State v. Lang

417 S.E.2d 808 (1992)

STATE of North Carolina
v.
Theodore LANG, Jr.

No. 923SC77.

Court of Appeals of North Carolina.

July 7, 1992.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Alexander McC. Peters, Raleigh, for the State.

David P. Voerman, New Bern, for defendant-appellant.

JOHNSON, Judge.

Defendant presents three arguments on appeal. First, defendant contends the court erred by denying his motion for nonsuit on the grounds that the State failed to present sufficient evidence of each element of the crime charged. We disagree.

The elements of obtaining property by false pretense are that the defendant (1) obtained or attempted to obtain value from another, (2) by a false representation of a past or subsisting fact or of a future fulfillment or event, (3) which was intended and calculated to deceive, and (4) which does, in fact, deceive. State v. Cronin, 299 N.C. 229, 262 S.E.2d 277 (1980). To withstand a motion for nonsuit, the State must have presented substantial evidence of each of these essential elements, or of a lesser included offense. State v. Workman, 309 N.C. 594, 308 S.E.2d 264 (1983). All the evidence must be reviewed in a light most favorable to the State, with all discrepancies and inconsistencies being resolved in favor of the State. State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977).

Defendant first argues that he did not receive anything of value from Dricks, as all payments were made to the business. Defendant also points to the fact that all the stock in the business was owned by his wife and children, contending this further shields him from the charge of obtaining anything of value from Dricks. This argument is without merit. Defendant was the president of the business, and was responsible for and did in fact enter into the contract with Dricks on behalf of the business. It is well established that an agent obtaining anything of value for a corporation by false pretense is subject to conviction along with the corporation. State v. Louchheim, 36 N.C.App. 271, 244 S.E.2d 195 (1978), aff'd, 296 N.C. 314, 250 S.E.2d 630, cert. denied, 444 U.S. 836, 100 S. Ct. 71, 62 L. Ed. 2d 47 (1979). We find, therefore, sufficient evidence was presented of the first element of the offense.

Defendant next maintains the State failed to show he had the requisite intent to cheat and defraud Dricks at the time of the representation. Defendant argues that at most he is guilty of breach of contract which does not establish the intent to defraud. Cronin, 299 N.C. at 229, 262 S.E.2d at 277. We disagree.

Evidence was presented that defendant requested and received the money for engines which were never purchased. Defendant then represented to Dricks that the engines would be delivered within ten days when he had not ordered them. Finally, when Dricks visited the shop approximately six months later, defendant informed him that the engines had been delivered and were being stored, though they had not been purchased and were not in his possession. From these facts it is reasonable for the jury to infer that defendant never intended to purchase the engines. Nothing more is required to defeat the motion for nonsuit on this ground.

Finally, in support of this argument, defendant contends again that evidence of the nonfulfillment of a contractual agreement, standing alone, is not sufficient to show intent to defraud. For the reasons discussed above, we find this argument to be without merit.

By his next assignment of error, defendant contends the court improperly instructed the jury that defendant could be charged along with the corporation. Defendant argues the evidence was not sufficient to warrant piercing the corporate veil because there was no evidence that he was a primary stockholder in the company. As discussed above, an agent obtaining anything of value for a corporation by false pretense is subject to conviction along with the corporation. Louchheim, 36 N.C.App. at 271, 244 S.E.2d at 195. In addition to Louchheim, defendant relies on State v. Earnest, 64 N.C.App. 162, 306 S.E.2d 560 (1983), disc. review denied, 310 N.C. 746, 315 S.E.2d 705 (1984), in which the agent who was convicted of embezzlement was also a major stockholder in the company for which he acted. Defendant maintains that the facts of these cases indicate an intent by the courts to make share ownership a requirement for the application of the rule permitting the prosecution of the agent. We disagree. None of the cases relied on by defendant make lack of share ownership a protective shield for a corporate agent. We decline to extend the rulings in these cases to include this requirement.

In his final argument, defendant contends the court improperly admitted his affidavit of indigency because the document is hearsay, and the admission violated his right against self-incrimination, his right to counsel, and his right not to testify against himself. There is no merit to this argument.

First, defendant argues that because he was required to execute the document in question in order to qualify for counsel, he has been forced to "choose" between his right to counsel and his right against self-incrimination. It is noted that the document was entered into evidence without an objection that defendant's right against self-incrimination was being violated. Accordingly, defendant may be deemed to have waived that right at trial. See State v. Thomas, 284 N.C. 212, 200 S.E.2d 3 (1973). It is also noted that defendant was represented at trial and so may not complain that the admission of the affidavit deprived him of his right to representation.

Defendant next argues the affidavit was inadmissible hearsay. This is incorrect. N.C.Gen.Stat. § 8C-1, Rule 801(d)(A) (1990) permits a statement if it is offered against a party and is that party's own statement. The Rule clearly applies in this case. Further, defendant made no objection upon the document's admission on the grounds of hearsay. Finally, defendant has not shown any prejudice resulting from the admission of the affidavit, or that the outcome of his trial would have been different absent the admission of the document. Under these circumstances, we can find no error by the court in admitting the affidavit.

For these reasons, we find defendant received a fair trial free from prejudicial error.

No error.

HEDRICK, C.J., and WYNN, J., concur.