STATE of North Carolina
v.
Dale Vernon COMPTON.
No. 8728SC975.
Court of Appeals of North Carolina.
May 3, 1988.*354 Atty. Gen. Thornburg by Asst. Atty. Gen. K.D. Sturgis, Raleigh, for the State.
Herbert L. Hyde, Asheville, for defendant-appellant.
EAGLES, Judge.
Defendant assigns as error the trial court's failure to grant his motion to dismiss at the close of all the evidence, arguing that the evidence is insufficient to support the conviction.
Obtaining property by false pretenses is defined as (1) a false representation of a past or subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which the defendant obtains or attempts to obtain anything of value from another person. State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980); G.S. 14-100(a). A key element of the offense is that the representation be intentionally false and deceptive. State v. Kelly, 75 N.C.App. 461, 331 S.E.2d 227, disc. rev. denied, 315 N.C. 187, 339 S.E.2d 409 (1985). Prior to the 1975 amendment to G.S. 14-100(a), criminal liability could not be imposed on someone for misrepresenting their intention to do something in the future since their "state of mind" was not considered a subsisting fact. See State v. Hargett, 259 N.C. 496, 130 S.E.2d 865 (1963). Cf., United States v. O'Boyle, 680 F.2d 34 (6th Cir.1982); People v. Ashley, 42 Cal. 2d 246, 267 P.2d 271, cert. denied, 348 U.S. 900, 99 L. Ed. 707, 75 S. Ct. 222 (1954). The statute's amendment, however, broadened the scope of proscribed activity, State v. Cronin, supra, to include, within the definition of "false pretense," cases where someone misrepresents his present intention to perform a promise.
*355 Defendant argues that the evidence is insufficient to enable the jury to find that he did not intend to comply with the contract and convey the property to Mr. Wheeler. In reviewing whether the evidence is sufficient to go to the jury, the trial court must view the evidence in the light most favorable to the State, giving it the benefit of all reasonable inferences which can be drawn therefrom. State v. Agnew, 294 N.C. 382, 241 S.E.2d 684, cert. denied, 439 U.S. 830, 58 L. Ed. 2d 124, 99 S. Ct. 107 (1978). At this point defendant's evidence may be considered only to the extent that it clarifies, explains, or is not inconsistent with the State's evidence. State v. Bennett, 84 N.C.App. 689, 353 S.E.2d 690 (1987). If the record reveals substantial evidence of the essential elements of offense, the defendant's motion to dismiss should be denied. State v. Bates, 313 N.C. 580, 330 S.E.2d 200 (1985).
Applying those principles here, we find the evidence is insufficient to enable a reasonable mind to infer that defendant falsely represented his intention to convey the property to Mr. Wheeler. A person's intent is seldom provable by direct evidence, and must usually be shown through circumstantial evidence. State v. Bennett, supra. The State argues that the evidence shows that defendant's failure to convey the property was inexcusable, and that it, together with evidence of defendant's failure, after several requests, to repair the road or supply Mr. Wheeler with a list of the restrictive covenants, is sufficient circumstantial evidence to show that defendant's promise was false.
We agree that the record does not articulate a good reason for defendant's failure to set a closing date and convey the 5 acres to Mr. Wheeler. G.S. 14-100(b), however, recognizes the danger that juries may improperly infer criminal intent merely from a defendant's failure to carry out his promise, and provides that evidence of the nonfulfillment of a contractural obligation, standing alone, is not sufficient to show an intent to defraud. G.S. 14-100(b). Cf. MODEL PENAL CODE, section 223.3(1) (American Law Institute 1962) (failure to meet contractual obligation does not, by itself, support an inference that the promise was false). 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.
Here, the record discloses no other incriminating evidence. The evidence showed that defendant gave his correct telephone number and address to Mr. Wheeler before he returned to New York, as well as the name, address, and telephone number of a local attorney who defendant testified he had hired to represent him and whose name appears as trustee on the deed of trust securing the tract. Although defendant did not return to the area until several months after he entered into the contract, defendant called Mr. Wheeler several times and obtained his help in selling additional lots within the tract. Significantly, Mr. Wheeler himself testified that defendant did nothing which caused him to believe the closing would not occur. In addition, evidence that defendant, before indictment, returned what he had remaining in his possession of Mr. Wheeler's personal property is some evidence that he did not intend to defraud Mr. Wheeler. See State v. Johnson, 195 N.C. 506, 142 S.E. 775 (1928) (evidence that defendant confessed and satisfied judgment in favor of prosecuting witness before criminal proceedings were instituted is relevant to show absence of intent to defraud).
The evidence here is insufficient to allow a reasonable mind to conclude that defendant made a false representation with intent to defraud. Consequently, the trial court erred in denying defendant's motion to dismiss.
Reversed.
HEDRICK, C.J., concurs.
PHILLIPS, J., dissents.
*356 PHILLIPS, Judge, dissenting.
In my opinion the evidence supports defendant's conviction.