State v. Jackson, 3106.

• Decision Date: 31 January 2000
• Docket Number: No. 3106.,3106.
• Citation: 527 S.E.2d 367,338 S.C. 565
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Kurtis JACKSON, Appellant.

338 S.C. 565

527 S.E.2d 367

The STATE, Respondent, v. Kurtis JACKSON, Appellant.

No. 3106.

Court of Appeals of South Carolina.

Heard November 2, 1999.

Decided January 31, 2000.

Assistant Appellant Defender Melody J. Brown, of SC Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General Toyya Brawley Gray, all of Columbia; Solicitor Randolph Murdaugh, III, of Hampton, for respondent.

CURETON, Judge:

Kurtis Jackson was convicted of breach of trust with fraudulent intent. The trial court sentenced him to five years imprisonment, suspended on service of five years probation and payment of restitution and a fine. Jackson appeals, arguing the court erred in denying his motions for directed verdict, or alternatively, mistrial. We reverse.

FACTS/PROCEDURAL HISTORY

On October 1, 1996, Jackson contracted with O.C. Welch Ford Lincoln Mercury, Inc. (Welch) to trade in his 1990 Mazda toward the purchase of a 1993 Nissan Quest automobile. Pursuant to the contract, Welch agreed to handle the $7,000 payoff on the Mazda with funds to be disbursed to the Mazda lienholder, Transouth. When Welch received the money from the Nissan lienholder, however, it mistakenly sent a check for $7,000 to Jackson instead of Transouth. The check, dated October 3, 1996, was stamped on the back:

ENDORSEMENT OF THIS CHECK GUARANTEES TITLE TO BE SENT TO O.C. WELCH FORD LINCOLN MERCURY, INC. PO BOX 2087 BEAUFORT, SC 29901

Welch did not discover the error until several days later, when it received a telephone call from Transouth concerning the payoff check. Upon realizing its mistake, Welch immediately attempted to stop payment on the check, but the bank failed to timely issue the stop payment order due to an unexplained oversight.

On October 16, Jackson visited the Welch office on an unrelated business matter. At that time, Welch's payroll and accounts payable clerk informed Jackson of the mistake. Jackson said he had not received the check, but had a separate mailing address in Savannah, Georgia where the check may have been mailed. He promised to see if the check was at the Savannah address and return it to Welch if he received it. However, Jackson never contacted Welch and Welch was unable to contact Jackson for several weeks. In the interim, Welch sent a duplicate check to Transouth for $7,000 to obtain clear title and enable it to sell the traded-in vehicle.

On November 19, Welch's president contacted Jackson via telephone and asked him to return the check. Jackson responded that he had already cashed the check and spent the money, and that he "wasn't gonna be sending any money to [Welch]."¹ At this point, the president instructed his office manager to file a complaint with the police.

A Beaufort County grand jury indicted Jackson for breach of trust with fraudulent intent pursuant to S.C.Code Ann. § 16-30-230(A) and (B)(3) (Supp.1998), on April 14, 1997. Jackson was tried before a jury on April 23, 1998. At the close of the State's case and again before closing arguments, Jackson moved for a directed verdict based upon the State's failure to prove a trust relationship existed. The trial court denied these motions. The jury convicted Jackson and the trial court sentenced him to five years imprisonment, suspended on service of five years probation, and payment of full restitution and a fine of $600.

LAW/ANALYSIS

Jackson argues the trial court erred in denying his motions for directed verdict because the State failed to prove he committed a breach of trust. We agree. The State is required to prove every element of a charged offense to obtain a conviction. State v. Attardo, 263 S.C. 546, 211 S.E.2d 868 (1975); State v. Barksdale, 311 S.C. 210, 428 S.E.2d 498 (Ct.App.1993). In reviewing the denial of a motion for directed verdict, the appellate court must view the evidence in the light most favorable to the State. State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998). However, where the facts of the case, even if proved, do not constitute the alleged criminal conduct, a directed verdict must be granted. See State v. Lee, 294 S.C. 461, 365 S.E.2d 734 (1988).

The elements which constitute breach of trust with fraudulent intent are not outlined in the statute governing this offense. See S.C.Code Ann. § 16-13-230 (1985). However, the crime has been defined through the development of case law. A breach of trust with fraudulent intent "is larceny after trust, which includes all of the elements of larceny or in common parlance, stealing, except the unlawful taking in the beginning." State v. Owings, 205 S.C. 314, 316, 31 S.E.2d 906, 907 (1944), quoted in State v. Scott, 330 S.C. 125, 130, 497 S.E.2d 735, 738 (Ct.App.1998). Thus, "[t]he primary difference between larceny and breach of trust is that in `commonlaw larceny, possession of the property stolen is obtained unlawfully, while in breach of trust, the possession is obtained lawfully.'" Scott, 330 S.C. at 130, 497 S.E.2d at 738 (quoting State v. McCann, 167 S.C. 393, 398, 166 S.E. 411, 413 (1932)) (emphasis in original).

In the seminal case addressing our breach of trust statute, the supreme court stated, "the object of our [breach of trust] act was simply to enlarge the field of larceny, removing what before might have been a defense for those who received property in trust and afterwards fraudulently appropriated it. The question under our act is, whether the party received the property in trust, which he afterwards violated...." State v. Shirer, 20 S.C. 392, 408 (1884) (citations omitted) (emphasis added). Therefore, the State must prove the existence of a trust relationship to sustain a charge of breach of trust with fraudulent intent. See State v. LeMaster, 231 S.C. 321, 98 S.E.2d 756 (1957); William S. McAninch and W. Gaston Fairey, The Criminal Law of South Carolina at 264-265 (3d ed.1996). Failure to prove the existence of a trust relationship will result in a directed verdict of acquittal for the defendant. See LeMaster, 231 S.C. 321,98 S.E.2d 756.

In this case, the State cannot prove the existence of a trust. The State argues a trust was created by virtue of Jackson's endorsement on the back of Welch's check containing the notation concerning the transfer of title, or in the alternative, by Jackson's declaration to Welch's clerk that he would look for and return the check. We disagree.

A trust is an "arrangement whereby property is transferred with intention that it be administered by trustee for another's benefit." Black's Law Dictionary 1047 (6th ed.1991). Thus, the transferor of the property must intend that the trustee will act for the transferor's benefit instead of on his own behalf. For example, a man whose daughter-in-law gave him a check for the purpose of paying medical bills may be convicted of breach of trust with fraudulent intent where he used part of the proceeds to pay his own grocery bill. See State v. McCann, 167 S.C. 393 166 S.E. 411 (1932). However, the fraudulent conversion of money paid or property delivered by mistake does not constitute a breach of trust because the person who mistakenly gave the money or property to another never reposed trust or confidence in that person. See 26 Am.Jur.2d Embezzlement § 18 (1996); 29A C.J.S. Embezzlement § 14 (1992).² In this case, it is undisputed that the $7,000 check Welch issued to Jackson was simply a "very big mistake." Because the check was mistakenly issued to Jackson, he was never entrusted with funds under an obligation to use them for the benefit of the dealership. There was no trust to breach.

The State argues the pre-printed endorsement...