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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. CLARENCE OCTETREE
Filed: 6 September 2005
False Pretense--misdemeanor failure to work after being paid--motion to dismiss--
sufficiency of evidence
The trial court did not err by failing to dismiss the charge of misdemeanor failure to work after
being paid at the close of the State's evidence, because: (1) the evidence presented a question for
the jury to resolve when the alleged victim testified that he gave defendant $100 to buy supplies
for a task defendant had agreed to perform and defendant testified that he never received the $100
but refused to do the work because he had not been fully paid by the alleged victim for a previous
job; and (2) even though the $100 was intended for the purchase of materials, the State produced
substantial evidence under N.C.G.S. § 14-104 that defendant obtained an advance of money,
provisions, goods, wares or merchandise from the alleged victim on the false promise of
completing the work.
Appeal by defendant from judgment entered 12 May 2004 by Judge
C. Philip Ginn in Henderson County Superior Court. Heard in the
Court of Appeals 17 August 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Spurgeon Fields, III, for the State.
William D. Auman, for defendant-appellant.
Clarence Octetree (defendant) appeals from judgment entered
after a jury found him to be guilty of misdemeanor failure to work
after being paid. We find no error.
The State's evidence tended to show during late July 2003
William Noonan (Noonan) hired defendant to remove brush and trees
from his property over a two day period. Noonan paid defendant for
his work at the end of both days. Noonan was initially satisfied
with defendant's work and asked him to replace the wooden floor ofNoonan's backyard shed the following day. Defendant agreed to
perform the work and told Noonan that he would procure the plywood
required for the repairs. Noonan gave defendant $100.00 to
purchase the plywood. Defendant never returned to replace the
wooden floor in Noonan's shed and failed to refund Noonan's money.
At trial, defendant testified that he did not receive $100.00
from Noonan. Defendant claimed Noonan still owed him $1,200.00 for
previous work he had done. At the close of the State's evidence,
defendant moved to dismiss the charge due to insufficient evidence
concerning defendant's intent to defraud. The trial court denied
On 12 May 2004, a jury found defendant to be guilty of
misdemeanor failure to work after being paid. Defendant was
sentenced to sixty days of imprisonment. The sentence was
partially suspended for thirty-six months and defendant was placed
on supervisory probation and required to serve five days in jail.
Defendant contends the trial court erred by failing to dismiss
the charge at the close of the State's evidence due to
insufficiency of the evidence.
III. Standard of Review
To survive a motion to dismiss, the State must offer
substantial evidence of each essential element of the offense and
substantial evidence that defendant is the perpetrator. State v.
Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998) (citationomitted). Substantial evidence is evidence that is existing and
real, not just seeming or imaginary. State v. Powell, 299 N.C.
95, 99, 261 S.E.2d 114, 117 (1980) (citation omitted).
Ultimately, the question for the court is whether a reasonable
inference of defendant's guilt may be drawn from the
circumstances. Lee, 348 N.C. at 488, 501 S.E.2d at 343 (citation
IV. Misdemeanor Failure to Work After Being Paid
Defendant was charged with misdemeanor failure to work after
being paid under N.C. Gen. Stat. § 14-104.
If any person, with intent to cheat or defraud
another, shall obtain any advances in money,
provisions, goods, wares or merchandise of any
description from any other person or
corporation upon and by color of any promise
or agreement that the person making the same
will begin any work or labor of any
description for such person or corporation
from whom the advances are obtained, and the
person making the promise or agreement shall
willfully fail, without a lawful excuse, to
commence or complete such work according to
contract, he shall be guilty of a Class 2
N.C. Gen. Stat. § 14-104 (2003).
The State must prove defendant did not intend to begin work at
the time he received the advances (of money or provisions, etc.)
but used the promise [to work] as an artifice or fraud for the
sole purpose of obtaining the advancements . . . . State v.
Griffin, 154 N.C. 611, 613, 70 S.E. 292, 292-93 (1911). Intent is
a state of mind and usually must be inferred from circumstantial
evidence. See State v. Liberato, 156 N.C. App. 182, 186, 576
S.E.2d 118, 120 (2003).
Noonan testified that he gave defendant $100.00 to buy
supplies for a task defendant had agreed to perform. Defendant
testified that he never received $100.00 and he refused to do the
work because Noonan had not fully paid him for a previous job.
Defendant moved to dismiss asserting the State had not presented
substantial evidence of defendant's intent to defraud. We hold
this evidence presented a question for the jury to resolve and does
not mandate dismissal. See State v. McKinney, 288 N.C. 113, 215
S.E.2d 578 (1975).
V. Money, Provisions, Goods, Wares
On appeal, defendant seeks to distinguish between being paid
in advance for work and receiving money to purchase materials.
Noonan's testimony, defendant argues, shows defendant was paid in
advance for materials only and was not paid in advance for work to
The statute, however, makes it a misdemeanor to obtain any
advances in money, provisions, goods, wares or merchandise of any
description from any other person on the false promise of
completing work. N.C. Gen. Stat. § 14-104 (emphasis supplied).
Noonan testified that he gave defendant $100.00 to purchase plywood
after defendant promised to complete the repairs. Even though the
$100.00 was intended for the purchase of materials, the State
produced substantial evidence defendant obtained an advance of
money, provisions, goods, wares or merchandise from Noonan on the
false promise of completing the work. Id.
The trial court did not err by denying defendant's motion to
dismiss on these grounds. Defendant received a fair trial free
from prejudicial errors he assigned and argued.
Judges MCCULLOUGH and BRYANT concur.
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