Hill v. Winn-Dixie Charlotte, Inc. , 100 N.C. App. 518 ( 1990 )

397 S.E.2d 347 (1990) 100 N.C. App. 518

Delores Mae HILL, Plaintiff,
v.
WINN-DIXIE CHARLOTTE, INC. and Babbi Moore, and Marcus Marshall, Defendants.

No. 8917SC1380.

Court of Appeals of North Carolina.

October 30, 1990.

Daniel K. Bailey, Reidsville, for plaintiff.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Kari L. Russwurm and Robert W. Kaylor, Raleigh, for defendants.

ARNOLD, Judge.

In her first assignment of error, plaintiff argues that the superior court committed reversible error in granting defendants' motion for dismissal pursuant to Rule 50. A motion for directed verdict tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. Wallace v. Evans, 60 N.C. App. 145, 298 S.E.2d 193 (1982). A court reviewing such a motion must consider the evidence in the light most favorable to the nonmoving party. The motion is granted only if the evidence is insufficient, as a matter of law, to support a verdict for the nonmoving party. Eatman v. Bunn, 72 N.C.App. 504, 325 S.E.2d 50 (1985).

To prevail on a claim of malicious prosecution, plaintiff has the burden of establishing the following four elements: "(1) that defendant initiated the earlier proceeding; (2) that he did so maliciously; and (3) without probable cause; and (4) that the earlier proceeding terminated in plaintiff's favor." Jones v. Gwynne, 312 N.C. 393, 397, 323 S.E.2d 9, 11 (1984) (quoting Stanback v. Stanback, 297 N.C. 181, 202, 254 S.E.2d 611, 625 (1979)).

The focus in this case is on the third element, whether or not the suit against Ms. Hill was initiated with probable cause. "Probable cause depends upon whether there was a reasonable ground for suspicion, supported by circumstances sufficiently strong to warrant a cautious man's belief in the guilt of the accused." Gray v. Gray, 30 N.C.App. 205, 208, 226 S.E.2d 417, 419 (1976). The critical time for determining whether or not probable cause existed is when the prosecution begins. Williams v. Boylan-Pearce, Inc., 69 N.C.App. 315, 318, 317 S.E.2d 17, 19 (1984), aff'd, 313 N.C. 321, 327 S.E.2d 870 (1985).

Evidence showing that a plaintiff was convicted of charges forming the basis for the malicious prosecution action conclusively establishes the existence of probable cause, even where the plaintiff is later acquitted of the charges, unless the plaintiff can establish that the conviction was procured by fraud or other unfair means. Myrick v. Cooley, 91 N.C.App. 209, 213, 371 S.E.2d 492, 495 (1988). Thus, in the instant case, plaintiff's conviction in district court constitutes conclusive evidence of probable cause and can only be rebutted by evidence that the conviction was procured by fraud or other unfair means.

Plaintiff erroneously contends that her acquittal in superior court is sufficient to demonstrate that her district court conviction was procured by fraud or other unfair means. This is simply an attempt to use the first and fourth elements of a claim for malicious prosecution—that defendant initiated the earlier proceeding and that it terminated in plaintiff's favor—to prove the third element, that no probable cause existed when the suit was initiated. Standing alone, a plaintiff's acquittal does not make out a prima facie case for malicious prosecution. Fowle v. Fowle, 263 N.C. 724, 729, 140 S.E.2d 398, 402 (1965).

Plaintiff also asserts that her conviction in district court was fraudulently or unfairly procured because it was based on perjured testimony. To support her contention, plaintiff relies on Moore v. Winfield, 207 N.C. 767, 178 S.E. 605 (1935), the only North Carolina case we are aware of where a plaintiff in a malicious prosecution action overcame the conclusive effect of a prior conviction. Moore, however, is distinguishable because the evidence in that case established that at the earlier trial the plaintiff had been convicted by perjured testimony that was procured by threats, intimidation and promises of reward. Id. at 770, 178 S.E. at 607.

Moreover, plaintiff has failed even to show that perjured testimony was given in this case. Plaintiff points to several statements made by defendants as examples of perjury. She argues that because a jury found her not guilty, defendants' testimony that she concealed the tablets must be false. She then concludes that defendants must have made the false statements knowing that they were false. Plaintiff also relies upon several inaccurate statements made by Ms. Moore regarding the location of Mr. Marshall in the store prior to plaintiff's arrest. Finally, she relies upon conflicts in the testimony regarding when plaintiff concealed the Primatene tablets as evidence of perjury.

Despite plaintiff's contentions, none of these statements constitute perjury. Perjury is "a false statement under oath, knowingly, willfully and designedly made,... as to some matter material to the issue or point in question." State v. Arthur, 244 N.C. 582, 584, 94 S.E.2d 646, 647 (1956) (citations omitted). False statements made unintentionally or with an honest belief that one is telling the truth are not perjurious. State v. Phillips, 297 N.C. 600, 256 S.E.2d 212 (1979). Plaintiff has failed to demonstrate that defendants' statements concerning her actions in the store were made with the knowledge that they were false. Quite the contrary, the record reveals that Ms. Moore and Mr. Marshall have consistently testified that they believed plaintiff concealed property of Winn-Dixie on her person on 10 March 1987. Furthermore, the testimony concerning Mr. Marshall's location in the store, while inaccurate, does not constitute perjury and was not a material issue in the shoplifting trials. Finally, the conflicts in the testimony regarding when plaintiff concealed the tablets do not alone constitute perjury.

Plaintiff has failed to produce any evidence that her district court conviction was procured by fraud or unfair means. Accordingly, that conviction stands as conclusive evidence that probable cause existed when the shoplifting action was instituted, and therefore she cannot prevail here as a matter of law. The trial court acted properly in granting a directed verdict in defendant's favor.

Our holding here makes it unnecessary to examine plaintiff's other assignment of error.

Affirmed.

COZORT and GREENE, JJ., concur.