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No. COA12-243 TWENTY-THIRD JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)From Wilkes
JONATHAN RUSS MINTON,)
Defendant.)
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DEFENDANT APPELLANT’S BRIEF
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1
INDEX
ISSUES PRESENTED...... 1
STATEMENT OF THE CASE...... 2
STATEMENT OF THE FACTS...... 3
STATEMENT OF GROUNDS FOR APPELLATE REVIEW...... 6
ARGUMENT
1. The trial court erred in failing to dismiss Mr. Minton’s motion to dismiss the charges of felonious conversion by a bailee because there was insufficient evidence that Mr. Minton had the requisite intent to defraud Center 6
2. The trial court erred in ordering that Mr. Minton pay $5000 in restitution when such amount was not supported by the evidence and without considering Mr. Minton’s ability to pay 11
CONCLUSION...... 14
SIGNATURE OF COUNSEL...... 14
CERTIFICATE OF FILING AND SERVICE...... 15
TABLE OF AUTHORITIES
Cases
State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1996), appeal afterremand,353 N.C. 400, 545 S.E.2d 190, cert. denied, 534 U.S. 1046 (2001) - 6 -
State v. Compton, 90 N.C. App. 101, 104, 367 S.E.2d 353, 355 (1988) - 9 -
State v. Daye, 78 N.C. App. 753, 757, 338 S.E.2d 557, 560, aff’d per curiam, 318 N.C. 502, 349 S.E.2d 576 (1986) - 12 -
State v. Hinton, 155 N.C. App. 561, 573 S.E.2d 609 (2002)...- 6 -
State v. Liberato, 156 N.C. App. 182, 186, 576 S.E.2d 118, 120 (2003) - 8 -
State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983)...... - 6 -
State v. McLaurin, 320 N.C. 143, 146, 356 S.E.2d 636, 638 (1987) - 6 -
State v. McLean, 209 N.C. 38, 40, 182 S.E.2d 700, 702 (1935) - 8 -
State v. Morris, 156 N.C. App. 335, 340, 576 S.E.2d 391, 395 (2003) - 8 -
State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980)...... - 7 -
State v. Reynolds, 161 N.C. App. 144, 149, 587 S.E.2d 456, 460 (2003) - 11 -
State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) - 11 -
State v. Woody, 132 N.C. App. 788, 789-90, 513 S.E.2d 801, 803 (1999) - 7 -
Statutes
N.C. Gen. Stat. § 7A-27...... - 6 -
N.C. Gen. Stat. § 14-100...... - 8 -
N.C. Gen. Stat. § 14-100(b)...... - 9 -
N.C. Gen. Stat. § 14-168.1...... - 7 -, - 9 -
N.C. Gen. Stat. § 15A-1340.36...... - 13 -
N.C. Gen. Stat. § 15A-1442...... - 6 -
N.C. Gen. Stat. § 15A-1444...... - 6 -
N.C. Gen. Stat. § 15A-1446...... - 6 -
N.C. Gen. Stat. § 15A-1447 ...... - 14 -
N.C. Gen. Stat. §15A-1446(d)(18)...... - 11 -
N.C. Gen. Stat. § 22-2...... - 10 -
Other Authorities
N.C.P.I. Civil 806.00...... - 8 -
N.C.P.I. Crim. 224.30...... - 7 -, - 9 -
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No. COA12-243 TWENTY-THIRD JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)From Wilkes
)
JONATHAN RUSS MINTON,)
Defendant.
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DEFENDANT APPELLANT’S BRIEF
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ISSUES Presented
1.Whether the trial court erred in failing to dismiss Mr. Minton’s motion to dismiss the charges of felonious conversion by a bailee because there was insufficient evidence that Mr. Minton had the requisite intent to defraud Center?
2.Whether the trial court erred in ordering that Mr. Minton pay $5000 in restitution when such amount was not supported by the evidence and without considering Mr. Minton’s ability to pay?
Statement of the Case
The Wilkes County Grand Jury returned indictments against Jonathan Russ Minton for ten counts of obtaining property by false pretenses and ten counts of conversion of property by a bailee on July 25, 2011. (R pp 2-13)
These cases were tried before the Honorable Lindsay R. Davis, Jr. at the September 12, 2011 Criminal Session of Wilkes County Superior Court. Judge Davis dismissed the charges for obtaining property by false pretenses at the end of the State’s evidence, finding that the only evidence of Mr. Minton’s intent to deceive was the fact that he did not fulfill the contract the State alleged existed between Mr. Minton and the prosecuting witness. The jury convicted Mr. Minton on each count of conversion of property by a bailee on September 22, 2011. (T p 174, ll. 22-24; R pp 37, 56)
On September 22, 2011, the trial court found that Mr. Minton had 3 points for felony sentencing. The trial court consolidated the convictions for sentencing and sentenced Mr. Minton to 6 to 8 months in the Department of Corrections. The trial court suspended the sentence for 36 months. The trial court further ordered that Mr. Minton pay $5000.00 in restitution. Mr. Minton gave written notice of appeal on September 27, 2011. The trial court entered appellate entries on October 6, 2011. (T p 365, l.16 to p 366, l.23; R pp 49-62)
The Appellate Defender appointed appellate counsel for Mr. Minton on October 14, 2011. (R p 63) On December 4, 2011, the court reporter produced the transcript. (R p 64)
Mr. Minton mailed the proposed record on appeal on January 9, 2012. (R p 66) The parties settled the record on appeal by stipulation. (R p 67) Mr. Minton mailed the record on appeal on February 22, 2012. (R p 68) The Office of the Clerk of the North Carolina Court of Appeals filed the record on appeal on February 24, 2012 and docketed it on February 28, 2012. The Office of the Clerk of the North Carolina Court of Appeals mailed the printed record to the parties on February 29, 2012. The court reporter uploaded the transcript to this Court on March 26, 2012.
Statement of the Facts
Jonathan Russ Minton contracted to buy a tract of land with two trailers from Harold Cantrell and his wife in 2005 when the Cantrells were moving back to West Virginia. They agreed for Mr. Minton to pay the Cantrells $1000 a month for 75 months. Once Mr. Minton paid all of the money, the Cantrells would give him the deed to the land. Mr. Minton and the Cantrells signed a promissory note to reflect their agreement, giving Mr. Minton 80 months to make all of the payments. (T p 41, l.15 to p 42, l.22; 70
Several months after Mr. Minton entered the contract with the Cantrells, he began renting one of the trailers to Ed Center. Center was being evicted from his home. Center paid Mr. Minton $500 a month in rent. Center and Mr. Minton never had a written lease. (T p 185, l.24 to p 188, l.14)
By January, 2008, Mr. Minton had paid $30,000 on the land. (T p 79, ll. 2-4)
Center quit paying his rent money to Mr. Minton and began paying his money directly to the Cantrells after September, 2009. Mr. Minton had told Center that he should look for a new place to live. Center was several months behind in paying his rent to Mr. Minton. Center testified that he and Mr. Minton had a verbal agreement from the beginning to buy this land together and split it evenly. Center testified that he paid his $500 to Mr. Minton when he got his check each month. (T p 104, l.14 to p 107, l.23; T p 109, ll. 1-10;T p 114,l.2 to p 116, l.6; T p 194, l.6 to p 197, l.2)
Center contacted the Cantrells when he became concerned that Mr. Minton was not paying the Cantrells. Center testified that he did not want to lose what he had put into buying the land if Mr. Minton could not keep the land. (T p 111, l.18 to p 113, l.17)
Mr. Minton learned that Center was paying the Cantrells directly around January, 2010 when the Cantrells told Mr. Minton that they would no longer accept money from Mr. Minton because they were selling the land to someone else. (T p 192, ll. 8-18; T p 277, l.8 to p 278, l.21)
Mr. Minton, the Cantrells and Center were litigating these matters in civil court. The civil cases were not resolved by the time of Mr. Minton’s trial. (T p 56, ll. 12-17; T p 69, l.14 to p 70, l.1; T p 93, l.24 to p 94, l.9; T p 127, l.5 to p 129, l.5; T p 198, l.8 to p 199, l.8)
In granting Mr. Minton’s motion to dismiss the ten counts of obtaining property by false pretenses, Judge Davis found that the only evidence the State produced of Mr. Minton’s intent to deceive was the fact that Mr. Minton did not fulfill the alleged contract with Center. Judge Davis relied on N.C. Gen. Stat. § 14-100(b), which requires more than evidence that a defendant failed to fulfill a contractual obligation to show the necessary intent to defraud. (T p 174, ll. 22-24)
In denying Mr. Minton’s motion to dismiss the conversion of property by a bailee charges, Judge Davis found that the statute of frauds did not apply to conversion of property by a bailee. After the trial court sentenced Mr. Minton, the trial court found that the judgment was “without prejudice to the defendant’s right, if any, to assert a civil claim against Center”. (T p 330, ll. 15-20; T p 366, ll. 6-8)
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
Mr. Minton appeals his convictions for conversion of property as a bailee as a matter of right from his conviction after a jury trial in Superior Court. N.C. Gen. Stat. §§ 7A-27(b); N.C. Gen. Stat. § 15A-1442; N.C. Gen. Stat. § 15A-1444(a); and N.C. Gen. Stat. § 15A-1446(a) and (d).
Argument
I.THE TRIAL COURT ERRED IN FAILING TO DISMISS MR. MINTON’S MOTION TO DISMSS THE CHARGES OF FELONIOUS CONVERSION BY A BAILEE BECAUSE THERE WAS INSUFFICIENT EVIDENCE THAT MR. MINTON HAD THE REQUISITE INTENT TO DEFRAUD CENTER.
Standards of Review: In deciding whether to dismiss a charge due to the insufficiency of the evidence to support a conviction, the trial court determines whether the State has presented “substantial evidence of each element of the crime and that the defendant is the perpetrator.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1996), appealafterremand,353 N.C. 400, 545 S.E.2d 190, cert.denied, 534 U.S. 1046 (2001). Substantial evidence “is such relevant evidence as a reasonable mind might except as adequate to support a conclusion.” State v. McLaurin, 320 N.C. 143, 146, 356 S.E.2d 636, 638 (1987). The trial court must consider all evidence in the light most favorable to the State. State v. Hinton, 155 N.C. App. 561, 573 S.E.2d 609 (2002).
Evidence is not substantial if it arouses only a suspicion about the fact to be proved, even if the suspicion is strong. State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983). If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the defendant’s motion to dismiss must be allowed. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).
North Carolina General Statute § 14-168.1 provides in relevant part that:
Every person entrusted with any property as bailee, lessee, tenant or lodger, or with any power of attorney for the sale or transfer thereof, who fraudulently converts the same, or the proceeds thereof, to his own use, or secretes it with a fraudulent intent to convert it to his own use,shall be guilty . . .
N.C. Gen. Stat. § 14-168.1.
This Court has held that felonious conversion by a bailee, “like larceny and embezzlement, occurs when a defendant offends the ownership rights of another. . . .[A]n essential component of the crime is the intent to convert or the act of conversion, which by definition requires proof that someone other than a defendant owned the relevant property.” State v. Woody, 132 N.C. App. 788, 789-90, 513 S.E.2d 801, 803 (1999). The intent to defraud is the essential element distinguishing criminal conversion from civil conversion. Compare N.C.P.I. Crim. 224.30, Felonious conversion by a bailee, requiring the jury to find that the defendant intended to defraud the owner of the property with N.C.P.I. Civil 806.00, Conversion, setting out that a civil plaintiff need not prove that the defendant had a wrongful intent.
Intent is a state of mind and usually must be inferred from circumstantial evidence. SeeState v. Liberato, 156 N.C. App. 182, 186, 576 S.E.2d 118, 120 (2003). Intent to defraud “‘may be shown by direct evidence, or by evidence of facts and circumstances from which it may reasonably be inferred.’” State v. Morris, 156 N.C. App. 335, 340, 576 S.E.2d 391, 395 (2003) (quotingState v. McLean, 209 N.C. 38, 40, 182 S.E.2d 700, 702 (1935)).
The Statefailed to present substantial evidence that Mr. Minton possessed the necessary intent to defraud Center. As Judge Davis found in dismissing the charges for obtaining property by false pretenses, the only evidence the State offered to show an intent to deceive on Mr. Minton’s behalf was the failure to comply with an alleged contractual obligation. (T p 174, ll. 18-24)
An element of obtaining property by false pretenses is that the pretense be made “with the intent to cheat or defraud”. N.C. Gen. Stat. § 14-100. Likewise, an element of conversion by a bailee is that the defendant “intended to defraud the owner of the property”. N.C.P.I. Crim. 224.30, Felonious Conversion by Bailee; N.C. Gen. Stat. § 14-168.1.
The General Assembly specifically found that with respect to the element of the intent to defraud for the crime of obtaining property by false pretenses, “[e]vidence of nonfulfillment of a contract obligation standing alone shall not establish” this element. N.C. Gen. Stat. § 14-100(b). In reviewing this provision, this Court acknowledged that it “recognizes the danger that juries may improperly infer criminal intent merely from a defendant’s failure to carry out his promise”. State v. Compton, 90 N.C. App. 101, 104, 367 S.E.2d 353, 355 (1988). “Evidence of conduct which shows merely that the defendant was inept or that he failed to diligently pursue the accomplishment of his promise, is insufficient to allow an inference that the promise was made without the present intention to comply with it.” Id.
Just as the failure to comply to with a contractual obligation alone is insufficient to show an intent to defraud for obtaining property by false pretenses, it is equally insufficient to show an intent to defraud for conversion of property by a bailee. The chance that the jury will improperly find a criminal act from a civil act of failing to fulfill a contract is no less likely in a conversion charge than it is in a charge of obtaining property by false pretenses.
In the instant case, it is undisputed that Center had no agreement with the Cantrells to buy the land and was not part of the promissory note to purchase the land that Mr. Minton had with the Cantrells. Center also had no written agreement to buy the land with Mr. Minton or for the Mr. Minton to forward the $500 per month he gave to Mr. Minton while living in the trailer to the Cantrells. There was no evidence of any agreement, written or otherwise, of how the land was to be divided or boundary lines between Mr. Minton and Center. There was no evidence of any agreement, written or otherwise, of whether Minton and Center were to own the land as tenants in common or as joint tenants with right of survivorship. Center did not even know who owned the land or to whom he thought he buying the land from until several years after he had been paying Mr. Minton $500 a month.
Center’s oral arrangement to buy some quantity of land with Mr. Minton, from some unknown seller, under some undefined terms and conditions of ownership, could not be enforced in a civil court. A contract for the sale of land or for a lease of land in excess of three years is void unless the contract is in writing and signed by the party to be charged. N.C. Gen. Stat. § 22-2 [also known as the Statute of Frauds]. Mr. Minton’s conviction here creates the situation where he has been convicted of a criminal offense of conversion by a bailee on proof that would be insufficient to allow Center to enforce the agreement he described in a civil court.
Because the State failed to present substantial evidence that Mr. Minton had an intent to defraud Center, the trial court erred in failing to dismiss the charges of conversion by a bailee.
II.THE TRIAL COURT ERRED IN ORDERING THAT MR. MINTON PAY $5000 IN RESTITUTION WHEN SUCH AMOUNT WAS NOT SUPPORTED BY THE EVIDENCE AND WITHOUT CONSIDERING MR. MINTON’S ABILITY TO PAY.
Standards of Review: Pursuant to N.C. Gen. Stat. §15A-1446(d)(18), this Court reviews the trial court’s sentence on adenovobasis. Sentencing error may be corrected by returning the case to the trial court for imposition of an appropriate sentence. Under N.C. Gen. Stat. § 15A-1446(d)(18), the trial court’s restitution award is deemed preserved for appellate review even though no objection was made at the sentencing hearing. SeeState v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004)(citingState v. Reynolds, 161 N.C. App. 144, 149, 587 S.E.2d 456, 460 (2003).
Additionally, pursuant to N.C. Gen. Stat. §15A-1447(f), this Court reviews the trial court’s sentence on a denovo basis. Sentencing error may be corrected without returning the case to the trial court. This Court may direct the entry of the appropriate sentence.
After consolidating Mr. Minton’s convictions for sentencing, the trial court further ordered that Mr. Minton pay $5000.00 in restitution to Center.
A.The trial court erred because there was insufficient evidence to support the restitution amount ordered.
In determining restitution, the trial court must limit the amount of restitution to the amount supported by the record. N.C. Gen. Stat. § 15A-1340.36(a). “Regardless of whether restitution is ordered or recommended by the trial court, the amount must be supported by the evidence.” State v. Daye, 78 N.C. App. 753, 757, 338 S.E.2d 557, 560, aff’d per curiam, 318 N.C. 502, 349 S.E.2d 576 (1986).
Center testified that he quit paying $500 a month to Mr. Minton when Mr. Minton told him that he might lose the land because Mr. Minton had not paid the Cantrells for nine months. Center testified that right after that, he opened an account at Bank of Granite and started putting the $500 a month in that account instead of paying that to Mr. Minton. (T p 114, l.2 to p 116, l.2) Therefore, the maximum restitution award the Court could order was $4500.00.
B.The trial court erred in ordering restitution without considering Mr. Minton’s circumstances, including his lack of resources and obligation to support his family.
In addition, the trial court erred in ordering restitution without considering Mr. Minton’s circumstances, as required by N.C. Gen. Stat. § 15A-1340.36.
Mr. Minton and his wife both testified during the trial. Mr. Minton was unemployed at the time of the trial and had been out of work at other times during the time he was purchasing the land from the Cantrells. He admitted that he had missed some payments to the Cantrells starting around August, 2008 because he could not make the payments. (T p 190, l.20 to p 191, l.18) He was in civil litigation and in danger of losing the land he was purchasing and in which he had invested so much. It is undisputed that in 2009, Center stopped paying any money to Mr. Minton. Mr. Minton was unable to pay the taxes on the land in 2011. (T p 216, ll. 1-5)
In addition, Mr. Minton and his wife had a son in 2006 and a daughter after that. Ms. Minton began working in 2009, but was not working attending school at the time of the trial. (T p 271, ll. 22-23; T p 277, ll. 14-23; T p 283, ll. 17-24; T p 285, ll.20-23; T p 296, l.17 to p 297, l.5)
Although the trial court could have ordered partial restitution, the trial court here ordered the restitution requested by the State. In doing so, the trial court failed to consider Mr. Minton’s limitations and family obligations.
Conclusion
Mr. Minton respectfully requests that this Court reverse the judgments against him and dismiss the charges because the evidence against him was insufficient as a matter of law. N.C. Gen. Stat. § 15A-1447 (c). With respect to his remaining arguments that the trial court committed error, Mr. Minton requests that this Court remand for new restitution hearing. N.C. Gen. Stat. § 15A-1447(d).
Respectfully submitted this the 29th day of March, 2012.
_s/Charlotte Gail Blake______
Charlotte Gail BlakeAttorney at Law
PO Box 1609, 329 S. Main Street
Jefferson, NC 28640
(336) 246-2544 phone/fax
N.C. State Bar No. 15482
ATTORNEY FOR JONATHAN RUSS MINTON
CERTIFICATE OF FILING AND SERVICE
I hereby certify that the original Defendant Appellant’s Brief has been filed electronically pursuant to Rule 26.
I further hereby certify that a copy of the above and foregoing Defendant Appellant’s Brief has been duly served upon Gayl M. Manthei, Special Deputy Attorney General, North Carolina Department of Justice, electronically pursuant to Rule 26(c) at .
This the 29th day of March, 2012.
s/Charlotte Gail Blake___
Charlotte Gail Blake
Attorney at Law