State v. Whittle , 118 N.C. App. 130 ( 1995 )

Judge Lewis

dissenting in part and concurring in part.

I respectfully dissent as to the majority’s conclusion that the trial court improperly instructed the jury on the meaning of “willfully” in the misdemeanor charges. As to the felony charge, I concur only with the majority’s holding that there is no prejudicial error; I do not concur in the majority’s reasoning; I therefore dissent. Since “willfully” does not appear in that part of N.C.G.S. § 14-254 that defines the felony of false entries by a corporation agent, it is not an element of the offense. See N.C.G.S. § 14-254. In fact, “willfully” does not appear in the North Carolina pattern jury instruction for this offense. See N.C.P.I. Crim. § 218.22 (1992). Since defendant was not entitled to any instruction on willfulness, there was no prejudicial error to defendant in the instruction on willfulness that was given.

Furthermore, neither the felony statute (N.C.G.S. § 14-254) nor the misdemeanor statute (N.C.G.S. § 131E-109(d)) requires that “willfully” be defined in the jury instructions as “purposely and designedly in violation of law.” In State v. Stephenson, that language appears but not in the context of mandated jury instructions. See State v. Stephenson, 218 N.C. 258, 264, 10 S.E.2d 819, 823 (1940). Neither State v. Stephenson nor State v. Hales, also relied upon by defendant, concerned jury instructions, and neither case dealt with the statutes at issue here. See id; see State v. Hales, 256 N.C. 27, 122 S.E.2d 768 (1961). The North Carolina pattern jury instruction for the G.S. § 14-254 felony charge does not require the instruction that defendant requests. See N.C.P.I. Crim. 218.22 (1992). No North Carolina pattern jury instruction for the misdemeanor charges has been identified by the parties nor have I found any.

I believe the jury could adequately understand the statutory language “willfully” without the addition of the term “purposely.” In fact, we have held that the term “wilful” is common enough to be understood by a jury without being defined in the jury instructions. State v. Flaherty, 55 N.C. App. 14, 24, 284 S.E.2d 565, 572 (1981). Furthermore, by mandating the Stephenson language into instructions, the majority has amended the statutes to add as an additional element the requirement that the State prove defendants acted “purposely and designedly in violation of the law.” These statutes do not require such proof and need neither to be amended nor complicated.

The majority say the “jury should have been forced to consider whether these decisions were purposely and designedly in violation of the law.” Far from forcing the jury to consider anything, I would hold that the reasons for instructions are to assist the jury in finding the facts from the evidence in accord with the law.

“Willful” is an element in many crimes. E.g., N.C.G.S. § 5A-11 (1994) (criminal contempt); N.C.G.S. § 14-72.1 (1994) (concealment of merchandise in mercantile establishments); N.C.G.S. § 14-127 (1993) (willful and wanton injury to personal property); N.C.G.S. § 14-322 (1993) (abandonment and failure to support spouse and children). I do not believe that the language created by the majority has been required by statute or case law to be a part of jury instructions for crimes with “willful” as an element.

I concur in the majority’s holding that the trial court correctly denied defendant’s motion to dismiss the misdemeanor counts of the indictment. N.C.G.S. § 15-1 (1983) clearly provides that either presentment or indictment tolls the statute of limitations for misdemeanors.