State v. Jones, 27PA16

• Decision Date: 09 June 2017
• Docket Number: No. 27PA16,27PA16
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Keyshawn JONES

369 N.C. 631

800 S.E.2d 54

STATE of North Carolina

v.Keyshawn JONES

No. 27PA16

Supreme Court of North Carolina.

Filed June 9, 2017

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 Jones¹ 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, 116 S.Ct. 136, 133 L.Ed.2d 83 (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, Substantive Criminal Law § 19.2(a), at 63 (2d ed. 2003) [hereinafter Substantive Criminal Law ]; Rollin M. Perkins & Ronald N. Boyce, Criminal Law 303-04 (3d ed. 1982).

However the trespass occurs, it must be against the possession of another. See Webb , 87 N.C. at 559 (noting that a person with an interest in property may still be guilty of larceny if he "commit[s] a trespass upon the possession of" another); Substantive Criminal Law § 19.1(a), at 57 (noting that larceny is "a common-law crime ... committed when one person misappropriate[s] another's property by means of taking it from his possession without his consent" (emphasis added)). Possession of property can also be actual or constructive, though the meaning of these terms differs from their meaning in the trespass context.² See, e.g. , State v. Weaver , 359 N.C. 246, 259, 607 S.E.2d 599, 606-07 (2005). With respect to the crime of possession of a controlled substance, this Court has stated that "[a] person is in constructive possession of a thing when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing." State v. Beaver , 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). The Court of Appeals has adopted this test for constructive possession in the context of other offenses as well, including larceny. See, e.g. , State v. McNair , ––– N.C. App. ––––, ––––, 799 S.E.2d 631, 639–40, No. COA16-707, 2017 WL 1381591, at *6 (Apr. 18, 2017) (possession of burglary tools); State v. Bailey , 233 N.C. App. 688, 691, 757 S.E.2d 491, 493, disc. rev. denied , 367 N.C. 789, 766 S.E.2d 678 (2014) (possession of a firearm by a felon); State v. Phillips , 172 N.C. App. 143, 146-47, 615 S.E.2d 880, 882-83 (2005) (possession of stolen property); State v. Osborne , 149 N.C. App. 235, 238-39, 562 S.E.2d 528, 531, aff'd per curiam , 356 N.C. 424, 571 S.E.2d 584 (2002) (larceny); State v. Bonner , 91 N.C. App. 424, 426, 371 S.E.2d 773, 775 (1988), disc. rev. denied , 323 N.C. 705, 377 S.E.2d 227 (1989) (embezzlement). We implicitly endorsed applying this test to the embezzlement context in State v. Weaver , see 359 N.C. at 259, 607 S.E.2d at 606-07, and we explicitly adopt it in the larceny context here.

To determine whether defendant took West's property by trespass, then, we must first determine whether West retained actual or constructive possession of the excess funds after they had been deposited in defendant's SECU account. Account holders generally do not have actual possession of funds in their bank accounts, and there is no indication in the record that West had actual possession of the funds here, even when they were still in its own account. See Lipe v. Guilford Nat'l Bank , 236 N.C. 328, 330-31, 72 S.E.2d 759, 761 (1952) ; Ann Graham, 1 Banking Law (Matthew Bender & Co., Inc.) § 9.05, at 9-14 (Feb. 2005) ("Absent some special arrangement between the parties, money deposited in a...