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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. HAROLD RAY ESTES
Filed: 16 October 2007
1. False Pretense--obtaining property by false pretenses--conspiracy to obtain property
by false pretenses--motion to dismiss--sufficiency of evidence--aiding and abetting
The trial court did not commit prejudicial error by denying defendant's motions to
dismiss the charges of obtaining property by false pretenses and conspiracy to obtain property by
false pretenses at the close of the evidence where the jury could infer through defendant's actions
and relationships to the parties that he knowingly and willingly laundered nearly one-half million
dollars through his personal and business banking accounts in aiding and abetting multiple
persons in obtaining property by false pretenses from the school system.
2. Indictment and Information_-constructive amendment through jury instructions--
change from acting in concert to aiding and abetting--obtaining property by false
The trial court did not constructively amend the allegation in the indictment from acting
in concert to aiding and abetting obtaining property by false pretenses through the jury
instructions, because: (1) the bill of indictment charged defendant with the offense of obtaining
property by false pretenses under N.C.G.S. § 14-100; (2) the charge was not substantially altered
when neither acting in concert nor aiding and abetting are essential elements to the crime of
obtaining property by false pretenses, and either theory of criminal liability is treated as
surplusage; (3) defendant failed to show that instructing the jury on the basis of one of these
theories of guilt substantially altered the charged offense, and our Supreme Court has stated the
distinction between a defendant being found guilty of aiding and abetting and acting in concert is
of little significance; (4) defendant had timely notice of the charges brought against him to enable
him to adequately prepare his defense for trial; and (5) defendant was not convicted of a crime
different from that alleged in the bill of indictment.
3. Criminal Law--clerical error in judgment--embezzlement--obtaining property by
The trial court erred by entering judgment against defendant for embezzlement when he
was charged with and found to be guilty by a jury of obtaining property by false pretenses, and
the case is remanded to the trial court for the limited purpose of corrected this clerical error in the
judgment and commitment.
Appeal by defendant from judgments entered 25 August 2006 by
Judge Donald W. Stephens in Wake County Superior Court. Heard in
the Court of Appeals 13 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General
David N. Kirkman, for the State.
The Martin Law Firm, P.A., by J. Matthew Martin and Harry C.
Martin, for defendant-appellant.
Harold Ray Estes (defendant) appeals from judgments entered
after a jury found him to be guilty of obtaining property by false
pretenses pursuant to N.C. Gen. Stat. § 14-100 and conspiracy to
obtain property by false pretenses pursuant to N.C. Gen. Stat. §
14-2.4 and § 14-100. We find no error at trial and remand for
correction of a clerical error in 05 CRS 082472.
Defendant was involved in a scheme involving prebill phoney
invoices to defraud the Wake County Board of Education and the Wake
County Public School System (the School System) out of millions
of dollars, perpetrated by employees of Barnes Motor & Parts Co.
(Barnes) and employees of the School System's Department of
Transportation (the School Bus Garage).
Several employees of the School Bus Garage became suspicious
of their co-workers' activities. Doug Kenney (Kenney), Director
of Internal Audit for Wake County, initiated an investigation into
the business relationship between Barnes and the School Bus Garage.
Kenney conducted a physical review of invoices from and checks
to Barnes and discovered some unusual activity, which
specifically included: (1) all invoices from Barnes were under
$2,500.00; (2) some invoices only listed part numbers without part
descriptions; (3) some invoices were exactly the same amount with
different part numbers; (4) many invoices appeared to have beenentered within a few minutes of each other; and (5) multiple
attempts to match part numbers with identifiable inventory or
installed parts failed.
Kenney prepared charts analyzing the dollar amounts paid to
Barnes on their invoices by the School System in June 2003 and June
2004, the end of the respective fiscal years. In June 2003, Barnes
was paid $3.2 million dollars. This amount was several times
larger than amounts paid in previous months. Kenney found a
similar pattern from July 2003 to June 2004.
Kenney also reviewed the billing system and found Barnes
billed the School System prior to delivery of merchandise, which
was contrary to the [S]chool [S]ystem procedure. Kenney
discovered many items identified in the prepayment account had not
been received and the part numbers listed on the invoices were
Bobby Browder (Browder) testified for the State against
defendant pursuant to his guilty plea. Browder served as Vice
President of Store Operations for Barnes and supervised its store
in Raleigh. At trial, Browder admitted involvement in a scheme to
bill the School System for merchandise neither delivered nor
Browder testified unspent money in the budget would be lost if
not spent by the end of each fiscal year. Browder agreed for
Barnes to prebill the School System for merchandise and
essentially give the School Bus Garage credit to purchase against
the following fiscal year. Browder explained that the prebillmonies were not placed in escrow for the School System, but were
deposited directly into Barnes's checking account.
Barnes began to supply the School System with computers,
furniture, equipment, and personal items as a part of the prebill
scheme. Barnes profited by purchasing these items at retail prices
and charging the School System an additional thirty percent.
Subsequently, Barnes used the prebill money to buy items other
than supplies for the School System such as a moped, a four-
wheeler, carpet, campers, boats, and gift cards with an aggregate
value of over $100,000.00. The prices of the vehicles,
merchandise, and gift cards were billed to the School System
through fictitious invoices or by deducting the money from the
credit accrued from the prebill.
Browder testified that he met defendant through Connie Capps
(Capps), a fellow Barnes employee. Defendant was Capps's
boyfriend at the time. Beginning in June 2003, Browder started
writing checks to defendant, Harold Estes Enterprises, and
defendant's Wells Fargo credit card account. Browder testified he
did not believe defendant was in the business of buying for or
selling merchandise to the School System or to Barnes. Browder
wrote checks payable to defendant to reimburse him for items he had
purchased for Wake County. Checks in the amount of $10,000.00 or
greater were charged back to the School System. Browder testified
he knew he was funding and paying for personal items for the
benefit of others from the School System's funds or credits. State Bureau of Investigation Special Agent Gil Whitford
(Agent Whitford) investigated this case on behalf of the Wake
County District Attorney. Agent Whitford testified he went to
defendant's and Capps's residence to interview them. Agent
Whitford became suspicious when he discovered numerous vehicles
parked and other various items stored in defendant and Capps's
backyard including: (1) two new F-150 Ford pick-up trucks; (2) a
motor home; (3) a Haul Master trailer; (4) a Suzuki Quadrunner; (5)
a Suzuki Quadmaster; (6) a Monterey motorboat; (7) a golf cart; (8)
three Honda scooters; (9) a Chevrolet Z-71 pickup truck; (10) two
large motorcycles; (11) two medium-sized motorcycles; (12) one Zuma
scooter; and (13) a rover.
Agent Whitford interviewed defendant on two separate occasions
at his attorney's office. In the interview, defendant stated that
he was self-employed, formerly owned a body shop, and was involved
in various real estate ventures. When asked about the checks he
had received from Barnes, defendant admitted involvement in an
arrangement to facilitate the purchase of items for Carol Finch
(Finch), the Budget and Technology Analyst for the School Bus
Garage. Defendant stated he would purchase these items and Barnes
would reimburse him, or in many cases, would pay him in advance for
expenses he had purportedly incurred on behalf of the School Bus
During 2003, Barnes paid defendant a total of $260,612.00.
During that time period, defendant paid out $192,117.87, leaving a
difference of $68,494.13. Similarly, in 2004, Barnes paiddefendant $274,900.00. Defendant paid out $200,634.61, leaving a
difference of $74,265.39. Over the span of two years, defendant
acquired $142,759.52 by laundering money through his personal and
business bank accounts.
Defendant asserted all payments made were on behalf of Finch
or the School Bus Garage. Agent Whitford inquired into every
expenditure defendant had made during this two-year period and
found defendant had a very close relationship with both Capps and
Finch, two women who played major roles in the prebill scheme.
Agent Whitford found defendant participated in expensive shopping
trips with Capps and Finch. Defendant would often buy thousands of
dollars worth of vehicles and merchandise on behalf of Finch and
keep them for himself. Agent Whitford also found defendant
traveled with Capps and Finch to exotic locations and spent more
than $15,000.00 dollars on these trips. These expenditures were
all financed by the monies laundered through defendant's bank
accounts for Barnes.
On 25 August 2006, a jury found defendant to be guilty of
obtaining property by false pretenses and conspiracy to obtain
property by false pretenses. Defendant was sentenced to seventy-
three months minimum and ninety-seven months maximum imprisonment
and a $500,000.00 fine for embezzlement. Defendant was also
sentenced to a consecutive sentence of sixty-four months minimum
and eighty-six months maximum for conspiracy to obtain property by
false pretenses. Defendant appeals.
Defendant argues the trial court erred by: (1) denying his
motions to dismiss at the close of the evidence; (2) constructively
amending the allegation in the indictment from acting in concert to
aiding and abetting obtaining property by false pretenses through
the jury instructions; and (3) entering judgment against him for
embezzlement when he was charged with and found to be guilty by
a jury of obtaining property by false pretenses.
III. Motions to Dismiss
 Defendant argues the trial court committed prejudicial
error by denying his motions to dismiss at the close of the
evidence. We disagree.
A. Standard of Review
Upon defendant's motion for dismissal, the
question for the court is whether there is
substantial evidence (1) of each essential
element of the offense charged, or of a lesser
offense included therein, and (2) of
defendant's being the perpetrator of such
offense. If so, the motion is properly
denied. . . . The evidence is to be
considered in the light most favorable to the
State; the State is entitled to every
reasonable intendment and every reasonable
inference to be drawn therefrom;
contradictions and discrepancies are for the
jury to resolve and do not warrant dismissal;
and all of the evidence actually admitted,
whether competent or incompetent, which is
favorable to the State is to be considered by
the court in ruling on the motion.
State v. Powell, 299 N.C. 95, 98-99, 261 S.E.2d 114, 117 (1980)
(internal citations and quotations omitted).
At the close of the State's evidence, the trial court denied
defendant's motions to dismiss and stated the relationship of theparties and the conduct of the defendant [were] sufficient [to]
infer that the defendant knowingly aided in the commission of the
crime of the taking property by false pretense . . . . (Emphasis
supplied). Our Supreme Court has stated the elements of aiding and
abetting are: (1) the crime was committed by some other person;
(2) the defendant knowingly advised, instigated, encouraged,
procured, or aided the other person to commit that crime; and (3)
the defendant's actions or statements caused or contributed to the
commission of the crime by that other person. State v. Francis,
341 N.C. 156, 161, 459 S.E.2d 269, 272 (1995).
For a defendant to be found guilty of aiding and abetting, he
must aid or actively encourage the person committing the crime or
in some way communicate to this person his intention to assist in
its commission. The communication or intent to aid . . . may be
inferred from his actions and from his relation to the actual
perpetrators. State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414,
422 (1999) (internal citations omitted).
The State's evidence tended to show defendant lived with Capps
and had a very close relationship with Finch, two of the scheme's
principal players. Capps and Finch would bring the phoney invoices
home to defendant's residence for finalizing and processing.
Defendant would accompany Capps and Finch on various shopping
trips, where he willingly purchased several expensive automobiles
on behalf of Finch that were actually titled in his or Capps's
name. Defendant gave Finch several thousand dollars in cash for
the Fourth of July weekend and on several other occasions for nospecific reason. Defendant helped pay off Finch's loans,
subsequently found to be Capps's son's loans. Defendant also
purchased Finch an expensive RV and paid rental for the lot on
which it was parked.
Subsequently, defendant purchased yet another RV on Finch's
behalf, which sat permanently on a lot in Myrtle Beach, South
Carolina. Agent Whitford found that defendant and Capps often
travelled to Myrtle Beach and stayed in this particular RV.
Defendant purchased jet skis, golf carts, and several vehicles
titled in Finch's name for his use when he traveled to Myrtle
Beach. Agent Whitford also found defendant, Capps, and Finch
traveled to Mexico and Key West together and spent between
$15,000.00 and $17,000.00. Defendant was reimbursed for all of
these expenditures from Barnes, who charged these expenses back to
the School System.
Through defendant's actions and relationships to the parties,
the jury could infer he knowingly and willingly laundered nearly
one-half million dollars through his personal and business banking
accounts in aiding and abetting Brower, Capps, and Finch in
obtaining property by false pretenses from the School System.
Francis, 341 N.C. at 161, 459 S.E.2d at 272. Viewed in the light
most favorable to the State, the evidence at trial was sufficient
to withstand defendant's motions to dismiss for insufficiency of
the evidence and to submit the charge of aiding and abetting to the
jury. Powell, 299 N.C. at 98, 261 S.E.2d at 117. This assignment
of error is overruled.
IV. Aiding and Abetting Instructions
 Defendant argues the trial court committed prejudicial
error in violation of his constitutional rights by constructively
amending the allegation in the indictment from acting in concert to
aiding and abetting obtaining property by false pretenses through
its charge to the jury. Defendant argues the jury convicted him on
a basis different from that alleged in the bill of indictment. We
A. Standard of Review
N.C. Gen. Stat. § 15A-923(e) (2005) prohibits the amendment of
a bill of indictment. Our Supreme Court has interpreted this
statute to mean a bill of indictment may not be amended in a
manner that substantially alters the charged offense. In
determining whether an amendment is a substantial alteration, we
must consider the multiple purposes served by indictments, the
primary one being to enable the accused to prepare for trial.
State v. Silas, 360 N.C. 377, 380, 627 S.E.2d 604, 606 (2006)
(emphasis supplied) (internal citations and quotations omitted).
A criminal bill of indictment is sufficient if it express[es]
the charge against the defendant in a plain, intelligible, and
explicit manner. N.C. Gen. Stat. § 15-153 (2005). Specifically,
the indictment must allege all of the essential elements of the
crime sought to be charged. Allegations beyond the essential
elements of the crime sought to be charged are irrelevant and may
be treated as surplusage. State v. Westbrooks, 345 N.C. 43, 57,478 S.E.2d 483, 492 (1996) (internal citations and quotations
omitted) This requirement ensures that a defendant may adequately
prepare his defense. Id. at 58, 478 S.E.2d at 492.
Here, the bill of indictment charged defendant with the
offense of obtaining property by false pretenses pursuant to N.C.
Gen. Stat. § 14-100. The essential elements of obtaining property
by false pretenses are:
(1) that the representation was made as
alleged; (2) that property or something of
value was obtained by reason of the
representation; (3) that the representation
was false; (4) that it was made with intent to
defraud; [and] (5) that it actually did
deceive and defraud the person to whom it was
State v. Carlson, 171 N.C. 818, 824, 89 S.E. 30, 33 (1916).
Neither acting-in-concert nor aiding and abetting are essential
elements to the crime of obtaining property by false pretenses.
Accordingly, we treat either theory of criminal liability as
surplusage. Westbrooks, 345 N.C. at 57, 478 S.E.2d at 492.
Because our Supreme Court has stated that allegations of
whether a defendant was acting in concert or aiding and abetting
are irrelevant and surplusage, defendant has failed to show that
instructing the jury on the basis of one of these theories of guilt
substantially alters the charged offense. Silas, 360 N.C. at
380, 627 S.E.2d at 606. Defendant's argument that he was unable to
adequately prepare his defense for trial against one of the two
theories of criminal liability to convict him of obtaining property
by false pretenses is without merit. Our Supreme Court has stated
'[t]he distinction between [a defendant being found guilty of]aiding and abetting and acting in concert . . . is of little
significance. Both are equally guilty.' State v. Bonnett, 348
N.C. 417, 440, 502 S.E.2d 563, 578 (1998) (quoting State v.
Williams, 299 N.C. 652, 656, 263 S.E.2d 774, 777 (1980)), cert.
denied, 525 U.S. 1124, 142 L. Ed. 2d 907 (1999).
Since our Supreme Court has found little significance in the
two theories upon which to establish guilt and that allegations of
either of these theories of culpability should be treated as
irrelevant and surplusage, defendant's argument that the bill of
indictment was amended in a manner that substantially alters the
charged offense by the trial court's instructions to the jury is
without merit. Silas, 360 N.C. at 380, 627 S.E.2d at 606.
Defendant had timely notice of the charges brought against him to
enable him to adequately prepare his defense for trial. Id.
Defendant was not convicted of a crime different from that alleged
in the bill of indictment. Defendant was charged with and
convicted of obtaining property by false pretenses. This
assignment of error is overruled.
V. Judgment and Commitment Order
 Defendant argues the trial court erred by entering
judgment against him for embezzlement when he was charged with
and found to be guilty by a jury of obtaining property by false
pretenses. The State acknowledges this clerical error and joins in
defendant's argument to remand for clarification of the record.
N.C. Gen. Stat. § 15A-1301 (2005) states, in relevant part,
[w]hen the commitment is to a sentence of imprisonment, thecommitment must include the identification and class of the offense
or offenses for which the defendant was convicted. Here, the
transcript and the jury's verdict form indicate defendant was found
to be guilty by a jury of obtaining property by false pretenses.
The trial court made a clerical error by listing the charge in the
judgment and commitment in 05 CRS 082472 as embezzlement pursuant
to N.C. Gen. Stat. § 14-90 rather than obtaining property by false
pretenses pursuant to N.C. Gen. Stat. § 14-100. This case is
remanded to the trial court for the limited purpose of correcting
this clerical error in the judgment and commitment in 05 CRS
The trial court properly denied defendant's motions to dismiss
for insufficiency of the evidence. The State presented sufficient
evidence at trial that defendant knowingly aided multiple persons
in obtaining property by false pretenses, by laundering nearly one-
half million dollars through his personal and business banking
accounts. The trial court did not constructively amend the bill of
indictment by submitting aiding and abetting instructions to the
The trial court erred by listing the incorrect offense of
which defendant was convicted in the judgment and commitment in 05
CRS 082472. This case is remanded to the trial court for the
limited purpose of correcting this clerical error.
No Error and Remanded for Correction of Clerical Error.
Judges HUNTER and GEER concur.
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