{
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  "name": "STATE OF NORTH CAROLINA v. CLARENCE OCTETREE",
  "name_abbreviation": "State v. Octetree",
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  "casebody": {
    "judges": [
      "Judges McCULLOUGH and BRYANT concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CLARENCE OCTETREE"
    ],
    "opinions": [
      {
        "text": "TYSON, Judge.\nClarence Octetree (\u201cdefendant\u201d) appeals from judgment entered after a jury found him to be guilty of misdemeanor failure to work after being paid. We find no error.\nI. Background\nThe State\u2019s evidence tended to show during late July 2003 William Noonan (\u201cNoonan\u201d) hired defendant to remove brush and trees from his property over a two day period. Noonan paid defendant for his work at the end of both days. Noonan was initially satisfied with defendant\u2019s work and asked him to replace the wooden floor of Noonan\u2019s backyard shed the following day. Defendant agreed to perform the work and told Noonan that he would procure the plywood required for the repairs. Noonan gave defendant $100.00 to purchase the plywood. Defendant never returned to replace the wooden floor in Noonan\u2019s shed and failed to refund Noonan\u2019s money.\nAt trial, defendant testified that he did not receive $100.00 from Noonan. Defendant claimed Noonan still owed him $1,200.00 for previous work he had done. At the close of the State\u2019s evidence, defendant moved to dismiss the charge due to insufficient evidence concerning defendant\u2019s intent to defraud. The trial court denied defendant\u2019s motion.\nOn 12 May 2004, a jury found defendant to be guilty of misdemeanor failure to work after being paid. Defendant was sentenced to sixty days of imprisonment. The sentence was partially suspended for thirty-six months and defendant was placed on supervisory probation and required to serve five days in jail. Defendant appeals.\nII.Issue\nDefendant contends the trial court erred by failing to dismiss the charge at the close of the State\u2019s evidence due to insufficiency of the evidence.\nIII.Standard of Review\n\u201cTo survive a motion to dismiss, the State must offer substantial evidence of each essential element of the offense and substantial evidence that defendant is the perpetrator.\u201d State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998) (citation omitted). Substantial evidence is evidence that is \u201cexisting and real, not just seeming or imaginary.\u201d State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980) (citation omitted). \u201cUltimately, the question for the court is whether a reasonable inference of defendant\u2019s guilt may be drawn from the circ\u00famstances.\u201d Lee, 348 N.C. at 488, 501 S.E.2d at 343 (citation omitted).\nIV.Misdemeanor Failure to Work After Being Paid\nDefendant was charged with misdemeanor failure to work after being paid under N.C. Gen. Stat. \u00a7 14-104.\nIf any person, with intent to cheat or defraud another, shall obtain any advances in money, provisions, goods, wares or merchandise of any description from any other person or corporation upon and by color of any promise or agreement that the person making the same will begin any work or labor of any description for such person or corporation from whom the advances are obtained, and the person making the promise or agreement shall willfully fail, without a lawful excuse, to commence or complete such work according to contract, he shall be guilty of a Class 2 misdemeanor.\nN.C. Gen. Stat. \u00a7 14-104 (2003).\nThe State must prove defendant did not intend to begin work at the time he received the advances (of money or provisions, etc.) \u201cbut used the promise [to work] as an artifice or fraud for the sole purpose of obtaining the advancements . . . .\u201d State v. Griffin, 154 N.C. 611, 613, 70 S.E. 292, 292-93 (1911). Intent is a state of mind and usually must be inferred from circumstantial evidence. See State v. Liberato, 156 N.C. App. 182, 186, 576 S.E.2d 118, 120 (2003).\nNoonan testified that he gave defendant $100.00 to buy supplies for a task defendant had agreed to perform. Defendant testified that he never received $100.00 and he refused to do the work because Noonan had not fully paid him for a previous job. Defendant moved to dismiss asserting the State had not presented substantial evidence of defendant\u2019s intent to defraud. We hold this evidence presented a question for the jury to resolve and does not mandate dismissal. See State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975).\nV. \u201cMoney. Provisions. Goods. Wares\u201d\nOn appeal, defendant seeks to distinguish between being paid in advance for work and receiving money to purchase materials. Noonan\u2019s testimony, defendant argues, shows defendant was paid in advance for materials only and was not paid in advance for work to be performed.\nThe statute, however, makes it a misdemeanor to \u201cobtain any advances in money, provisions, goods, wares or merchandise of any description from any other person\u201d on the false promise of completing work. N.C. Gen. Stat..\u00a7 14-104 (emphasis supplied). Noonan testified that he gave defendant $100.00 to purchase plywood after defendant promised to complete the repairs. Even though the $100.00 was intended for the purchase of materials, the State produced substantial evidence defendant obtained an advance of \u201cmoney, provisions, goods, wares or merchandise\u201d from Noonan on the. false promise of completing the work. Id.\nVT. Conclusion\nThe trial court did not err hy denying defendant\u2019s motion to dismiss on these grounds. Defendant received a fair trial free from prejudicial errors he assigned and argued.\nNo error.\nJudges McCULLOUGH and BRYANT concur.",
        "type": "majority",
        "author": "TYSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Spurgeon Fields, III, for the State.",
      "William D. Auman, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CLARENCE OCTETREE\nNo. COA04-1313\n(Filed 6 September 2005)\nFalse Pretense\u2014 misdemeanor failure to work after being paid \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by failing to dismiss the charge of misdemeanor failure to work after being paid at the close of the State\u2019s evidence, because: (1) the evidence presented a question for the jury to resolve when the alleged victim testified that he gave defendant $100 to buy supplies for a task defendant had agreed to perform and defendant testified that he never received the $100 but refused to do the work because he had not been fully paid by the alleged victim for a previous job; and (2) even though the $100 was intended for the purchase of materials, the State produced substantial evidence under N.C.G.S. \u00a7 14-104 that defendant obtained an advance of money, provisions, goods, wares or merchandise from the alleged victim on the false promise of completing the work.\nAppeal by defendant from judgment entered 12 May 2004 by Judge C. Philip Ginn in Henderson County Superior Court. Heard in the Court of Appeals 17 August 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Spurgeon Fields, III, for the State.\nWilliam D. Auman, for defendant-appellant."
  },
  "file_name": "0228-01",
  "first_page_order": 258,
  "last_page_order": 261
}