in the Supreme Court on 14 February 2017.
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.
H. Stein, Attorney General, by Robert C. Montgomery, Senior
Deputy Attorney General, and Derrick C. Mertz, Special Deputy
Attorney General, for the State-appellant.
Gerding, Appellate Defender, by John F. Carella, Assistant
Appellate Defender, for defendant-appellee.
MARTIN, Chief Justice.
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
the overpayment occurred, defendant Keyshawn
Jones 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.
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
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
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
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.
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).
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.
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,