Appeal by defendant from Canaday, Judge. Judgment entered 5 December 1980 in Superior Court, Wake County. Heard in the Court of Appeals 15 October 1981.
Whichard, Judge. Judges Vaughn and Hill concur.
The State's evidence tended to show the following: Dr. and Mrs. Frankford M. Johnson, the prosecuting witnesses, met defendant when he began dating their daughter. Defendant learned the Johnsons were considering making an investment, and he suggested a clothing store catering to large and tall men.
Defendant and the Johnsons discussed the proposed venture for several months. They agreed the business should be incorporated, and defendant was to arrange the incorporation with an attorney friend. Mrs. Johnson, at defendant's request, wrote defendant a check for $800.00 to cover legal fees and expenses of incorporation. She left the payee blank, because defendant was uncertain how it should be completed. When the cancelled check was returned, defendant's name had been filled in as payee. Mrs. Johnson had not given defendant permission to deposit the check in his personal account.
Defendant took the Johnsons to a mall to view possible sites for the store. He subsequently asked Mrs. Johnson for a check for $473.00 as a deposit on the first month's rent to hold the store site. She gave the check to defendant with the understanding that he would deposit it in a corporate account. She did not give him permission to deposit it in his personal account. Defendant had not in fact arrived at a definite lease agreement with the mall, and the mall was not at any time holding the space the Johnsons had viewed. The mall manager never had any discussions with
defendant concerning his getting $473.00, or any amount of money, to hold any space at the mall. The manager never requested nor received any money from defendant.
Subsequently the Johnsons' son learned from the attorney defendant indicated he had contacted that no corporation had been established. The entire Johnson family then met with the attorney and learned that defendant had never been to see him about incorporating the business. They also learned that defendant had misrepresented many other matters. Immediately upon leaving the attorney's office, the Johnsons went to the police.
Defendant testified in his own behalf that his intent in securing the $800.00 check was to have $400.00 for expenses of incorporation and $400.00 to issue 400 shares of stock with a par value of $1.00 each. He indicated he told Mrs. Johnson to leave the payee blank on the check because he was uncertain how the attorney would want the check completed. He further testified that he had recalled the rent per month at the mall to be $946.00; that he told Mrs. Johnson he had one-half that amount; that she agreed to put up the other one-half; that he deposited her check for $473.00 in his account in order to write the mall a check for the entire amount; and that he did not think he ever asked Mrs. Johnson's permission to deposit her check in his account. On cross-examination defendant testified that he had been convicted of obtaining property by false pretense on two previous occasions.
Defendant contends the judgment should be vacated and the charges dismissed, pursuant to G.S. 15A-1227(d) and G.S. 15A-1446(d)(5),*fn1 on the ground that the evidence was insufficient as a matter of law to sustain the convictions. His argument is that "it is clear, in fact admitted, that misrepresentations were made," but that "it was not established that the defendant made false representations that were calculated to deceive and which were intended to deceive."
It is an essential element of obtaining property by false pretense that the act be done "knowingly and designedly . . .
with intent to cheat or defraud." G.S. 14-100. See State v. Phillips, 228 N.C. 446, 45 S.E.2d 535 (1947). "Intent [, however,] is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred." State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974). "[I]n determining the presence or absence of the element of intent, the jury may consider the acts and conduct of the defendant and the general circumstances existing at the time of the alleged commission of the offense charged . . . ." State v. Norman, 14 N.C. App. 394, 399, 188 S.E.2d 667, 670 (1972).
We find the evidence recited above sufficient to support the permissible inference that defendant intended to cheat or defraud when he obtained the checks in question. Thus, "[i]t was for the jury to determine, under all the circumstances, defendant's ulterior criminal intent." Bell, ...