Gen. Stat. § 15A-1340.36(a).
On the facts of this case, ordering defendant to pay full
restitution of over $26,000.00 in addition to performing twenty-
five hours per week of community service for the entire
probationary period, for a total of 3,600 hours, while remaining
gainfully employed and paying $4,000.00 in fines plus $500.00 in
costs, without considering the required statutory factors, pursuant
to N.C. Gen. Stat. § 15A-1340.36 and N.C. Gen. Stat. § 14-107, was
error. Because the trial court failed to take into consideration
these statutory factors in imposing restitution and reparation and
further sentenced defendant to a probationary period longer than
thirty months without proper findings of fact, defendant is
entitled to a new sentencing hearing. No error at trial.
Remanded for a new sentencing hearing.
Judges McCULLOUGH and LEVINSON concur.
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