STATE OF NORTH CAROLINA
v. Robeson County
No. 95 CRS 15736
JAMES DAVID BLAKE, JR.,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
David D. Lennon, for the State.
Sue Genrich Berry for defendant-appellant.
BRYANT, Judge.
James David Blake, Jr. (defendant) was found guilty on 22
October 1996 of felonious conversion by a bailee. He was sentenced
to imprisonment for a minimum term of six months and a maximum term
of eight months. The sentence was suspended and defendant was
placed on supervised probation for twenty-four months. Notice of
appeal was timely given and the transcript was delivered on 21
April 1997. The appeal was dismissed by Judge Robert F. Floyd, Jr.
on 25 May 2004 due to defendant's failure to perfect the appeal.
In an order dated 19 July 2005, Judge Floyd set aside his prior
order dismissing the appeal.
The State presented evidence tending to show that on 11 March
1995, defendant and Stephen Maynor entered into a written agreementwhereby defendant would operate a pizza restaurant business owned
by Maynor and would make payments towards the purchase of the
business and its equipment. The agreement contained the following
provision:
Upon Blake's successful compliance with the
terms and conditions herein contained, on
August 31, 1996, Blake shall become the record
owner of the personal property, described on
that certain document, attached hereto
identified as Exhibit A, incorporated herein
by reference, and Maynor will relinquish all
right, title and interest in same.
Said personal property, during the pendency of
this contract, shall remain on said premises
for the use of Blake and are acknowledged to
be the property of Maynor.
Blake agrees to maintain and to repair as
needed, said property, reasonable wear and
tear excepted.
Among the items listed in Exhibit A was an “Anets Dough Sheeter.”
The agreement also provided that if defendant failed to honor the
terms and conditions of the agreement or if he failed to pay any
sums due within a grace period of thirty days, then defendant
“shall be deemed to have defaulted.”
Defendant fell in arrears on his payments, and on 3 June
1995 Maynor entered the restaurant premises to resume possession.
Two employees of the restaurant, but not defendant, were present.
The property listed in Exhibit A was inventoried and the Anets
Dough Sheeter was not located. Maynor attempted to locate the
dough sheeter and asked defendant about it. Defendant admitted
that he removed the dough sheeter from the restaurant and placed it
in storage. Defendant never returned the dough sheeter to Maynor. Defendant never made any payments toward the purchase of the
restaurant equipment. Maynor estimated the value of the dough
sheeter as approximately $2800.00.
Defendant did not present any evidence.
Every person entrusted with any property as bailee,
lessee, tenant or lodger, or with any power of attorney
for the sale or transfer thereof, who fraudulently
converts the same, or the proceeds thereof, to his own
use, or secretes it with a fraudulent intent to convert
it to his own use, shall be guilty of a Class 1misdemeanor.
If, however, the value of the property converted or
secreted, or the proceeds thereof, is in excess of four
hundred dollars ($400.00), every person so converting or
secreting it is guilty of a Class H felony. In all cases
of doubt the jury shall, in the verdict, fix the value of
the property converted or secreted.
N.C. Gen. Stat. § 14-168.1 (1999). This Court has previously held
that felonious conversion by a bailee,
like larceny and embezzlement, occurs when a
defendant offends the ownership rights of
another. The statute applies to certain
specified relationships involving an owner of
property and a non-owner, e.g., bailee,
lessee, and tenant. Moreover, an essential
component of the crime is the intent to
convert or the act of conversion, which by
definition requires proof that someone other
than a defendant owned the relevant property.
State v. Woody, 132 N.C. App. 788, 789-90, 513 S.E.2d 801, 803
(1999).
Defendant contends the evidence is insufficient to establish:
(1) the owner of the dough sheeter entrusted defendant with the
property as a bailee; and (2) defendant converted the property to
his own use with the intent to defraud the owner.
A “bailment” has traditionally been defined as
[a] delivery of goods or personal property, by
one person (bailor) to another (bailee), in
trust for the execution of a special object
upon or in relation to such goods, beneficial
either to the bailor or bailee or both, and
upon a contract, express or implied, to
perform the trust and carry out such object,
and thereupon either to redeliver the goods to
the bailor or otherwise dispose of the same in
conformity with the purpose of the trust. The
bailee is responsible for exercising due care
toward the goods.
Black's Law Dictionary 141-42 (6th ed. 1991) (emphasis added). Defendant quotes this definition in his brief and argues that he
did not receive property pursuant to an agreement by which he was
to return the property to Maynor at the completion of the agreed
terms of the agreement. He also argues there is no evidence of
intent to defraud because Maynor testified that defendant told him
the dough sheeter was in storage.
We are not persuaded by defendant's arguments. We are
satisfied that a jury may find from the evidence presented that
Maynor, as the owner of the dough sheeter, entrusted defendant with
the item until such time as defendant became the owner of the
property following full compliance with all of the terms and
conditions of the agreement, including payment of all sums due in
a timely manner. Defendant defaulted on the agreement by failing
to make the required payments. Defendant also failed to keep all
of the identified personal property on the premises as required by
the express terms of the agreement and defendant failed to deliver
the missing entrusted property to Maynor upon demand.
Intent to defraud “'may be shown by direct evidence, or by
evidence of facts and circumstances from which it may reasonably be
inferred.'” State v. Morris, 156 N.C. App. 335, 340, 576 S.E.2d
391, 395 (2003) (quoting State v. McLean, 209 N.C. 38, 40, 182 S.E.
700, 702 (1935)). Maynor testified that defendant admitted he had
removed the dough sheeter from the restaurant. At one time
defendant told him that he placed it in a storage area above the
restaurant and another time defendant told him that he had it
stored at his parents' home. Maynor made numerous unsuccessfulefforts to talk to defendant after Maynor resumed operation of the
business. Maynor also enlisted the help of defendant's parents in
an unsuccessful effort to persuade defendant to talk with Maynor.
Defendant failed to pay any money toward the purchase of the
equipment and failed to appear for an interview with a police
detective regarding this matter. The police detective subsequently
located defendant in Richmond, Virginia. We conclude an intent to
defraud may be found based upon the evidence of defendant's
inconsistent stories, his unwillingness to talk to Maynor and the
police detective, and his flight to another state while the
investigation was pending.
No error.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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