Opinion
No. COA11–145–2.
2012-11-20
STATE of North Carolina v. Latara Deshea HURST, Defendant.
Roy Cooper, Attorney General, by Seth P. Rosebrock, Assistant Attorney General, for the State. Leslie C. Rawls, for defendant-appellant.
On remand from the North Carolina Supreme Court by order filed 4 October 2012 remanding the matter with instructions to consider the merits of defendant's appeal. Roy Cooper, Attorney General, by Seth P. Rosebrock, Assistant Attorney General, for the State. Leslie C. Rawls, for defendant-appellant.
MARTIN, Chief Judge.
This case was originally before us on 29 August 2011. By opinion filed 20 September 2011, we dismissed defendant's appeal for lack of jurisdiction due to defendant's apparent failure to give oral or written notice of appeal. State v. Hurst, ––– N.C.App. ––––, 716 S.E.2d 268 (2011) (unpublished). However, defendant had in fact given oral notice of appeal, as evidenced by the hearing transcript, which had not been filed with this Court as of the date of our prior opinion. Defendant petitioned the North Carolina Supreme Court for writ of certiorari, which was granted for the limited purpose of remanding this case to this Court for consideration of the merits of defendant's appeal.
Our recitation of the facts is limited to those events deemed relevant to the issues before us on remand.
On 18 November 2009, Patricia Ann Sharp, office administrator for Caring for Children (“CFC”), created payroll checks for CFC's employees and placed them in the employee mailboxes in the reception area. None of the checks were endorsed at this time. Around 1:30 p .m., defendant arrived at the CFC along with her father, two children, and a woman identified as “Rachael” for her older child to receive outpatient therapy. CFC normally has a receptionist who greets patients, but the receptionist had left early that day and was not there. Upon hearing defendant enter, Ms. Sharp came out of the back office to determine what defendant needed. At about 3:00 p .m., Ms. Sharp made coffee at the request of defendant's father and returned to the back office, leaving defendant and her family alone in the reception area until approximately 3:30 p.m. About a half-an-hour after defendant's departure, a CFC employee telephoned Ms. Sharp to inform her that the paychecks were not in the employees' mailboxes.
Meanwhile, a woman named April Johnson attempted to cash one of the missing CFC paychecks at Ace Street, LLC d/b/a Ace Cash Express (“Ace”). Johnson told the clerk that she was cashing the check for a friend who had no identification because her purse had been stolen. The clerk agreed to cash the check. At that point, Johnson indicated that she had more checks she would like to cash, but the clerk told her she would not cash them without the payees present.
The following morning, on 19 November 2009, Johnson returned to Ace with defendant. Johnson went into the store, to the manager's window, and attempted to cash a check payable to Donella Arnold, another CFC employee. The clerk from the previous day recognized Johnson and relayed her concerns to the manager. The clerk asked Johnson whose check she was trying to cash. Videotapes taken from the security camera show Johnson motion for defendant, defendant enter the store, and stand beside Johnson while the clerk cashed Ms. Arnold's check. The clerk later testified that she believed defendant to be Ms. Arnold.
Later that day, defendant's father came to Ace and attempted to cash another CFC employee's check. The clerk became suspicious that several CFC paychecks had been presented without proper identification within a short period of time and called Ms. Sharp. Ms. Sharp informed Ace's clerk that the paychecks had been stolen the previous day.
After an investigation, defendant was arrested; her father and Johnson were charged as co-defendants. A jury later found defendant guilty on charges of uttering a forged instrument. Defendant was then tried for habitual felon status, convicted, and sentenced to 96 to 125 months imprisonment.
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On appeal, defendant contends the trial court erred by denying her motion to dismiss the uttering a forged instrument charge because the evidence was insufficient to show that defendant and Johnson had a common plan or purpose to commit a crime. We disagree.
“When ruling on a defendant's motion to dismiss, the trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Olson, 330 N.C. 557, 564, 411 S .E.2d 592, 595 (1992). In determining whether substantial evidence exists, the trial court “must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 132 L.Ed.2d 818 (1995). Accordingly, “[t]his Court reviews the trial court's denial of a motion to dismiss de novo.” Smith, 186 N.C.App. at 62, 650 S.E.2d at 33.
Defendant contends there was not sufficient evidence to show that she and Johnson shared a common plan or purpose to commit a crime because she did not actually perform any of the necessary acts which make up the elements of uttering a forged instrument and was merely present at the scene of the crime.
“The essential elements of the crime of uttering a forged check are (1) the offer of a forged check to another, (2) with knowledge that the check is false, and (3) with the intent to defraud or injure another.” State v. Conley, –––N.C.App. ––––, ––––, 724 S.E.2d 163, 170 (citations and internal quotation marks omitted), disc. review denied,––– N.C. ––––, 731 S.E.2d 413 (2012). Under the doctrine of acting in concert, a defendant can be convicted of a crime even if defendant did not personally perform the necessary acts if the defendant is present at the scene of the crime and there is sufficient evidence that defendant was acting in concert with another who performed the necessary acts to commit the crime, pursuant to a common plan or purpose. State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979). A person is considered to be “present during the commission of the crime if he or she is close enough to be able to render assistance if needed and to encourage the actual perpetration of the crime.” State v. Willis, 332 N.C. 151, 175, 420 S.E.2d 158, 169 (1992).
Here, defendant was not, as she claims, merely present at the scene of the crime. Defendant, but not Johnson, was present in CFC's reception area just before the paychecks were discovered to be stolen. At the time the checks were placed in the mailboxes, none of them were endorsed. That day, Johnson visited ACE, cashed one check, but was then told that she could not cash anymore checks without the payee present. The next day, defendant accompanied Johnson to Ace, where Johnson attempted to cash one of the paychecks. When the clerk asked where the payee was, Johnson motioned for defendant to come inside, which she did. Defendant stood beside Johnson at the manager's window, causing the clerk to think defendant was Ms. Arnold, as Johnson signed and cashed the check. Thus, defendant was present at the scene because she was close enough to render assistance, and a jury could reasonably find that she actually did when she stood next to Johnson as she cashed the check. Therefore, because “[c]ircumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence,” State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (citation and internal quotation marks omitted), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000), we hold that, viewing the evidence in the light most favorable to the State, a jury could reasonably infer from defendant's actions that she and Johnson had a prearranged plan to cash a forged check. See State v. Forte, 80 N.C.App. 701, 704–05, 343 S.E.2d 261, 263,disc. review, supersedeas, and stay denied, 316 N.C. 735, 345 S.E.2d 400 (1986) (holding the circumstantial evidence convicting defendant of uttering a forged check was sufficient to allow a reasonable jury to find defendant guilty).
No error. Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).