Opinion
No. COA09-565.
Filed January 19, 2010.
Guilford County No. 05 CRS 100044.
Appeal by Defendant from judgment entered 19 August 2008 by Judge William Z. Wood, Jr. in Superior Court, Guilford County. Heard in the Court of Appeals 27 October 2009.
Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State. Duncan B. McCormick for Defendant-Appellant.
Russell Edward Smith (Defendant) and his wife, Susan Smith (Mrs. Smith), were married in 1967. Mrs. Smith began working for Royal Carolina, a textile finishing company, in the late 1980's. During that same time period, Defendant started his own pest control company, Cardinal Pest Control. Mrs. Smith was fired from Royal Carolina in 1990 after it was discovered that she had taken over $100,000.00 from Royal Carolina without authorization. Mrs. Smith pled guilty to corporate malfeasance as a result of this incident.
Mrs. Smith was hired by Colonial Tin Works (Colonial Tin) in the 1990's. Beginning in 1999 and continuing until her actions were uncovered in August of 2005, Mrs. Smith illegally obtained at least $1,300,000.00 from Colonial Tin. Mrs. Smith deposited the vast majority of the money taken from Colonial Tin into a joint account she held with Defendant, or into the business accounts of Cardinal Pest Control.
Mrs. Smith was arrested and ultimately pled guilty to state charges of obtaining property by false pretenses and federal charges of tax evasion. Defendant was indicted on multiple counts, including obtaining property by false pretenses, and accessory after the fact to obtaining property by false pretenses, for the years 2000 through 2004, and part of 2005. Defendant was tried by a jury for five counts of obtaining property by false pretenses, and four counts of accessory after the fact to obtaining property by false pretenses. On 19 August 2008, the jury found Defendant not guilty of any criminal wrongdoing for the years of 2000 and 2001. The jury could not reach unanimous verdicts for the years 2002-2004, and mistrials were entered for those charges. The jury did find Defendant guilty of obtaining property in excess of $100,000.00 by false pretenses on a theory of aiding and abetting Mrs. Smith for the partial year of 2005. Defendant was sentenced to an active term of 80 months to 105 months. Defendant appeals.
In Defendant's sole argument on appeal, he contends that the trial court erred in denying his motion to dismiss because "the evidence did not establish that . . . Defendant knowingly aided, encouraged, or enticed [Mrs. Smith] to steal from her employer."
We disagree.
When ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor. Any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered[.] The trial court must decide "`only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.'" "`Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'" When the evidence raises no more than a suspicion of guilt, a motion to dismiss should be granted. However, so long as the evidence supports a reasonable inference of the defendant's guilt, a motion to dismiss is properly denied even though the evidence also "permits a reasonable inference of the defendant's innocence."
State v. Miller, 363 N.C. 96, 98-99, 678 S.E.2d 592, 594 (2009) (internal citations omitted).
Defendant was only found guilty of the one count covering the last time period of 1 January 2005 to 14 August 2005. Defendant argues that there was insufficient evidence presented at trial to support the jury's verdict of guilty of obtaining property by false pretenses for the period from 1 January 2005 to 14 August 2005 on a theory of aiding and abetting. There is no dispute that Mrs. Smith obtained property by false pretenses during the relevant period. Defendant argues only that the evidence that he aided and abetted his wife in the crime was not sufficient to submit the charge to the jury.
A person is guilty of a crime by aiding and abetting if (i) the crime was committed by some other person; (ii) the defendant knowingly advised, instigated, encouraged, procured, or aided the other person to commit that crime; and (iii) the defendant's actions or statements caused or contributed to the commission of the crime by that other person.
State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999) (citation omitted). Defendant concedes the first element of the crime, but he contests the second and third.
[T]o be guilty [the defendant] must aid or actively encourage the person committing the crime or in some way communicate to this person his intention to assist in its commission. The communication or intent to aid does not have to be shown by express words of the defendant but may be inferred from his actions and from his relation to the actual perpetrators. Furthermore, when the bystander is a friend of the perpetrator and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as an encouragement.
Id. (internal citations omitted). "When there is evidence that the individual knew about and aided in the offense, or shared the intent and was in a position to aid and encourage, the matter should go to a jury." State v. Sink, 178 N.C. App. 217, 221, 631 S.E.2d 16, 19 (2006).
Defendant was sixty-one years old at the time of his trial. He had known Mrs. Smith since he was sixteen, had dated her on and off for several years, and married her in 1967. They had four children, two of whom had died by the time of Defendant's trial. Defendant testified that, following the death of their second son in childbirth in the mid-to-late seventies, Mrs. Smith changed. She was placed on antidepressants, and began spending excessively, which led to a number of confrontations between Defendant and Mrs. Smith. Mrs. Smith worked for Royal Carolina from 1986 until 1990, when she was terminated for embezzling over $100,000.00. Defendant testified that Mrs. Smith was suicidal at that time, and that her actions greatly strained their relationship. Mrs. Smith was hospitalized for four moths due to her fragile psychological state. Mrs. Smith pled guilty to the embezzlement charge. At the time of her sentencing, she had already obtained employment with Colonial Tin. Defendant continued to notice what he considered to be unnecessary spending by Mrs. Smith up until her 2005 arrest. Defendant confronted Mrs. Smith about her spending approximately once a month.
In the years between 2001 and 2005, Mrs. Smith stole approximately $1,300,000.00 from Colonial Tin. During that period, over $865,000.00 worth of checks and debits were drawn on the joint account of Defendant and Mrs. Smith. Defendant withdrew approximately $344,000.00, or forty percent, of the $865,000.00. Furthermore, 2005 banking records for Cardinal Pest Control show only sporadic and fairly insubstantial deposits from the actual work of Cardinal Pest Control. The largest source of deposits shown on Cardinal Pest Control's banking statements correlates with the deposits of funds stolen by Mrs. Smith from Colonial Tin, and deposited into the Cardinal Pest Control accounts.
During an eight-month period in 2005, in addition to receiving salary payments through Paychex payroll service, Defendant wrote checks to himself totaling over $12,500.00. Defendant was also writing checks from his business account to pay for both personal and business-related expenses. Over $40,000.00, most in the form of cash advances, was drawn from a Cardinal Pest Control revolving line of credit account between the months of January 2005 and August 2005. All of this money was paid back by funds obtained unlawfully by Mrs. Smith from Colonial Tin. Mrs. Smith stole over $213,000.00 from Colonial Tin in the eight-month period from January 2005 to August 2005.
Defendant and Mrs. Smith filed joint tax returns. Their 2004 North Carolina tax return indicated a joint net taxable income of $21,899.00. Between the years of 2000 and 2004, the highest net taxable income reported by Defendant and Mrs. Smith on their joint North Carolina returns was $44,029.00.
2005 tax returns were not entered into evidence, presumably because the unlawful taking of Colonial Tin funds ceased in August of 2005, when Mrs. Smith's activities were discovered.
Furthermore, the State presented plenary evidence that Defendant and Mrs. Smith were living well beyond the means supportable by their combined incomes. They were supporting their adult son and Mrs. Smith's mother. They purchased multiple automobiles for their son and paid his rent. They also paid for furniture, a drug rehab program at Duke, attorney's fees, and other expenses for their son.
Defendant knew Mrs. Smith had unlawfully taken funds from her previous employer, he admitted that he argued with Mrs. Smith monthly concerning her excessive spending habits, and that he personally wrote many checks to himself and others that were funded by Mrs. Smith's illegal activities. Over a three-month period in 2005, Mrs. Smith charged over $20,000.00 on a single credit card. When viewed in the light most favorable to the State, a jury could reasonably infer that Defendant was aware of the tens of thousands of dollars that were being deposited into the Cardinal Pest Control accounts and into Defendant's and Mrs. Smith's joint personal account during 2005, and that Defendant was actively encouraging Mrs. Smith, or in some way communicating to her, his intention to assist in the commission of the crime. Goode, 350 N.C. at 260, 512 S.E.2d at 422. "The communication or intent to aid does not have to be shown by express words of the defendant but may be inferred from his actions and from his relation to the actual perpetrator[.]" Id. We hold that "the evidence support[ed] a reasonable inference of [Defendant's] guilt," and therefore Defendant's motion to dismiss was properly denied. Miller, 363 N.C. at 98-99, 678 S.E.2d at 594. This argument is without merit.
No error.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).