State v. Golder ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 79PA18
Filed 3 April 2020
STATE OF NORTH CAROLINA
v.
KENNETH VERNON GOLDER
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, 257 N.C. App. 803, 809 S.E.2d 502 (2018), affirming
judgments entered on 12 October 2015 by Judge Henry W. Hight Jr. in the Superior
Court, Wake County. On 9 May 2019, the Supreme Court allowed the State’s
conditional petition for discretionary review. Heard in the Supreme Court on
9 December 2019.
Joshua H. Stein, Attorney General, by Michael T. Henry, Assistant Attorney
General, for the State-appellee.
Anne Bleyman for defendant-appellant.
Glenn Gerding, Appellate Defender; and Southern Coalition for Social Justice,
by John F. Carella and Ivy A. Johnson, for North Carolina Advocates for
Justice, amicus curiae.
HUDSON, Justice.
Pursuant to petitions for discretionary review filed by defendant and the State,
we review the following issues: (1) whether the Court of Appeals erred in holding that
defendant failed to preserve his challenges to the sufficiency of the State’s evidence;
(2) whether the State presented sufficient evidence that defendant aided and abetted
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Opinion of the Court
another; and (3) whether the State presented sufficient evidence that defendant
obtained a thing of value to support his obtaining property by false pretenses
conviction. We conclude that defendant did preserve his challenges to the sufficiency
of the evidence for appeal. However, because we conclude that the State presented
sufficient evidence that defendant aided and abetted another and that he obtained a
thing of value, we modify and affirm the decision of the Court of Appeals.
Factual and Procedural Background
On 25 February 2014, the Wake County grand jury returned a bill of
indictment charging defendant with (1) obtaining property worth over $100,000 by
false pretenses in violation of N.C.G.S. § 14-100; (2) accessing a government computer
in violation of N.C.G.S. § 14-454.1; (3) altering court records in violation of N.C.G.S.
§ 14-221.2; (4) a misdemeanor bail bond violation under N.C.G.S. § 58-71-95; and (5)
a misdemeanor for performing bail bonding without being qualified and licensed
under N.C.G.S. § 58-71-40. The indictment arose from allegations that defendant and
Kevin Ballentine, a public employee with the Wake County Clerk’s Office, devised a
scheme in which defendant would pay Ballentine to alter or falsify court documents
to secure remission of bail bond forfeitures.
Before we summarize the evidence presented at trial, we briefly outline the
statutory bail bond forfeiture procedures. Specifically, if a defendant is released on a
bail bond under Chapter 15A, Article 26 of the General Statutes and “fails on any
occasion to appear before the court as required, the court shall enter a forfeiture for
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the amount of that bail bond in favor of the State against the defendant and against
each surety on the bail bond.” N.C.G.S. § 15A-544.3(a) (2017). For purposes of this
case, a surety on a bail bond includes a “ ‘Professional bondsman’ mean[ing] any
person who is approved and licensed by the Commissioner of Insurance under Article
71 of Chapter 58 of the General Statutes” and who provides cash or approved
securities to secure a bail bond. N.C.G.S. § 15A-531(7)–(8) (2017); see also id. § 15A-
531(8) (“ ‘Surety’ means . . . insurance compan[ies], . . . professional bondsm[e]n, . . .
[and] accommodation bondsmen.”). The defendant and the sureties are notified of the
entry of forfeiture by receiving a copy of the forfeiture by first-class mail. Id. § 15A-
544.4(a)–(b) (2017). Importantly, the entry of forfeiture must contain “[t]he date on
which the forfeiture will become a final judgment . . . if not set aside before that date.”
Id. § 15A-544.3(b)(8).
Under certain exclusive, statutorily-enumerated circumstances, an entry of
forfeiture may be set aside, including by motion of either the defendant or a surety.
N.C.G.S. § 15A-544.5 (b), (d) (2017); see also id. § 15A-544.5(c) (allowing relief from
an entry of forfeiture in the event that the trial court enters an order striking the
defendant’s failure to appear). If neither the district attorney nor the county board of
education files a written objection to the motion to set aside “by the twentieth day
after a copy of the motion is served by the moving party[,] . . . the clerk shall enter
an order setting aside the forfeiture, regardless of the basis for relief asserted in the
motion, the evidence attached, or the absence of either.” Id. § 15A-544.5(d)(4).
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The evidence at trial here tended to show that Ballentine, who worked for the
Wake County Clerk’s Office in various capacities from 1999 until 2013, was involved
in a scheme with defendant to exploit the automatic set-aside provision under
N.C.G.S. § 15A-544.5(d)(4) in exchange for cash. Ballentine understood defendant to
be working in the bail bond industry. Evidence produced at trial tended to show that
defendant was not a licensed bail bondsman. Ballentine testified that the scheme
began in 2006 or 2007 and continued until 2012. During that period, through text
messages, defendant sent Ballentine lists with the names and file numbers of cases
in which a bond forfeiture had been entered. After receiving a list of cases from
defendant, Ballentine would enter a motion to set aside the bond forfeiture for each
of the cases into the Wake County Clerk’s Office’s electronic records system, known
as VCAP. Because no motion had actually been filed in the case by the parties, neither
the district attorney nor the county board of education would receive notice of the
motion and were without an opportunity to object. Therefore, after twenty days, the
bond forfeiture would automatically be set aside. See N.C.G.S. § 15A-544.5(d)(4). As
a result, defendant’s bail bonding company would not be required to pay the bond as
it otherwise would have been required to do if the forfeiture remained in effect.
In exchange for entering the motions to set aside into VCAP, defendant would
pay Ballentine $500 for each list of cases. Ballentine testified that he received
payment “normally once every other week” while he and defendant carried out this
scheme. The payments were made in cash either by defendant leaving an envelope
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with the payment in Ballentine’s truck, or meeting Ballentine in person. Ballentine
ended his arrangement with defendant in November of 2012. Ballentine was
eventually terminated from his position at the Wake County Clerk’s Office as a result
of his involvement in the scheme with defendant, as well as other similar schemes.
In September of 2013, he began cooperating with the State Bureau of Investigation
concerning his involvement in the schemes.
At the close of the State’s evidence at trial, defendant moved to dismiss. In
moving to dismiss, defense counsel stated the following:
Your Honor, at this time we certainly would like to make
our motion to dismiss. As we are all aware, following the
State’s case in chief, this is our time to make such a motion.
In giving the State the benefit of all reasonable inferences,
we are quite confident that several of these charges should
be dismissed, if not all, immediately.
Defense counsel then went on to address the individual charges, but did not
specifically argue that the State failed to present sufficient evidence that defendant
aided and abetted Ballentine in obtaining property by false pretenses, accessing a
government computer, or altering court records. Defense counsel did, however,
challenge defendant’s obtaining property by false pretenses charge on the basis of
several specific grounds. Defense counsel argued that the State’s evidence was
insufficient to prove that defendant obtained (1) a thing of value, because, at the time
that Ballentine entered the motions to set aside the bond forfeitures, the prejudgment
notice of forfeiture did not entitle the Wake County school board to an immediate
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interest in the bond amount; and (2) $100,000 worth of property. The trial court
denied defendant’s motion to dismiss. Defendant then presented evidence and
testified on his own behalf.
At the close of all evidence, defendant again moved to dismiss the charges in
open court. In making this motion, defense counsel stated that “[a]t this time we
would certainly like to reiterate or readdress our motions . . . to dismiss.” Defense
counsel then went on to repeat defendant’s earlier argument against his obtaining
property by false pretenses charge, asserting that the State did not present sufficient
evidence that defendant obtained property with a value of $100,000 or more.
However, defense counsel did not specifically argue—as defense counsel did in the
first motion to dismiss—that the State failed to prove that defendant obtained a thing
of value. The trial court again denied defendant’s motion to dismiss.
The jury then found defendant guilty of (1) obtaining property worth less than
$100,000 by false pretenses; (2) accessing a government computer; (3) altering court
records; and (4) unlicensed bail bonding. The trial court sentenced defendant to
consecutive terms of imprisonment totaling thirty-five to forty-three months for
obtaining property by false pretenses, accessing a government computer, and altering
court records. Defendant received an additional consecutive forty-five-day sentence
as a result of his misdemeanor unlicensed bail bonding conviction. Defendant was
also ordered to pay $480,100 in restitution. Defendant appealed his convictions to the
Court of Appeals.
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At the Court of Appeals, defendant argued, in pertinent part, that the State
failed to present sufficient evidence that he (1) aided and abetted Ballentine in
committing the felonies of obtaining property by false pretenses, accessing a
government computer, or altering court records; and (2) obtained a thing of value, as
required under the obtaining property by false pretenses statute. In support of his
argument that the State failed to present sufficient evidence that he obtained
anything of value, defendant repeated the same argument made by defense counsel
to the trial court in the first motion to dismiss. Specifically, defendant argued that,
at the time the false representations were made, neither the State nor the Wake
County school board was entitled to an “immediate interest” in the bond amount.
The Court of Appeals disagreed, concluding that defendant waived his
challenge to the sufficiency of the State’s evidence of aiding and abetting “[b]ecause
[d]efendant made several specific arguments when moving the trial court to dismiss
certain charges, but did not challenge the State’s aiding and abetting theory.” State
v. Golder, 257 N.C. App. 803, 811, 809 S.E.2d 502, 508 (2018). With regard to
defendant’s argument that the State’s evidence was insufficient to prove that he
obtained a thing of value, the Court of Appeals concluded that defendant waived his
right to appellate review. Id. at 813–14, 809 S.E.2d at 508–09. Specifically, the Court
of Appeals recognized that defense counsel argued in the first motion to dismiss “that
elimination of contingent future interest in property does not fulfill the obtaining
‘property’ requirement.” Id. at 813, 809 S.E.2d at 509. However, the Court of Appeals
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then reasoned that the second motion to dismiss, in which defense counsel only
argued “that the dollar amount attributed to the thing of value obtained was less than
alleged in the indictment, [ ] narrowed the scope of his objection, and that objection
is all that would be reviewable by this Court.” Id. at 813, 809 S.E.2d at 509.
Accordingly, the Court of Appeals concluded that the only issue that was presented
for review was the actual value of the property obtained and “[d]efendant [could not]
argue [on appeal] that the evidence was insufficient because there was no thing of
value.” Id. at 813, 809 S.E.2d at 509.
We conclude that defendant preserved each of his challenges to the sufficiency
of the evidence. However, because we conclude that the State presented sufficient
evidence that defendant aided and abetted Ballentine, and that he obtained a thing
of value, we modify and affirm the decision of the Court of Appeals.
Analysis
I. Plain error
In defendant’s petition for discretionary review, he requested that we review
the issue of “[w]hether the Court of Appeals erred in announcing a new rule that the
sufficiency of the evidence could be reviewed on appeal for plain error.” Because the
Court of Appeals did not actually announce a new rule that the sufficiency of the
evidence can be reviewed for plain error, we conclude that the Court of Appeals did
not err on this issue.
A. Standard of Review
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“This Court reviews the decision of the Court of Appeals to determine whether
it contains any errors of law.” State v. Melton, 371 N.C. 750, 756, 821 S.E.2d 424, 428
(2018) (citing N.C. R. App. P. 16(a); State v. Mumford, 364 N.C. 394, 398, 699 S.E.2d
911, 914 (2010)).
B. Discussion
We conclude that the Court of Appeals did not err because the court did not
announce a new rule that sufficiency of the evidence issues can be reviewed under
the plain error standard of review. Instead, the Court of Appeals merely recited Rule
10(a)(4) of the North Carolina Rules of Appellate Procedure and noted that
“[d]efendant has not argued plain error.” Golder, 257 N.C. App. at 811, 809 S.E.2d at
508. We do not interpret the court’s statement that defendant did not argue plain
error as the pronouncement of a new rule governing appellate review. However, we
take this opportunity to reiterate that “[a]n appellate court will apply the plain error
standard of review to unpreserved instructional and evidentiary errors in criminal
cases.” State v. Maddux, 371 N.C. 558, 564, 819 S.E.2d 367, 371 (2018) (citing State
v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012)). Further, this Court has
expressly held that Rule 10(a)(3) (previously codified at Rule 10(b)(3)) governs the
preservation of a sufficiency of the evidence issue, to the exclusion of plain error
review. See State v. Richardson, 341 N.C. 658, 676–66, 462 S.E.2d 492, 504 (1995).
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Because the Court of Appeals did not announce a new rule allowing for plain
error review of sufficiency of the evidence issues, we conclude that the court did not
err.
II. Preservation
We conclude that defendant preserved each of his challenges to the sufficiency
of the State’s evidence with regard to both (1) the State’s theory that he aided and
abetted Ballentine in committing the offenses; and (2) that he obtained a thing of
value. As discussed below, Rule 10(a)(3) of the Rules of Appellate Procedure provides
that when a defendant properly moves to dismiss, the defendant’s motion preserves
all sufficiency of the evidence issues for appellate review. The Court of Appeals’
conclusion to the contrary relied on (1) inapposite case law from our Court; and (2) a
line of cases in which the Court of Appeals misinterpreted the extent to which a
defendant’s motion to dismiss preserves sufficiency of the evidence issues for
appellate review.
A. Standard of Review
The standard of review for this issue is the same as the last issue.
B. Discussion
We conclude that defendant properly preserved each of his challenges to the
sufficiency of the State’s evidence for appellate review.
Rule 10(a)(3) of the North Carolina Rules of Appellate Procedure provides that,
in a criminal case, to preserve an issue concerning the sufficiency of the State’s
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evidence, the defendant must make “a motion to dismiss the action . . . at trial.” N.C.
R. App. P. 10(a)(3). Rule 10(a)(3) also provides that:
If a defendant makes such a motion after the State has
presented all its evidence and has rested its case and that
motion is denied and the defendant then introduces
evidence, defendant’s motion for dismissal . . . made at the
close of [the] State’s evidence is waived. Such a waiver
precludes the defendant from urging the denial of such
motion as a ground for appeal.
Id.However, although Rule 10(a)(3) requires a defendant to make a motion to
dismiss in order to preserve an insufficiency of the evidence issue, unlike
Rule 10(a)(1)–(2), Rule 10(a)(3) does not require that the defendant assert a specific
ground for a motion to dismiss for insufficiency of the evidence. Id.; compare N.C. R.
App. P. 10(a)(3) with N.C. R. App. P. 10(a)(1)–(2) (requiring, as a general rule, that a
defendant state the “grounds” for an objection, particularly when objecting to a jury
instruction).
Accordingly, our Rules of Appellate Procedure treat the preservation of issues
concerning the sufficiency of the State’s evidence differently than the preservation of
other issues under Rule 10(a). By not requiring that a defendant state the specific
grounds for his or her objection, Rule 10(a)(3) provides that a defendant preserves all
insufficiency of the evidence issues for appellate review simply by making a motion
to dismiss the action at the proper time.
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This interpretation of Rule 10(a)(3) is consistent with this Court’s recognition
that a motion to dismiss places an affirmative duty upon the trial court to determine
whether, when taken in the light most favorable to the State, there is substantial
evidence for every element of each charge against the accused. See State v. Crockett,
368 N.C. 717, 720, 782 S.E.2d 878, 881 (2016) (“In ruling on a motion to dismiss, the
trial court need determine only whether there is substantial evidence of each
essential element of the crime and that the defendant is the perpetrator.” (quoting
State v. Hill, 365 N.C. 273, 275, 715 S.E.2d 841, 842–43 (2011))); State v. Smith, 300
N.C. 71, 78, 265 S.E.2d 164, 169 (1980) (“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.” (quoting State v. Allred, 279 N.C. 398, 183 S.E.2d
553 (1971))); State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433 (1956) (“. . . the
trial court must determine whether the evidence taken in the light most favorable to
the State is sufficient to go to the jury. That is, whether there is substantial evidence
against the accused of every essential element that goes to make up the offense
charged.”). Because our case law places an affirmative duty upon the trial court to
examine the sufficiency of the evidence against the accused for every element of each
crime charged, it follows that, under Rule 10(a)(3), a defendant’s motion to dismiss
preserves all issues related to sufficiency of the State’s evidence for appellate review.
Here, defendant made a proper motion to dismiss at the close of the State’s
evidence. Then, after defendant presented evidence, he made another motion to
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dismiss at the close of all evidence as required under Rule 10(a)(3). N.C. R. App. P.
10(a)(3). We hold that, under Rule 10(a)(3) and our case law, defendant’s simple act
of moving to dismiss at the proper time preserved all issues related to the sufficiency
of the evidence for appellate review.
The Court of Appeals erred to the extent that it held that defendant (1) waived
appellate review of the sufficiency of the State’s evidence that he aided and abetted
Ballentine by not specifically making that argument to the trial court; and
(2) narrowed the scope of appellate review of the sufficiency of the State’s evidence
for his obtaining property by false pretenses conviction with the argument he made
in his second motion to dismiss. Golder, 257 N.C. App. at 811, 809 S.E.2d at 508.
In reaching its conclusion that defendant waived appellate review of the
sufficiency of the State’s evidence that he aided and abetted Ballentine, the Court of
Appeals relied on inapposite case law from this Court. Before discussing the decision
of the Court of Appeals, we note that the State points to our decision in State v.
Benson, in which we held that in moving to dismiss, the party must argue a specific
insufficiency of the evidence issue in order to preserve that issue for appellate review.
234 N.C. 263, 264, 66 S.E.2d 893, 894 (1951). In Benson, this Court concluded that
although “[t]he defendant entered a general demurrer to the evidence and moved to
dismiss,” the general demurrer did not “present for decision the question [of] whether
there was any sufficient evidence to support the count charging a conspiracy.” 234
N.C. at 264, 66 S.E.2d at 894. We stated that “[i]f defendant desired to challenge the
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sufficiency of the evidence to establish a conspiracy, he should have directed his
motion to that particular count.” Id. at 264, 66 S.E.2d at 894.
However, Benson predated the Rules of Appellate Procedure and is now
directly contrary to Rule 10(a)(3), which contains no requirement that a defendant
state a specific ground to preserve an insufficiency of the evidence issue. See N.C. R.
App. P. 10(a)(3) (first adopted in 1975). Accordingly, Benson is overruled to the extent
that it is contrary to Rule 10(a)(3).
Turning to the decision of the Court of Appeals, the court heavily relied on our
decision in State v. Eason for the proposition that “[i]n order to preserve a question
for appellate review, a party must have presented the trial court with a timely
request, objection or motion, stating the specific grounds for the ruling sought if the
specific grounds are not apparent.” Golder, 257 N.C. App. at 811, 809 S.E.2d at 507–
08 (quoting State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991)). However,
Eason applied then Rule 10(b)(1) of the Rules of Appellate Procedure, later recodified
as Rule 10(a)(1). See N.C. R. App. P. 10(a)(1) (“In order to preserve an issue for
appellate review, a party must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the context.”).
As discussed above, issue preservation under Rule 10(a)(3) is not the same as
preservation under Rule 10(a)(1), because Rule 10(a)(3) does not require that a
defendant advance a specific ground for a motion to dismiss in order to preserve all
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challenges to the sufficiency of the evidence for appellate review. Compare N.C. R.
App. P. 10(a)(1) with N.C. R. App. P. 10(a)(3). Accordingly, the Court of Appeals erred
by relying on Eason to improperly insert the “specific grounds” requirement under
Rule 10(a)(1) into Rule 10(a)(3).
Moreover, in holding that defendant waived appellate review of whether the
State’s evidence was sufficient to prove that he aided and abetted Ballentine, the
Court of Appeals improperly relied on our decision in State v. Garcia for the
proposition that “[m]atters that are not raised and passed upon at trial will not be
reviewed for the first time on appeal.” Golder, 257 N.C. App. at 811, 809 S.E.2d at
508 (quoting State v. Garcia, 358 N.C. 382, 410, 597 S.E.2d 724, 745 (2004)). Garcia
involved the question of whether a constitutional issue had been preserved for review,
not a challenge to the sufficiency of the evidence presented at trial. See Garcia, 358
N.C. at 410, 597 S.E.2d at 745 (“It is well settled that constitutional matters that are
not ‘raised and passed upon’ at trial will not be reviewed for the first time on appeal.”
(emphasis added)) (citing State v. Watts, 357 N.C. 366, 372, 584 S.E.2d 740, 745
(2003); N.C. R. App. P. 10(b)(1) (later recodified as Rule 10(a)(1))). It was error for the
Court of Appeals to rely on a rule that specifically applies to the preservation of
constitutional issues in denying defendant appellate review of the insufficiency of the
evidence issue.
In reaching its conclusion that defendant waived appellate review of whether
the State’s evidence was sufficient to prove that he obtained something of value, the
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Court of Appeals relied on its own case law which has erroneously narrowed the scope
of review preserved by a defendant’s motion to dismiss. Specifically, the Court of
Appeals relied on its opinion in State v. Walker to support its conclusion that
defendant narrowed the scope of appellate review of his challenge to the sufficiency
of the State’s evidence to support his obtaining property by false pretenses charge in
his second motion to dismiss. Golder, 257 N.C. App. at 813, 809 S.E.2d at 509 (“As in
Walker, [d]efendant ‘failed to broaden the scope of his motion when he renewed it
following the close of all the evidence,’ and therefore ‘failed to preserve the issue[ ] of
the sufficiency of the evidence as to the other elements of the charged offense[ ] on
appeal.’ ” (quoting State v. Walker, 252 N.C. App. 409, 413, 798 S.E.2d 529, 532
(2017))).
Walker is one case in a line of cases in which the Court of Appeals has viewed
a defendant’s motion to dismiss as falling under one of three categories: (1) a
“general,” “prophylactic” or “global” motion, which preserves all sufficiency of the
evidence issues for appeal; (2) a general motion, which preserves all sufficiency of the
evidence issues for appeal, even though a defendant makes a specific argument as to
certain elements or charges; and (3) a specific motion, which narrows the scope of
appellate review to only the charges and elements that are expressly challenged. See
Walker, 252 N.C. App. at 411–412, 798 S.E.2d at 530–31 (“In State v. Chapman, this
Court applied the ‘swapping horses’ rule to a scenario in which the defendant argued
before the trial court that the State presented insufficient evidence as to one element
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of a charged offense, and on appeal asserted the State presented insufficient evidence
as to a different element of the same charged offense. . . . A general motion to dismiss
requires the trial court to consider the sufficiency of the evidence on all elements of
the challenged offenses, thereby preserving the arguments for appellate review.”
(citations omitted))). As discussed above, merely moving to dismiss at the proper time
under Rule 10(a)(3) preserves all issues related to the sufficiency of the evidence for
appellate review. Therefore, the Court of Appeals’ jurisprudence, which has
attempted to categorize motions to dismiss as general, specifically general, or specific,
and to assign different scopes of appellate review to each category, is inconsistent
with Rule 10(a)(3).
Accordingly, we conclude that each of defendant’s challenges to the sufficiency
of the State’s evidence, both that he aided and abetted Ballentine and that he
obtained a thing of value, are preserved for appellate review.
III. Sufficiency of the Evidence
Turning to the merits of each of defendant’s challenges to his convictions, we
conclude that the State presented sufficient evidence that defendant (1) aided and
abetted Ballentine; and (2) obtained a thing of value to support the obtaining property
by false pretenses charge.
A. Standard of Review
“In ruling on a motion to dismiss, the trial court need determine only whether
there is substantial evidence of each essential element of the crime and that the
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defendant is the perpetrator.” State v. Winkler, 368 N.C. 572, 574, 780 S.E.2d 824,
826 (2015) (quoting State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002)).
“Substantial evidence is [the] amount . . . necessary to persuade a rational juror to
accept a conclusion.” Id. (quoting Mann, 355 N.C. at 301, 560 S.E.2d at 781). In
evaluating the sufficiency of the evidence to support a criminal conviction, the
evidence must 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.” Id. (quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).
In other words, if the record developed at trial contains “substantial evidence,
whether direct or circumstantial, or a combination, ‘to support a finding that the
offense charged has been committed and that the defendant committed it, the case is
for the jury and the motion to dismiss should be denied.’ ” Id. at 575, 780 S.E.2d at
826 (quoting State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988)).
“Whether the State presented substantial evidence of each essential element of the
offense is a question of law; therefore, we review the denial of a motion to dismiss de
novo.” State v. Chekanow, 370 N.C. 488, 492, 809 S.E.2d 546, 550 (2018) (quoting
Crockett, 368 N.C. at 720, 782 S.E.2d at 881).
B. Discussion
i. Aiding and Abetting
As explained below, we conclude that the State presented sufficient evidence
that defendant aided and abetted Ballentine in committing the offenses.
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A person aids and abets another in committing a crime if “(i) the crime was
committed by some other person; (ii) the defendant knowingly advised, instigated,
encouraged, procured, or aided the other person to commit that crime; and (iii) the
defendant’s actions or statements caused or contributed to the commission of the
crime by that other person.” State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422
(1999) (citing State v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175 (1996)). We have
stated that:
Mere presence, even with the intention of assisting in the
commission of a crime, cannot be said to have incited,
encouraged, or aided the perpetrator thereof, unless the
intention to assist was in some way communicated to him;
but, if one does something that will incite, encourage, or
assist the actual perpetration of a crime, this is sufficient
to constitute aiding and abetting.
State v. Hoffman, 199 N.C. 328, 154 S.E. 314, 316 (1930) (citations omitted).
Defendant challenges the sufficiency of the evidence presented by the State in
support of its theory of aiding and abetting on the basis that the same evidence cannot
be used to satisfy two of the elements of aiding and abetting. Defendant argues that,
as a result, the State’s evidence that defendant paid Ballentine to fraudulently enter
the motions to set aside cannot support more than one element. We are not persuaded
by defendant’s argument. Further, we note that the State presented substantial
evidence that defendant aided and abetted Ballentine in committing the offenses.
First, defendant fails to provide support for his assertion that distinct evidence
is needed to support each element. Specifically, defendant relies on our statement in
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State v. Davis that “[c]ausation of a crime by an alleged accessory is not ‘inherent’ in
the accessory’s counsel, procurement, command or aid of the principal perpetrator.”
319 N.C. 620, 626, 356 S.E.2d 340, 344 (1987). Defendant’s reliance on this language
from Davis is misplaced. This language in Davis was meant to disavow our prior
decision in State v. Hunter to the extent that Hunter concluded that a jury instruction
was proper when it failed to inform the jury that a defendant’s counsel to the
perpetrator must have a causal connection to the crime in order for the defendant to
be found to have aided and abetted the principal. See id. at 626, 356 S.E.2d at 344.
Accordingly, the Court in Davis did not hold that multiple elements of aiding and
abetting could not be supported by the same evidence. See id. at 626, 356 S.E.2d at
344.
Further, defendant relies on our decision in Gallimore v. Marilyn’s Shoes for
the proposition that distinct evidence is needed to support each element. 292 N.C.
399, 233 S.E.2d 529 (1977). Defendant’s reliance on our decision in Gallimore is
misplaced. Gallimore addressed whether a claimant’s injury was compensable under
the Workmen’s Compensation Act and, therefore, that case is plainly inapplicable to
resolving the issue here. See Gallimore, 292 N.C. at 402, 233 S.E.2d at 531.
Accordingly, defendant has failed to support his rule that distinct evidence is needed
in support of each element of aiding and abetting.
Second, in the light most favorable to the State, defendant’s payments to
Ballentine were only part of the evidence which tended to demonstrate defendant’s
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Opinion of the Court
guilt. Therefore, even assuming arguendo that single piece of evidence cannot be used
to support multiple elements of aiding and abetting, the State presented sufficient
evidence that defendant aided and abetted Ballentine. Specifically, the State
presented evidence at trial that defendant (1) met with Ballentine and agreed to
participate in the scheme; (2) sent text messages instructing Ballentine to enter the
fraudulent motions to set aside in specific cases; and (3) paid Ballentine for entering
the fraudulent motions. In the light most favorable to the State, the evidence tended
to show that Ballentine entered the fraudulent motions, and that defendant
“knowingly advised, instigated, encouraged, procured, or aided” Ballentine. Goode,
350 N.C. at 260, 512 S.E.2d at 422 (citing Bond, 345 N.C. at 24, 478 S.E.2d at 175).
In the light most favorable to the State, this evidence also tended to show that
defendant’s actions “caused or contributed” to Ballentine entering the fraudulent set
aside motions. Goode, 350 N.C. at 260, 512 S.E.2d at 422 (emphasis added) (citing
Bond, 345 N.C. at 24, 478 S.E.2d at 175).
Accordingly, we conclude that the State’s evidence was sufficient to support
defendant’s conviction on the theory that defendant aided and abetted Ballentine in
carrying out the scheme.
ii. Obtaining Property by False Pretenses
We conclude that the State presented sufficient evidence that defendant
obtained a thing of value to support his conviction for obtaining property by false
pretenses.
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Opinion of the Court
A person obtains property by false pretenses when that person
knowingly and designedly by means of any kind of false
pretense whatsoever, whether the false pretense is of a
past or subsisting fact or of a future fulfillment or event,
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
N.C.G.S. § 14-100 (2017).
Defendant challenges the sufficiency of the evidence supporting his conviction
for obtaining property by false pretenses on the basis that the State presented
insufficient evidence that defendant obtained a “thing of value” within the meaning
of N.C.G.S. § 14-100. Specifically, defendant argues that “[i]n the light most favorable
to the State, [defendant] did not obtain any property of the State or the School Board,”
because the fraudulent representations merely resulted in the “elimination of a
potential future liability.”
Assuming arguendo that the elimination of a potential future liability does not
constitute “property” under N.C.G.S. § 14-100, that result is not dispositive. The
statute does not only cover instances in which a defendant obtains “property,” it also
applies when a defendant “obtain[s] or attempt[s] to obtain . . . any . . . other thing of
value.” N.C.G.S. § 14-100 (emphases added). The fact that the statute imparts
criminal liability when a defendant even attempts to obtain any “other thing of value”
guides this Court in deciding to apply a broader definition of “thing of value” than
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Opinion of the Court
suggested by defendant. The evidence here shows that defendant and Ballentine,
through their actions, attempted to surreptitiously divert attention from sums of
bond money by altering bond forfeiture notations in court files. At a minimum, this
was an attempt to reduce the amount that defendant’s bail bond company was
required to pay as surety for forfeited bonds and, therefore, constitutes a “thing of
value” under N.C.G.S. § 14-100.
Accordingly, we conclude that defendant did obtain a “thing of value” under
N.C.G.S. § 14-100 and, therefore, defendant’s challenge to the sufficiency of the
State’s evidence to support his obtaining property by false pretenses conviction is
unavailing.
Conclusion
Because we conclude that the State presented sufficient evidence that
defendant aided and abetted Ballentine and that he obtained a thing of value, we
affirm the decision of the Court of Appeals as to those issues. However, we modify the
decision of the Court of Appeals because we conclude that defendant did preserve
each of his challenges to the sufficiency of the State’s evidence.
MODIFIED AND AFFIRMED.
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