State v. Davis , 48 N.C. App. 526 ( 1980 )

269 S.E.2d 291 (1980) 48 N.C. App. 526

STATE of North Carolina
v.
Sheila DAVIS.

No. 805SC153.

Court of Appeals of North Carolina.

September 2, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen., Elizabeth C. Bunting and Kaye R. Webb, Raleigh, for the State.

W. G. Smith and Bruce H. Jackson, Jr.; and George H. Sperry, Wilmington, for defendant.

ROBERT M. MARTIN, Judge.

Defendant contends that the trial court erred when it failed to grant defendant's motions to dismiss counts one, two, three, and four of each indictment at the conclusion of all the evidence.

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 and (2) of defendant being the perpetrator of such offense. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).

Count one of each indictment charges defendant with the crime of obtaining property by false pretenses in violation of G.S. 14-100. Each count alleges, in essence, that defendant did "unlawfully, willfully, knowingly, designedly, feloniously, and with intent to deceive and defraud falsely present and represent unto the Town of Carolina Beach," that public expenditures in the amount of $31.00 and $248.00 were for "miscellaneous printed information" and "copies of legal case" whereas the expenditures were actually for the purchase of Amtrak train tickets and that by means of such false pretense knowingly caused the Town to pay certain sums of money for the purchase of train tickets.

The essential elements of the crime of obtaining property by false pretenses are as follows: "(1) a false representation of a subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which one person obtains or attempts to obtain value from another." State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980).

Under the circumstances of this case, there is no evidence that the information written on the expense voucher, the alleged misrepresentation, was the means by which defendant obtained property from the Town. The falsification of expense records cannot in itself constitute the crime of false pretenses. It is essential that the false pretense must have included the transfer of money or property. There must be a causal relationship between the representation alleged to have been made and the obtaining of the money or property. In the present case, defendant, a town official with the authority to draw checks, wrote a check to Attorney George M. Anderson which was co-signed by council member Whitley and which was paid by the bank. In return for the check defendant obtained Amtrak tickets. The evidence does not show that the statement or voucher induced the Town to part with its money or in any way caused the payment to be made. While the misrepresentation of the purpose of the expenditure in the voucher may be false, the State has not shown that defendant obtained property based upon the false voucher. See State v. Cronin, supra. Because the State has not established a causal relationship between the voucher and the obtaining of the property, defendant's motions for nonsuit should have been granted on counts one of each indictment.

The three remaining counts of each indictment concern the liability of an officer or employee of local government under G.S. 159-181 which governs the enforcement of the Local Government Finance Act.

Count II of each indictment alleges essentially that the defendant, as Town Manager, Finance Officer, and Town Treasurer did "unlawfully, willfully, with deceit and the intent to defraud" (emphasis added) make false written statements and false reports by use of vouchers that certain checks were for matters other than expenditures for train tickets in violation of GS 159-181.

Count III of each indictment alleges essentially that the defendant, as Town Manager, Finance Officer, and Town Treasurer did "unlawfully, willfully, with deceit and intent to defraud" (emphasis added) make false written statements and false reports by use of vouchers that certain checks were for matters other than expenditures for train tickets in violation of GS 159-181.

Count IV of each indictment alleges essentially that the defendant, as Town Manager, Finance Officer, and Town Treasurer did "unlawfully, willfully, with deceit and an intent to defraud" (emphasis added) fail to "pre-audit" obligations and disbursements represented by checks used for the purchase of train tickets in violation of GS 159-25(a)(2) and 159-181.

Defendant contends that there is no substantial evidence to support a reasonable inference that defendant acted knowingly, designedly, willfully and with intent to defraud.

In order for the State to prove official misconduct proscribed by G.S. 159-181, it is not necessary for the State to prove a corrupt intent or wilful design to cheat and defraud the public. "Every public officer is bound to perform the duties of his office faithfully, and to use reasonable skill and diligence, and to act primarily for the benefit of the public. "Avery County v. Braswell, 215 N.C. 270, 275, 1 S.E.2d 864, 867 (1939). The foundation of liability of public officers has been expressed as follows: "However honest the defendants may be (and their honesty is not called in question) the public have a right to be protected against the wrongful conduct of their servants, if there is carelessness amounting to a wilful want of care in the discharge of their official duties, which injures the public." State v. Anderson, 196 N.C. 771, 773, 147 S.E. 305, 306 (1929) (construing G.S. 14-230 which governs the wilful failure of a public officer to discharge his duties); State v. Hatch, 116 N.C. 1003, 1006, 21 S.E. 430, 431 (1895). We think there is sufficient evidence to support a reasonable inference that defendant acted negligently or carelessly in the discharge of her duties in violation of G.S. 159-181.

As to count four of the indictments, wilful failure to preaudit, defendant further contends that the prosecution against defendant is inconsistent with the State's evidence that the purchase of train tickets was not a valid expense of the Town. In State v. Davis, 45 N.C.App. 72, 262 S.E.2d 827 (1980), we held that the duty to preaudit does not arise until there is a valid obligation of the Town. In the present case, defendant purchased train tickets to the Presidential Inauguration both for members of the Town Council and for persons not employed by the Town. There is sufficient evidence, therefore, that the expenditure of funds for the purchase of train tickets consisted of both valid and invalid obligations of the Town. The fact that Town Council members knew of or approved of the expenditure of funds for persons not employed by the Town or that defendant acted at the direction of the Mayor in ordering tickets for a friend of the Town and his wife does not either validate the expenditures or relieve defendant, as finance officer, of liability for approving a false, invalid or erroneous claim in violation of the duties imposed upon her by law. Avery County v. Braswell, 215 N.C. 270, 1 S.E.2d 864 (1939). Thus, where the evidence shows that the expenditures contained both valid and invalid items, the court properly submitted the charges of approving an invalid claim and failure to preaudit to the jury.

Defendant, by her seventh assignment of error, contends the court erred in not allowing the defendant's motion to require the State to make an election as to counts two and three in each indictment. Defendant contends the acts alleged in counts two and three, the acts of signing the checks and writing the purpose of the expenditure on the voucher, are the same acts, thus allowing the defendant to be twice convicted and sentenced for the same criminal offense. Defendant relies on State v. Summrell, 282 N.C. 157, 192 S.E.2d 569 (1972).

While it is true that both charges arise out of the same transactions, the elements of the two charges are not the same. The elements of approving a false claim in violation of G.S. 159-181 are (1) that the defendant was a finance officer, other officer or employee of local government (2) that in such capacity she approved a claim or bill, and (3) that at the time she approved the claim or bill she knew it was fraudulent, erroneous or otherwise invalid. The elements of making a false report in violation of G.S. 159-181 are (1) that defendant was a finance officer, other officer or employee of local government (2) that the written statement, in this case the voucher, was required by rules and regulations established by the Town of Carolina Beach for the lawful disbursement of funds, and (3) that defendant made a written statement on a voucher knowing that a portion of it was false. Because the elements of the two charges of approving a valid claim and making a false statement are not the same the State was not required to make an election between counts two and three. State v. Evans, 40 N.C.App. 730, 253 S.E.2d 590 (1979).

Defendant by her seventh, eighth, tenth, eleventh and twelfth assignments of error contends the court erred in its instructions and charge to the jury. We note that as to the tenth through twelfth assignments of error that defendant did not bring the alleged misstatement of defendant's contentions to the court's attention nor did she request specific instructions or object to those portions of the court's charge about which she now complains. Nevertheless we have carefully reviewed the entire charge and find no prejudicial error. We have also examined defendant's first through fourth assignments of error and find them to be without merit. In view of our holding, it is not necessary for us to discuss defendant's ninth assignment of error relating to the court's charge on false pretenses.

Counts 1 of case No. 78CRS24117 and case No. 78CRS24119 are reversed.

In Counts 2, 3, and 4 of case No. 78CRS24117 and case No. 78CRS24119 we find no error.

HEDRICK and HARRY C. MARTIN, JJ., concur.