STATE OF NORTH CAROLINA v. FRED C. SINK
There was sufficient evidence to deny defendant's motion to dismiss the charge of aiding
and abetting obtaining property by false pretenses based on a county worker performing a
household repair for defendant, a county commissioner, on county time. Defendant's own
statement and a prior bad act provided evidence from which intent and knowledge could be
Appeal by defendant from an order dated 10 March 2005 by Judge
W. David Lee in Davidson County Superior Court. Heard in the Court
of Appeals 27 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
Wyatt, Early, Harris, Wheeler, LLP, by John Bryson, for
Fred C. Sink (defendant) appeals from an order dated 10 March
2005 consistent with a jury verdict finding him guilty of aiding
and abetting obtaining property by false pretenses. For the
reasons stated herein, we find no error.
Defendant was a Davidson County Commissioner. Ronald Carol
Richardson (Richardson) was the Director of the Davidson County
Buildings and Maintenance Department. Richardson fixed a toilet in
defendant's residence. This is one of a number of times Richardsonadmitted using county property and county employees on county time
to perform services for himself, other friends and officials.
Richardson testified that in the early part of 2002, he ran
into defendant outside the Davidson County government center after
the adjournment of a morning meeting. Defendant told Richardson
that he was having some trouble with a toilet at his house that
would not stop running. Richardson asked defendant if he wanted
Richardson to take a look at the toilet. Richardson went to
defendant's house at around 10:30 a.m., in a county vehicle and on
county time, even though Richardson was not performing county
business. It was a regular work day and he had other county duties
to perform. Richardson fixed defendant's running toilet by
adjusting the float. Richardson was not on lunch break at the time
he performed the service; and defendant did not pay Richardson for
the personal service or ask Richardson to take vacation or leave
time. Richardson did not denote on his time sheets any time taken
off to perform the service for defendant.
At trial the State presented evidence that defendant, when
questioned by the SBI, stated that although he could not recall any
specifics, Richardson may have come to his house on county time and
in a county vehicle in 2002. Defendant stated it was possible he
even rode with Richardson in a county vehicle to fix the toilet at
defendant's house. Defendant stated he has always consideredRichardson a good friend and indicated that Richardson would have
done anything anyone asked.
The State provided additional evidence to which defendant did
not object. During the 1990's, Richardson was an employee under
Jessie Cecil (Director of Buildings and Maintenance for the county)
and defendant was the County Director of Emergency Management. At
that time, Richardson and Cecil went to defendant's house to fix
the toilet in defendant's upstairs bathroom. They went in a county
vehicle, on county time, when both of them had other county duties
to perform. In 2002, defendant brought Richardson upstairs, to the
same bathroom where Richardson and Cecil had fixed defendant's
toilet in the 1990's. Richardson testified he was never told by
defendant or by Cecil to take time off to perform the personal
service; and it was not part of his county duties to perform purely
personal services at the home of the Director of Emergency
Management. The trial court gave a limiting instruction in
accordance with Rule 404(b) that the prior act (1990's) evidence
was to be considered solely to show defendant's intent, plan,
scheme, or design with respect to the offense for which he was
being tried. After his conviction by a jury, defendant appeals.
The dispositive issue is whether the trial court erred in
denying defendant's motion to dismiss the charge of aiding andabetting obtaining property by false pretenses based on
insufficient evidence. At the outset, we note defendant submitted
a reply brief on 8 March 2006, two days after the time for filing
a reply brief had passed, pursuant to N.C. R. App. P. 28(h)(3).
Therefore, we grant the State's motion to strike defendant's reply
brief and decide the case on the original briefs and record which
were timely filed. Steingress v. Steingress
, 350 N.C. 64, 65, 511
S.E.2d 298, 299 (1999).
In considering a motion to dismiss, it is the duty of the
court to ascertain whether there is substantial evidence of each
essential element of the offense charged. State v. Smith
N.C. 71, 78, 265 S.E.2d 164, 169 (1980).
Substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id.
at 78-79, 265 S.E.2d at
In ruling on a defendant's motion to dismiss, the evidence is
viewed in the light most favorable to the State and the State is
allowed every reasonable inference. Id.
A person is guilty of a felony based on the common-law concept
of aiding and abetting where, (1) the crime was committed by
another person; (2) the defendant knowingly advised, instigated,
encouraged, procured or aided the other person; and (3) the
defendant's actions or statements caused or contributed to the
commission of the crime by the other person. State v. Francis
, 341N.C. 156, 161, 459 S.E.2d 269, 272 (1995).
Section 14-100 of the
North Carolina General Statutes, governing the offense of obtaining
property by false pretenses provides as follows:
If any person shall knowingly and designedly
by means of any kind of false pretense
whatsoever . . . obtain or attempt to obtain
from any person within this State any money,
goods, property, services, chose in action, or
other thing of value with intent to cheat or
defraud any person of such money, goods,
property, services, chose in action or other
thing of value, such person shall be guilty of
N.C. Gen. Stat. § 14-100 (2005).
Defendant argues the false pretense consists of Richardson
falsely filling out his time sheet at the conclusion of his pay
period and failing to note the time he spent fixing defendant's
toilet was personal time. Further, defendant argues that while the
State presented evidence that Richardson fixed defendant's toilet
and later claimed to be paid for doing so, the State failed to
present any evidence defendant was even aware of Richardson's false
claim, or that he was present with and aided or assisted Richardson
in making the false claim. Defendant's argument limits
Richardson's felonious intent to occurring completely or
spontaneously after fixing defendant's toilet by framing the felony
as only the falsification of time records. The indictment,
however, defines the false pretense not as falsifying the timesheet, but as performing the repair during normal working hours and
receiving regular county pay when such act was not county business
but strictly private work.
The statute provides a false pretense may be of a past or
subsisting fact or future fulfillment or event. N.C. Gen. Stat. §
14-100(a) (2005). In State v. Horton
, 73 N.C. App. 107, 326 S.E.2d
54 (1985), defendant purchased items from a department store,
paying by check, and shortly thereafter, reported to her bank that
the checks had been stolen and were therefore forgeries. Horton
110-11, 326 S.E.2d at 57. The defendant argued there was no
evidence to show she had made a misrepresentation to the department
store. Our court determined:
When a person presents a check to a merchant
in exchange for merchandise, [that person] is
representing that the amount of money
specified on the check will be given to the
merchant when that check is presented to the
If the drawer then commits some
act in the future, such as falsely reporting
that the check was stolen, which causes the
check to be dishonored and the merchant to
receive no money for the merchandise, [the
person] has made a misrepresentation as
contemplated under G.S.14-100.
In this case,
there was ample evidence from which the jury
could conclude that the defendant falsely
reported the checks as having been stolen
after having obtained merchandise in exchange
for the checks.
Similarly, in the case sub judice
, Richardson's false pretenseencompasses not only falsifying his time sheets, but includes
providing private services on public time. Richardson wrongfully
obtained public funds when he provided private services and later
falsified his time sheets.
When there is evidence that the individual knew about and
aided in the offense, or shared the intent and was in a position to
aid and encourage, the matter should go to a jury. State v.
, 295 N.C. 709, 719, 249 S.E.2d 429, 435 (1978). Therefore,
the State must show sufficient evidence of defendant's knowledge
and intent that he instigated and encouraged Richardson in
providing private services at taxpayer expense, while holding
himself out to be working for the county. Knowledge and intent, as
processes of the mind, are often not susceptible of direct proof
and in most cases can be proved only by inference from
circumstantial evidence. State v. Keel
, 333 N.C. 52, 61, 423
S.E.2d 458, 464 (1992).
The State presented evidence from which to
infer knowledge and intent through defendant's own statement and
through a prior bad act offered to prove intent. Upon questioning
by the SBI agent, defendant did not deny he asked Richardson to
come to his residence in 2002 and fix a toilet on county time.
Further, defendant stated although he could not recall any
specifics, Richardson may have come to his house on county time and
in a county vehicle, and it was possible he even rode withRichardson in a county vehicle to fix the toilet at his house. In
addition, the prior act evidence showed Richardson and another
county employee went to defendant's house and on county time, fixed
defendant's upstairs toilet _ the same toilet Richardson fixed in
2002. From this evidence a jury could rationally conclude that
defendant had the intent in 2002 to get a county employee, at
county expense and during normal working hours, to provide him with
purely private services. We conclude the evidence submitted by the
State was sufficient to survive defendant's motion to dismiss.
This assignment of error is overruled.
Chief Judge MARTIN and Judge HUDSON concur.
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