STATE OF NORTH CAROLINA v. KENNETH VERNON GOLDER
No. 79PA18
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 3 April 2020
Joshua H. Stein, Attorney General, by Michael T. Henry, Assistant Attorney General, for the State-appellee.
Anne Bleyman for defendant-appellant.
Glenn Gerding, Appellate Defender; and Southern Coalition for Social Justice, by John F. Carella and Ivy A. Johnson, for North Carolina Advocates for Justice, amicus curiae.
HUDSON, Justice.
Pursuant to petitions for discretionary review filed by defendant and the State, we review the following issues: (1) whether the Court of Appeals erred in holding that defendant failed to prеserve his challenges to the sufficiency of the State‘s evidence; (2) whether the State presented sufficient evidence that defendant aided and abetted
Factual and Procedural Background
On 25 February 2014, the Wake County grand jury returned a bill of indictment charging defendant with (1) obtaining property worth over $100,000 by false pretenses in violation of
Before we summarize the evidence presented at trial, we briefly outline the statutory bail bond forfeiture proсedures. Specifically, if a defendant is released on a bail bond under Chapter 15A, Article 26 of the General Statutes and “fails on any occasion to appear before the court as required, the court shall enter a forfeiture for
Under certain exclusive, statutorily-enumerated circumstances, an entry of forfeiture may be set aside, including by motion of either the defendant or a surety.
In exchange for entering the motions to set aside into VCAP, defendant would pay Ballentine $500 for each list of cases. Ballentine testified that he received payment “normally once every other week” while he and defendant carried out this schеme. The payments were made in cash either by defendant leaving an envelope
At the close of the State‘s evidence at trial, defendant moved to dismiss. In moving to dismiss, defense counsel stated the following:
Your Honor, at this time we certainly would like to make our motion to dismiss. As we are all aware, following the State‘s case in chief, this is our time to make such a motion.
In giving the State the benefit of all reasonable inferences, we are quite confident that several of these charges should be dismissed, if not all, immediately.
Defense counsel then went on to address the individual charges, but did not specifically argue that the State failed to present sufficient evidence that defendant aided and abetted Ballentine in obtaining property by false pretenses, accessing a government computer, or altering court records. Defense counsel did, however, challenge defendant‘s obtaining property by false pretenses charge on the basis of several specific grounds. Defense counsel argued that the State‘s evidence was insufficient to prove that defendant obtained (1) a thing of value, because, at the time that Ballentine entered the motions to set aside the bond forfeitures, the prejudgment notice of forfeiture did not entitle the Wake County school board to an immediate
At the close of all evidence, defendant again moved tо dismiss the charges in open court. In making this motion, defense counsel stated that “[a]t this time we would certainly like to reiterate or readdress our motions . . . to dismiss.” Defense counsel then went on to repeat defendant‘s earlier argument against his obtaining property by false pretenses charge, asserting that the State did not present sufficient evidence that defendant obtained property with a value of $100,000 or more. However, defense counsel did not specifically argue—as defense counsel did in the first motion to dismiss—that the State failed to prove that defendant obtained a thing of value. The trial court again denied defendant‘s motion tо dismiss.
The jury then found defendant guilty of (1) obtaining property worth less than $100,000 by false pretenses; (2) accessing a government computer; (3) altering court records; and (4) unlicensed bail bonding. The trial court sentenced defendant to consecutive terms of imprisonment totaling thirty-five to forty-three months for obtaining property by false pretenses, accessing a government computer, and altering court records. Defendant received an additional consecutive forty-five-day sentence as a result of his misdemeanor unlicensed bail bonding conviction. Defendant was also ordered to pay $480,100 in restitution. Defendant appealed his convictions to the Court of Appeals.
The Court of Appeals disagreed, concluding that defendant waived his challenge to the sufficiency of the State‘s evidence of aiding and abetting “[b]ecause [d]efendant made several specific arguments when moving the trial court to dismiss certain charges, but did not challenge the State‘s aiding and abetting theory.” State v. Golder, 257 N.C. App. 803, 811, 809 S.E.2d 502, 508 (2018). With regard to defendant‘s argument that the State‘s evidence was insufficient to prove that he obtained a thing of value, the Court of Appeals concluded that defendant waived his right to appellate review. Id. at 813–14, 809 S.E.2d at 508–09. Specifically, the Court of Appeals recognized that defense counsel argued in the first motion to dismiss “that elimination of contingent future interest in property does not fulfill the obtaining ‘property’ requirement.” Id. at 813, 809 S.E.2d at 509. However, the Court of Appeals
We conclude that defendant preserved each of his challenges to the sufficiency of the evidence. However, because we conclude that the State presented sufficient evidence that defendant aided and abetted Ballentine, and that he obtained a thing of value, we modify and affirm the decision of the Court of Appeals.
Analysis
I. Plain error
In defendant‘s petition for discretionary review, he requested that we review the issue of “[w]hether the Court of Appeals erred in announcing a new rule that the sufficiency of the evidence could be reviewed on appeal for plain error.” Because the Court of Appeals did not actually announce a new rule that the sufficiency of the evidence can be reviewed for plain error, we conclude that the Court of Appeals did not err on this issue.
A. Standard of Review
B. Discussion
We conclude that the Court of Appeals did not err because the court did not announce a new rule that sufficiency of the evidence issues can be rеviewed under the plain error standard of review. Instead, the Court of Appeals merely recited
II. Preservation
We conclude that defendant preserved each of his challenges to the sufficiency of the State‘s evidence with regard to both (1) the State‘s theory that he aided and abetted Ballentine in committing the offenses; and (2) that he obtained a thing of value. As discussed below,
A. Standard of Review
The standard of review for this issue is the same as the last issue.
B. Discussion
We conclude that defendant properly preserved each of his challenges to the sufficiency of the State‘s evidence for appellate review.
If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, defendant‘s motion for dismissal . . . made at the close of [the] State‘s evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.
However, although
Accordingly, our Rules of Appellate Procedure treat the preservation of issues concerning the sufficiency of the State‘s evidence differently than the preservation of other issues under
Here, defendant made a proper motion to dismiss at the close of the State‘s evidence. Then, after defendant presented evidence, he made another motion to
The Court of Appeals erred to the extent that it held that defendant (1) waived appellate review of the sufficiency of the State‘s evidence that he aided and abetted Ballentine by not specifically making that argument to the trial court; аnd (2) narrowed the scope of appellate review of the sufficiency of the State‘s evidence for his obtaining property by false pretenses conviction with the argument he made in his second motion to dismiss. Golder, 257 N.C. App. at 811, 809 S.E.2d at 508.
In reaching its conclusion that defendant waived appellate review of the sufficiency of the State‘s evidence that he aided and abetted Ballentine, the Court of Appeals relied on inapposite case law from this Court. Before discussing the decision of the Court of Appeals, we note that the State points to our decision in State v. Benson, in which we held that in moving to dismiss, the party must argue a specific insufficiency of the evidеnce issue in order to preserve that issue for appellate review. 234 N.C. 263, 264, 66 S.E.2d 893, 894 (1951). In Benson, this Court concluded that although “[t]he defendant entered a general demurrer to the evidence and moved to dismiss,” the general demurrer did not “present for decision the question [of] whether there was any sufficient evidence to support the count charging a conspiracy.” 234 N.C. at 264, 66 S.E.2d at 894. We stated that “[i]f defendant desired to challenge the
However, Benson predated the Rules of Appellate Procedure and is now directly contrary to
Turning to the decision of the Court of Appeals, the court heavily relied on our decision in State v. Eason for the proposition that “[i]n order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent.” Golder, 257 N.C. App. at 811, 809 S.E.2d at 507–08 (quoting State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991)). However, Eason applied then Rule 10(b)(1) of the Rules of Appellate Procedure, later recodified as
As discussed above, issue preservation under
Moreover, in holding that defendant waived appellate review of whether the State‘s evidence was sufficient to prove that he aided and abetted Ballentine, the Court of Appeals improperly relied on our decision in State v. Garcia for the proposition that “[m]atters that are not raised and passed upon at trial will not be reviewed for the first time on appeal.” Golder, 257 N.C. App. at 811, 809 S.E.2d at 508 (quoting State v. Garcia, 358 N.C. 382, 410, 597 S.E.2d 724, 745 (2004)). Garcia involved the question of whether a constitutional issue had been preserved for review, not a challenge to the sufficiency of the evidence presented at trial. See Garcia, 358 N.C. at 410, 597 S.E.2d at 745 (“It is well settled that constitutional matters that are not ‘raised and passed upon’ at trial will not be reviewed for the first time on appeal.” (emphasis added)) (citing State v. Watts, 357 N.C. 366, 372, 584 S.E.2d 740, 745 (2003); N.C. R. App. P. 10(b)(1) (later recodified as
In reaching its conclusion that defendant waived appellate review of whether the State‘s evidence was sufficient to prove that he obtained something of value, the
Walker is one case in a line of cases in which the Court of Appeals has viewed a defendant‘s motion to dismiss as falling under one of three categories: (1) a “general,” “prophylactic” or “global” motion, which preserves all sufficiеncy of the evidence issues for appeal; (2) a general motion, which preserves all sufficiency of the evidence issues for appeal, even though a defendant makes a specific argument as to certain elements or charges; and (3) a specific motion, which narrows the scope of appellate review to only the charges and elements that are expressly challenged. See Walker, 252 N.C. App. at 411–412, 798 S.E.2d at 530–31 (“In State v. Chapman, this Court applied the ‘swapping horses’ rule to a scenario in which the defendant argued before the trial court that the State presented insufficient evidence as to one element
Accordingly, we conclude that each of defendant‘s challenges to the sufficiency of the State‘s evidence, both that he aided and abetted Ballentine and that he obtained a thing of value, are preserved for appellate review.
III. Sufficiency of the Evidence
Turning to the merits of each of defendant‘s challenges to his convictions, we conclude that the State presented sufficient evidence that defendant (1) aided and abetted Ballentine; and (2) obtained a thing of value tо support the obtaining property by false pretenses charge.
A. Standard of Review
“In ruling on a motion to dismiss, the trial court need determine only whether there is substantial evidence of each essential element of the crime and that the
B. Discussion
i. Aiding and Abetting
As explained below, we conclude that the State presented sufficient evidence that defendant aided and abetted Ballentine in committing the offenses.
Mere presence, even with the intention of assisting in the commission of a crime, cannot be said to have incited, encouraged, or aided the perpetrator thereof, unless the intention to assist was in some way communicated to him; but, if one does something that will incite, encourage, or assist the actual perpetration of a crime, this is sufficient to constitute aiding and abetting.
State v. Hoffman, 199 N.C. 328, 154 S.E. 314, 316 (1930) (citations omitted).
Defendant challenges the sufficiency of the evidence presented by the State in support of its theory of aiding and abetting on the basis that the same evidence cannot be used to satisfy two of the elements of aiding and abetting. Defendant argues that, as a result, the State‘s evidence that defendant paid Ballentine to fraudulently enter the motions to set aside cannot support more than one element. We are not persuaded by defendant‘s argument. Further, we note that the State presented substantial evidence that defendant aided and abetted Ballentine in committing the offenses.
First, defendant fails to provide support for his assertion that distinct evidence is needed to support each element. Specifically, defendant relies on our statement in
Further, defendant relies on our decision in Gallimore v. Marilyn‘s Shoes for the proposition that distinct evidence is needed to support each element. 292 N.C. 399, 233 S.E.2d 529 (1977). Defendant‘s reliance on our decision in Gallimore is misplaced. Gallimore addressed whether a claimant‘s injury was compensable under the Workmen‘s Compensation Act and, therefore, that case is plainly inapplicable to resolving the issue here. See Gallimore, 292 N.C. at 402, 233 S.E.2d at 531. Accordingly, defendant has failed to support his rule that distinct evidence is needed in support of each element of aiding and abetting.
Second, in the light most favorable to the State, defendant‘s payments to Ballentine were only part of the evidence which tended to demonstrate defendant‘s
Accordingly, we conclude that the State‘s evidence was sufficient to support defendant‘s conviction on the theory that defendant aided and abetted Ballentine in carrying out the scheme.
ii. Obtaining Property by False Pretenses
We conclude that the State presented sufficient evidence that defendant obtained a thing of value to support his conviction for obtaining property by false pretenses.
knowingly and designedly by means of any kind of false pretense whatsoever, whether the false pretense is of a past or subsisting fact or of a future fulfillment or event, obtain or attempt to obtain from any person within this State any money, goods, property, services, chose in action, or other thing of value with intent to cheat or defraud any person of such money, goods, property, services, chose in action or other thing of value
Defendant challenges the sufficiency of the evidence supporting his conviction for obtaining property by false pretenses on the basis that the State presented insufficient evidence that defendant obtained a “thing of value” within the meaning of
Assuming arguendo that the elimination of a potential future liability does not constitute “property” under
Accordingly, we conclude that defendant did obtain a “thing of value” under
Conclusion
Because we conclude that the State presented sufficient evidence that defendant aided and abetted Ballentine and that he obtained a thing of value, we affirm the decision of the Court of Appeals as to those issues. However, we modify the decision of the Court of Appeals because we conclude that defendant did preserve each of his challenges to the sufficiency of the State‘s evidence.
MODIFIED AND AFFIRMED.
HUDSON, Justice.