STATE OF NORTH CAROLINA
v. Wake County
No. 00 CRS 18540
RUDOLPH BRIKSZA
Attorney General Roy Cooper, by Assistant Attorney General
Dahr J. Tanoury, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant appellant.
McCULLOUGH, Judge.
On 2 October 2000, defendant pled guilty to obtaining advances
under promise to work in Wake County District Court. Defendant
appealed to the superior court for a trial de novo. The State's
evidence tended to show that on 19 October 1999, defendant gave
Lynn Goss a written estimate for painting the outside of her house.
Defendant went to Goss' house on 6 November to obtain a $460 down
payment from Goss. Defendant asked Goss to make him the payee of
the check instead of his company, A Stroke of Brilliance. In
exchange, defendant gave Goss a work order, which projected a work
start date of 17 November and a projected finish date of 22
November 1999. Defendant cashed the check two days after hereceived the check.
Defendant did not do any work on Goss' house in November.
Goss, however, noticed paint supplies in her backyard on 8
December, and on 10 December, she noticed a one-by-five-foot
section of the back of her house painted with primer. After Goss
received a letter from defendant on 16 December, but no additional
work on the house had been done, Goss contacted the Better Business
Bureau and the Attorney General's Office. On 6 January 2000, Goss
received another letter, in which defendant apologized for any
inconvenience and offered to cancel the contract for a fair price.
Goss telephoned defendant at the phone number on the letter and
left several messages for him to call her. In February, Goss sent
a certified letter addressed to defendant, but it was returned
because the addressee did not pick it up. Goss complained to the
Raleigh Police Department in March of 2000. Detective S.L.
Culpepper tried to contact defendant several times regarding Goss'
complaint. On 15 March 2000, Detective Culpepper went to
defendant's house and spoke with defendant's wife, who said she
would page defendant. Thirty minutes later, defendant walked up to
his house, at which time Detective Culpepper arrested defendant.
Defendant moved to dismiss based on insufficient evidence of
defendant's fraudulent intent at the time defendant obtained the
advance. After hearing arguments, the trial court denied the
motion.
Defendant testified that his ability to work was delayed
because he had surgery at Wake Med to remove masses on both of hisforearms on 12 November 1999. Defendant presented medical bills
showing that he had the surgery. He testified that he had informed
Goss that he was going to have surgery and that a subcontractor
would do the work. Defendant further testified that before he
purchased material for the paint job, Goss requested a color
change. Defendant testified that Goss did not inform him of the
new colors until after November 22nd. Defendant testified that “the
new date [] we settled on [was] the week of the 6th[.]” Defendant
testified that materials were delivered on the 3rd of December and
that subcontractors power washed the house on the 8th of December,
sanded and caulked the house on the 10th of December and started
priming the house on the 15th of December. Defendant testified
that the work was interrupted by rain and cold weather and that he
wrote Goss on the 16th of December regarding the delay, but that
Goss told him that she wanted him to continue the work. He also
testified that the weather was too cold during the month of January
to paint Goss' house. Defendant testified that negotiations with
Goss broke down and he did not perform any other work on the house.
Defendant renewed his motion to dismiss, which was denied.
A jury found defendant guilty as charged. The trial court
sentenced defendant to forty-five days in the custody of the Wake
County Sheriff, suspended the sentence, and placed defendant on
supervised probation for thirty-six months. Defendant appeals.
Defendant contends the trial court erred in denying his motion
to dismiss the charge. He argues that the State did not present
sufficient evidence that he did not intend to commence work at thetime he obtained the advance in order to submit the case to the
jury. We disagree.
"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.
Substantial evidence is defined as relevant evidence which a
reasonable mind could accept as adequate to support a conclusion."
State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998)
(citations omitted). "Ultimately, the question for the court is
whether a reasonable inference of defendant's guilt may be drawn
from the circumstances. If, upon consideration of all the
evidence, only a suspicion of guilt is raised, then the evidence is
insufficient, and the motion to dismiss should be granted." Id. at
488-89, 501 S.E.2d at 343 (citations omitted).
Defendant was charged with obtaining advances under promise to
work and pay for same under N.C. Gen. Stat. § 14-104, which
provides:
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
misdemeanor.
N.C. Gen. Stat. § 14-104 (2003). Our Supreme Court has stated thatthe State must prove that at the time defendant obtained the
advances defendant did not intend to commence work, but used the
promise as fraud for the sole purpose of obtaining the advances.
State v. Griffin, 154 N.C. 611, 612-13, 70 S.E. 292, 292 (1911).
Intent is an attitude or emotion of the mind and is seldom
susceptible of proof by direct evidence; it must ordinarily be
proven by circumstantial evidence from which it may be inferred.
See State v. Liberato, 156 N.C. App. 182, 186, 576 S.E.2d 118, 120
(2003).
Here, defendant cashed the $460 down payment check, which he
specifically asked be made out to him, on 8 November and the
projected start and finish date of the painting job was 17 November
and 22 November, respectively; however, defendant did not
accomplish any work on Goss' house in November. This evidence
sufficed to go to the jury on the question of whether defendant
intended to defraud Goss at the time he entered into the contract.
Defendant relies heavily on the evidence that he purchased paint
and had subcontractors caulk and prime part of Goss' house in
December. At best, this evidence presented a conflict in the
State's evidence, which was for the jury to resolve and does not
necessitate dismissal. See State v. McKinney, 288 N.C. 113, 215
S.E.2d 578 (1975). “In 'borderline' or close cases, our courts
have consistently expressed a preference for submitting issues to
the jury[.]" State v. Hamilton, 77 N.C. App. 506, 512, 335 S.E.2d
506, 510 (1985), disc. review denied, 315 N.C. 593, 341 S.E.2d 33
(1986) (citations omitted). The trial court properly denieddefendant's motion to dismiss.
No error.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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