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State v. Jones

Supreme Court of North Carolina

June 9, 2017


          Heard in the Supreme Court on 14 February 2017.

         On discretionary review pursuant to N.C. G.S. § 7A-31 of a unanimous decision of the Court of Appeals, __ N.C.App. __, 781 S.E.2d 333 (2016), vacating defendant's convictions after appeal from a judgment entered on 29 October 2014 by Judge Kenneth F. Crow in Superior Court, Wayne County.

          Joshua H. Stein, Attorney General, by Robert C. Montgomery, Senior Deputy Attorney General, and Derrick C. Mertz, Special Deputy Attorney General, for the State-appellant.

          Glenn Gerding, Appellate Defender, by John F. Carella, Assistant Appellate Defender, for defendant-appellee.

          MARTIN, Chief Justice.

         In this case, defendant was overpaid because a payroll processor accidentally typed "$120, 000" instead of "$1, 200" into a payment processing system, resulting in a total payment (after deductions) of $118, 729.49. Although defendant was informed of the error and was asked not to remove the excess funds from his bank account, he made a series of withdrawals and transfers totaling $116, 861.80. We must decide whether the State produced sufficient evidence to support defendant's convictions for three counts of felonious larceny.

         When the overpayment occurred, defendant Keyshawn Jones[1] was a truck driver who worked as an independent contractor. At that time, he was driving trucks for EF Corporation, which was doing business as WEST Motor Freight (West). West gave its drivers the option to have money withheld every payroll period and placed in a "maintenance account" for the driver. Defendant participated in the maintenance account program and, in July 2012, requested $1, 200 from his maintenance account.

         But Sherry Hojecki, West's payroll processor, made an error while trying to type in the $1, 200 payment, accidentally typing in "$120, 000" instead. The final statement indicated that, after payroll deductions, defendant was to be given $118, 729.49. Hojecki sent a report to M&T Bank, the bank that held West's funds, directing that this $118, 729.49 figure be paid by direct deposit to defendant's account.

         The next morning, Hojecki realized her error and tried to stop the transaction. She also told defendant, through his agent, about the error and requested that defendant not withdraw or transfer the excess funds from his account. The stop transaction did not succeed, however, and the deposit went through. As a result, $118, 729.49 was deposited in defendant's State Employees' Credit Union (SECU) account. West promptly tried to initiate a reversal of the deposit.

         Despite West's instructions, defendant made several withdrawals and transfers that removed almost all of the excess funds from his account. Three days after being asked not to withdraw the funds, defendant made seven ATM cash withdrawals of $1, 000 each, totaling $7, 000. He also electronically transferred $20, 000 from his checking account to his savings account. The next day, defendant went to one of SECU's branch locations to withdraw more of the money. The teller who assisted him noticed the deposit of $118, 729.49 and asked defendant why such a large amount of money had been deposited into his account. Defendant replied that he was in business with someone else and had sold his part of the business. Defendant requested two cashier's checks in the amounts of $21, 117.80 and $2, 000. He also withdrew $66, 744 from his checking account and used a portion of that amount to purchase a third cashier's check. These three withdrawals totaled $89, 861.80. Because defendant had withdrawn or transferred virtually all of the money in question, the reversal that West had tried to initiate was not successful.

         Defendant was later indicted for three counts of larceny and three counts of possession of stolen goods. The three larceny counts each charged defendant with "tak[ing] and carry[ing] away" a discrete amount of money from West-specifically, with taking and carrying away $7, 000, $20, 000, and $89, 861.80, respectively. At the close of the State's evidence, the State made a motion to dismiss the three possession- of-stolen-goods counts, which the trial court granted. After the trial court ruled on the State's motion, defendant moved to dismiss the remaining charges based on insufficiency of the evidence. The trial court denied defendant's motion. Defendant renewed his motion at the close of all evidence, and the trial court again denied defendant's motion. The jury found defendant guilty of all three counts of larceny. Defendant appealed to the Court of Appeals, and the Court of Appeals vacated defendant's convictions, finding that he had not committed a trespassory taking. State v. Jones, __ N.C.App. __, __, 781 S.E.2d 333, 339 (2016). The State petitioned this Court for discretionary review, and we allowed the State's petition.

         The question before us is whether the State presented sufficient evidence of felonious larceny. A defendant is guilty of larceny if the State proves that he "(a) took the property of another; (b) carried it away; (c) without the owner's consent; and (d) with the intent to deprive the owner of his property permanently." State v. White, 322 N.C. 506, 518, 369 S.E.2d 813, 819 (1988) (citing State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982), overruled on other grounds by State v. Mumford, 364 N.C. 394, 699 S.E.2d 911 (2010)). "To survive a motion to dismiss for insufficient evidence, the State must present 'substantial evidence of all the material elements of the offense charged and that the defendant was the perpetrator of the offense.' " State v. Campbell, 368 N.C. 83, 87, 772 S.E.2d 440, 444 (2015) (quoting State v. Myrick, 306 N.C. 110, 113-14, 291 S.E.2d 577, 579 (1982)). Whether the evidence that the State presented at trial was substantial "is a question of law for the court." State v. Barnes, 345 N.C. 146, 148, 478 S.E.2d 188, 189 (1996) (citing State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)). A reviewing court must evaluate the evidence "in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom." State v. Davis, 340 N.C. 1, 12, 455 S.E.2d 627, 632, cert. denied, 516 U.S. 846 (1995).

         Here, it is beyond dispute that defendant carried property away, and that- assuming the property did not belong to him-he did so with the intent to permanently deprive the owner of the property, and without the owner's consent. Thus, the only issue in this case is whether defendant "took" the property of another when he withdrew and transferred money from his bank account.

         To constitute a larceny, a taking must be wrongful. See State v. Bowers, 273 N.C. 652, 655, 161 S.E.2d 11, 14 (1968). In other words, the taking must be by an act of trespass. See id.; State v. Webb, 87 N.C. 558, 559 (1882). A larcenous trespass may be either actual or constructive. Bowers, 273 N.C. at 655, 161 S.E.2d at 14. A constructive trespass occurs "when possession of the property is fraudulently obtained by some trick or artifice." Id. (quoting State v. Griffin, 239 N.C. 41, 45, 79 S.E.2d 230, 232-33 (1953)). An actual trespass, on the other hand, occurs when the taking is without the consent of the owner. See 50 Am. Jur. 2d Larceny § 22 (2017); 3 Wayne R. LaFave, ...

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