State v. Hardison , 243 N.C. App. 723 ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-150
Filed: 3 November 2015
Craven County, Nos. 14 CRS 346-352
THE STATE OF NORTH CAROLINA
v.
JUDY HARDISON
Appeal by defendant from judgment entered 30 April 2014 by Judge Kenneth
F. Crow in Craven County Superior Court. Heard in the Court of Appeals 27 August
2015.
Attorney General Roy Cooper, by Assistant Attorney General Torrey D. Dixon,
for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender John F.
Carella, for the defendant-appellant.
DIETZ, Judge.
Defendant Judy Hardison owns a business that repairs water lines in Pamlico
County. In November 2012, a family friend of Hardison’s mistakenly broke a public
water line after driving over it with a heavy truck and then joked with Hardison about
“creating a job for her.” This gave Hardison an idea: she began paying the same man
to break other water lines in the county so that Hardison could repair them at the
county’s expense.
Law enforcement discovered the scheme and convinced the man working with
Hardison to wear a wire. After recording incriminating conversations between the
STATE V. HARDISON
Opinion of the Court
two, the State arrested Hardison and charged her with six counts of contaminating a
public water system and one count of obtaining property by false pretenses.
At trial, the State relied solely on the theory of acting in concert to convict
Hardison on all counts. During the trial and after the jury convicted her, Hardison
moved to dismiss, arguing that the theory of acting in concert requires the defendant
to be actually or constructively present during the commission of the crime. Here, it
is undisputed that Hardison was not present when the water lines were damaged,
although she planned the crimes and was available by telephone if needed.
We agree with Hardison that the evidence does not support acting-in-concert
liability with respect to her convictions for contaminating a public water system.1
Under this Court’s precedent, Hardison was not physically close enough to aid or
encourage the commission of the crimes and therefore was not actually or
constructively present—a necessary element of acting-in-concert liability. To be sure,
the evidence in this record easily would have supported Hardison’s conviction as an
accessory before the fact. But the jury was not instructed on that theory of criminal
liability, nor was Hardison charged with other related offenses, such as conspiracy,
that apply to those who help plan a criminal act. Because the State relied entirely
on a flawed theory of acting in concert, we must reverse Hardison’s convictions.
1 The trial court arrested judgment on her conviction of obtaining property by false pretenses.
-2-
STATE V. HARDISON
Opinion of the Court
Facts and Procedural History
Defendant Judy Hardison owns Triple H Construction Company. Triple H
contracted with Pamlico County to repair water lines, install taps, and do routine
water line maintenance throughout the county.
In November 2012, Rodney Brame accidentally cracked a water line in Pamlico
County while turning around a large truck. Triple H responded to a call from the
county and repaired the cracked water line. Brame knew Hardison and her family,
and jokingly apologized to Hardison for “creating a job for her.”
The following week, Hardison contacted Brame and offered to pay him $400 in
exchange for cracking another water line in Pamlico County. Over the next month,
Brame intentionally broke a number of other water lines so that Hardison could
repair those lines and be paid by the county. Hardison identified the lines that Brame
was to break and, on at least one occasion, Hardison or someone working on her behalf
placed a flag at the location of a water line to assist Brame in locating it. Hardison
was never present when Brame broke the water lines, but Brame had Hardison’s
phone number and occasionally called Hardison to “let her know” after he broke a
line.
Law enforcement ultimately discovered that Brame was intentionally
damaging the water lines. Brame began assisting law enforcement by recording a
phone call with Hardison and meeting her while wearing a wire. When Brame called
-3-
STATE V. HARDISON
Opinion of the Court
Hardison, he said, “I was trying to figure out where I might need to go,” to which
Hardison responded, “Okay. I can’t talk right now.” Hardison then agreed to meet
Brame the next day. During their in-person meeting, Brame asked Hardison if she
could give him money and if she could “get my ass out of jail if they put me in jail.”
Hardison declined to give him money and stated that she would not be able to bail
him out of jail because that might make her look guilty.
Law enforcement later arrested Hardison. The State indicted Hardison in
seven separate indictments on six counts of contaminating a public water system and
one count of obtaining property by false pretenses. The indictments charged that
Hardison willfully damaged portions of public water lines, conduct which falls within
the statutory definition of contaminating a public water system. At trial, the State
proceeded on a theory that Hardison acted in concert with Brame in damaging the
water lines. The trial court instructed the jury on the theory of acting in concert, but
not on other similar theories of liability, such as accessory before the fact.
During trial and after the verdict, Hardison moved to dismiss the charges on
the ground that the State failed to prove she was either actually or constructively
present at the crime—a necessary element of the acting-in-concert theory of criminal
liability. The trial court denied Hardison’s motions to dismiss and the jury returned
a verdict of guilty on all counts. At sentencing, the trial court arrested judgment on
the conviction of obtaining property by false pretenses and on one of the counts of
-4-
STATE V. HARDISON
Opinion of the Court
contaminating a public water system and sentenced Hardison on the remaining
counts. Hardison timely appealed.
Analysis
Hardison argues that the trial court erred by denying her requests to dismiss
all charges. Specifically, Hardison argues that for each charge against her the State
relied entirely on the theory that Hardison acted in concert with Brame but failed to
prove that Hardison was actually or constructively present during the commission of
the crimes. For the reasons discussed below, we agree.
In reviewing a motion to dismiss based on the sufficiency of the evidence, the
scope of the court’s review is to determine whether there is substantial evidence of
each element of the charged offense. See State. v. Brown, 310 N.C. 563, 566, 313
S.E.2d 585, 587 (1984). Substantial evidence is relevant evidence that a reasonable
mind might accept as adequate to support a conclusion. Id. The evidence must be
considered in the light most favorable to the State as the State is entitled to every
reasonable inference that might be drawn therefrom. Id.
Here, Hardison argues there was insufficient evidence to convict her under an
acting-in-concert theory of criminal liability. “Acting in concert means that the
defendant is present at the scene of the crime and acts together with another who
does the acts necessary to constitute the crime pursuant to a common plan or purpose
to commit the crime.” State v. Wade, 213 N.C. App. 481, 487, 714 S.E.2d 451, 456
-5-
STATE V. HARDISON
Opinion of the Court
(2011). To act in concert, a defendant’s presence at the scene of the crime may be
actual or constructive. See State v. Gaines, 345 N.C. 647, 675-76, 483 S.E.2d 396, 413
(1997). “A person is constructively present during the commission of a crime if he is
close enough to provide assistance if needed and to encourage the actual execution of
the crime.” Id.
It is undisputed that Hardison was not actually present, nor was she nearby,
at the time Brame damaged the water lines. The State nevertheless argues that it
proved Hardison was constructively present because she planned the crimes, was
accessible if needed by telephone, and later was at the scene of the crime to repair
the broken water lines. We disagree.
First, we reject the State’s argument that Hardison acted in concert with
Brame because she planned the crimes and provided guidance on how Brame could
later damage the water lines. One who plans and organizes a crime before the fact is
typically charged as a principal under a theory such as accessory before the fact,
which is an entirely different theory of liability than acting in concert. See State v.
Woods, 307 N.C. 213, 218, 297 S.E.2d 574, 577 (1982). Unlike an accessory before the
fact, who need not be present during the crime’s commission, one who acts in concert
must be “close enough to provide assistance if needed and to encourage the actual
execution of the crime.” Gaines, 345 N.C. at 675-76, 483 S.E.2d at 413. Thus, the
fact that Hardison planned the crime before the fact is irrelevant to the acting-in-
-6-
STATE V. HARDISON
Opinion of the Court
concert analysis; what matters is Hardison’s presence and conduct during the
commission of the crime itself.
We likewise reject the State’s argument that “by being accessible by telephone
Hardison was as close as she needed to be to further aid and encourage the particular
crime of contaminating a public water system.” This Court previously has held that
one cannot be actually or constructively present for purposes of proving acting in
concert simply by being available by telephone. State v. Zamora-Ramos, 190 N.C.
App. 420, 425-26, 660 S.E.2d 151, 155 (2008); State v. Buie, 26 N.C. App. 151-53, 215
S.E.2d 403 (1975). We are bound by that precedent whether we agree with it or not.
See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989). If the State
believes that accessibility by telephone should be sufficient to prove a defendant acted
in concert, it must raise that issue with our Supreme Court. See id.
Finally, the State argues that Hardison was present during the repairs of the
damaged water lines and that the crime was still ongoing at that point because,
during the repairs, the water system could have been exposed to further damage or
contamination. But the record does not support this theory. The State did not
present any evidence indicating that the repair process further contaminated or
damaged the water line. Moreover, the offense of contaminating a public water
system is a specific intent crime, meaning the State also would need to show that
Hardison intended to further damage or contaminate the system during the repairs.
-7-
STATE V. HARDISON
Opinion of the Court
See N.C. Gen. Stat. § 14-159.1(a)(2). But even the State’s own theory of the case
depended on evidence that Hardison wanted to repair, not damage, the system once
she arrived on the scene. After all, Hardison’s scheme depended on successfully
repairing the damage so she could charge Pamlico County for doing so.
In sum, we are constrained to reverse Hardison’s convictions. The State did
not charge Hardison with conspiracy to commit those crimes, nor did it seek an
instruction for accessory before the fact. The State’s sole theory of criminal liability
in this case turned on proving that Hardison acted in concert with Brame to damage
the water lines. But the undisputed evidence at trial established that Hardison was
not present, either actually or constructively, at the time Brame committed the crime.
Accordingly, the trial court should have granted Hardison’s motion to dismiss.
Because we reverse Hardison’s convictions for contaminating a public water system
for these reasons, we need not address her remaining arguments challenging those
convictions.
We note that the trial court arrested judgment on the charge of obtaining
property by false pretenses. This Court recently held that “in the absence of some
indication that the trial court’s decision to arrest judgment stemmed from double
jeopardy-related concerns, the effect of the decision to arrest judgment is to vacate
the underlying conviction and preclude subsequent appellate review.” See State v.
Pendergraft, ___ N.C. App. ___, 767 S.E.2d 674, 684 (2014) aff’d without precedential
-8-
STATE V. HARDISON
Opinion of the Court
value, ___ N.C. ___, ___ S.E.2d ___ (2015). Accordingly, we do not review the merits
of Hardison’s arguments concerning her conviction for obtaining property by false
pretenses, which the trial court effectively vacated by arresting judgment.
Conclusion
The trial court’s judgment of conviction on all counts is reversed.
REVERSED.
Judges HUNTER, JR. and DILLON concur.
-9-