State v. Golder

IN THE SUPREME COURT OF NORTH CAROLINA

No. 79PA18

Filed 3 April 2020

STATE OF NORTH CAROLINA

v.
KENNETH VERNON GOLDER

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 257 N.C. App. 803, 809 S.E.2d 502 (2018), affirming

judgments entered on 12 October 2015 by Judge Henry W. Hight Jr. in the Superior

Court, Wake County. On 9 May 2019, the Supreme Court allowed the State’s

conditional petition for discretionary review. Heard in the Supreme Court on

9 December 2019.

Joshua H. Stein, Attorney General, by Michael T. Henry, Assistant Attorney
General, for the State-appellee.

Anne Bleyman for defendant-appellant.

Glenn Gerding, Appellate Defender; and Southern Coalition for Social Justice,
by John F. Carella and Ivy A. Johnson, for North Carolina Advocates for
Justice, amicus curiae.

HUDSON, Justice.

Pursuant to petitions for discretionary review filed by defendant and the State,

we review the following issues: (1) whether the Court of Appeals erred in holding that

defendant failed to preserve his challenges to the sufficiency of the State’s evidence;

(2) whether the State presented sufficient evidence that defendant aided and abetted
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Opinion of the Court

another; and (3) whether the State presented sufficient evidence that defendant

obtained a thing of value to support his obtaining property by false pretenses

conviction. We conclude that defendant did preserve his challenges to the sufficiency

of the evidence for appeal. However, because we conclude that the State presented

sufficient evidence that defendant aided and abetted another and that he obtained a

thing of value, we modify and affirm the decision of the Court of Appeals.

Factual and Procedural Background

On 25 February 2014, the Wake County grand jury returned a bill of

indictment charging defendant with (1) obtaining property worth over $100,000 by

false pretenses in violation of N.C.G.S. § 14-100; (2) accessing a government computer

in violation of N.C.G.S. § 14-454.1; (3) altering court records in violation of N.C.G.S.

§ 14-221.2; (4) a misdemeanor bail bond violation under N.C.G.S. § 58-71-95; and (5)

a misdemeanor for performing bail bonding without being qualified and licensed

under N.C.G.S. § 58-71-40. The indictment arose from allegations that defendant and

Kevin Ballentine, a public employee with the Wake County Clerk’s Office, devised a

scheme in which defendant would pay Ballentine to alter or falsify court documents

to secure remission of bail bond forfeitures.

Before we summarize the evidence presented at trial, we briefly outline the

statutory bail bond forfeiture procedures. Specifically, if a defendant is released on a

bail bond under Chapter 15A, Article 26 of the General Statutes and “fails on any

occasion to appear before the court as required, the court shall enter a forfeiture for

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Opinion of the Court

the amount of that bail bond in favor of the State against the defendant and against

each surety on the bail bond.” N.C.G.S. § 15A-544.3(a) (2017). For purposes of this

case, a surety on a bail bond includes a “ ‘Professional bondsman’ mean[ing] any

person who is approved and licensed by the Commissioner of Insurance under Article

71 of Chapter 58 of the General Statutes” and who provides cash or approved

securities to secure a bail bond. N.C.G.S. § 15A-531(7)–(8) (2017); see also id. § 15A-

531(8) (“ ‘Surety’ means . . . insurance compan[ies], . . . professional bondsm[e]n, . . .

[and] accommodation bondsmen.”). The defendant and the sureties are notified of the

entry of forfeiture by receiving a copy of the forfeiture by first-class mail. Id. § 15A-

544.4(a)–(b) (2017). Importantly, the entry of forfeiture must contain “[t]he date on

which the forfeiture will become a final judgment . . . if not set aside before that date.”

Id. § 15A-544.3(b)(8).

Under certain exclusive, statutorily-enumerated circumstances, an entry of

forfeiture may be set aside, including by motion of either the defendant or a surety.

N.C.G.S. § 15A-544.5 (b), (d) (2017); see also id. § 15A-544.5(c) (allowing relief from

an entry of forfeiture in the event that the trial court enters an order striking the

defendant’s failure to appear). If neither the district attorney nor the county board of

education files a written objection to the motion to set aside “by the twentieth day

after a copy of the motion is served by the moving party[,] . . . the clerk shall enter

an order setting aside the forfeiture, regardless of the basis for relief asserted in the

motion, the evidence attached, or the absence of either.” Id. § 15A-544.5(d)(4).

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Opinion of the Court

The evidence at trial here tended to show that Ballentine, who worked for the

Wake County Clerk’s Office in various capacities from 1999 until 2013, was involved

in a scheme with defendant to exploit the automatic set-aside provision under

N.C.G.S. § 15A-544.5(d)(4) in exchange for cash. Ballentine understood defendant to

be working in the bail bond industry. Evidence produced at trial tended to show that

defendant was not a licensed bail bondsman. Ballentine testified that the scheme

began in 2006 or 2007 and continued until 2012. During that period, through text

messages, defendant sent Ballentine lists with the names and file numbers of cases

in which a bond forfeiture had been entered. After receiving a list of cases from

defendant, Ballentine would enter a motion to set aside the bond forfeiture for each

of the cases into the Wake County Clerk’s Office’s electronic records system, known

as VCAP. Because no motion had actually been filed in the case by the parties, neither

the district attorney nor the county board of education would receive notice of the

motion and were without an opportunity to object. Therefore, after twenty days, the

bond forfeiture would automatically be set aside. See N.C.G.S. § 15A-544.5(d)(4). As

a result, defendant’s bail bonding company would not be required to pay the bond as

it otherwise would have been required to do if the forfeiture remained in effect.

In exchange for entering the motions to set aside into VCAP, defendant would

pay Ballentine $500 for each list of cases. Ballentine testified that he received

payment “normally once every other week” while he and defendant carried out this

scheme. The payments were made in cash either by defendant leaving an envelope

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Opinion of the Court

with the payment in Ballentine’s truck, or meeting Ballentine in person. Ballentine

ended his arrangement with defendant in November of 2012. Ballentine was

eventually terminated from his position at the Wake County Clerk’s Office as a result

of his involvement in the scheme with defendant, as well as other similar schemes.

In September of 2013, he began cooperating with the State Bureau of Investigation

concerning his involvement in the schemes.

At the close of the State’s evidence at trial, defendant moved to dismiss. In

moving to dismiss, defense counsel stated the following:

Your Honor, at this time we certainly would like to make
our motion to dismiss. As we are all aware, following the
State’s case in chief, this is our time to make such a motion.

In giving the State the benefit of all reasonable inferences,
we are quite confident that several of these charges should
be dismissed, if not all, immediately.

Defense counsel then went on to address the individual charges, but did not

specifically argue that the State failed to present sufficient evidence that defendant

aided and abetted Ballentine in obtaining property by false pretenses, accessing a

government computer, or altering court records. Defense counsel did, however,

challenge defendant’s obtaining property by false pretenses charge on the basis of

several specific grounds. Defense counsel argued that the State’s evidence was

insufficient to prove that defendant obtained (1) a thing of value, because, at the time

that Ballentine entered the motions to set aside the bond forfeitures, the prejudgment

notice of forfeiture did not entitle the Wake County school board to an immediate

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Opinion of the Court

interest in the bond amount; and (2) $100,000 worth of property. The trial court

denied defendant’s motion to dismiss. Defendant then presented evidence and

testified on his own behalf.

At the close of all evidence, defendant again moved to dismiss the charges in

open court. In making this motion, defense counsel stated that “[a]t this time we

would certainly like to reiterate or readdress our motions . . . to dismiss.” Defense

counsel then went on to repeat defendant’s earlier argument against his obtaining

property by false pretenses charge, asserting that the State did not present sufficient

evidence that defendant obtained property with a value of $100,000 or more.

However, defense counsel did not specifically argue—as defense counsel did in the

first motion to dismiss—that the State failed to prove that defendant obtained a thing

of value. The trial court again denied defendant’s motion to dismiss.

The jury then found defendant guilty of (1) obtaining property worth less than

$100,000 by false pretenses; (2) accessing a government computer; (3) altering court

records; and (4) unlicensed bail bonding. The trial court sentenced defendant to

consecutive terms of imprisonment totaling thirty-five to forty-three months for

obtaining property by false pretenses, accessing a government computer, and altering

court records. Defendant received an additional consecutive forty-five-day sentence

as a result of his misdemeanor unlicensed bail bonding conviction. Defendant was

also ordered to pay $480,100 in restitution. Defendant appealed his convictions to the

Court of Appeals.

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Opinion of the Court

At the Court of Appeals, defendant argued, in pertinent part, that the State

failed to present sufficient evidence that he (1) aided and abetted Ballentine in

committing the felonies of obtaining property by false pretenses, accessing a

government computer, or altering court records; and (2) obtained a thing of value, as

required under the obtaining property by false pretenses statute. In support of his

argument that the State failed to present sufficient evidence that he obtained

anything of value, defendant repeated the same argument made by defense counsel

to the trial court in the first motion to dismiss. Specifically, defendant argued that,

at the time the false representations were made, neither the State nor the Wake

County school board was entitled to an “immediate interest” in the bond amount.

The Court of Appeals disagreed, concluding that defendant waived his

challenge to the sufficiency of the State’s evidence of aiding and abetting “[b]ecause

[d]efendant made several specific arguments when moving the trial court to dismiss

certain charges, but did not challenge the State’s aiding and abetting theory.” State

v. Golder, 257 N.C. App. 803, 811, 809 S.E.2d 502, 508 (2018). With regard to

defendant’s argument that the State’s evidence was insufficient to prove that he

obtained a thing of value, the Court of Appeals concluded that defendant waived his

right to appellate review. Id. at 813–14, 809 S.E.2d at 508–09. Specifically, the Court

of Appeals recognized that defense counsel argued in the first motion to dismiss “that

elimination of contingent future interest in property does not fulfill the obtaining

‘property’ requirement.” Id. at 813, 809 S.E.2d at 509. However, the Court of Appeals

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Opinion of the Court

then reasoned that the second motion to dismiss, in which defense counsel only

argued “that the dollar amount attributed to the thing of value obtained was less than

alleged in the indictment, [ ] narrowed the scope of his objection, and that objection

is all that would be reviewable by this Court.” Id. at 813, 809 S.E.2d at 509.

Accordingly, the Court of Appeals concluded that the only issue that was presented

for review was the actual value of the property obtained and “[d]efendant [could not]

argue [on appeal] that the evidence was insufficient because there was no thing of

value.” Id. at 813, 809 S.E.2d at 509.

We conclude that defendant preserved each of his challenges to the sufficiency

of the evidence. However, because we conclude that the State presented sufficient

evidence that defendant aided and abetted Ballentine, and that he obtained a thing

of value, we modify and affirm the decision of the Court of Appeals.

Analysis

I. Plain error

In defendant’s petition for discretionary review, he requested that we review

the issue of “[w]hether the Court of Appeals erred in announcing a new rule that the

sufficiency of the evidence could be reviewed on appeal for plain error.” Because the

Court of Appeals did not actually announce a new rule that the sufficiency of the

evidence can be reviewed for plain error, we conclude that the Court of Appeals did

not err on this issue.

A. Standard of Review

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Opinion of the Court

“This Court reviews the decision of the Court of Appeals to determine whether

it contains any errors of law.” State v. Melton, 371 N.C. 750, 756, 821 S.E.2d 424, 428

(2018) (citing N.C. R. App. P. 16(a); State v. Mumford, 364 N.C. 394, 398, 699 S.E.2d

911, 914 (2010)).

B. Discussion

We conclude that the Court of Appeals did not err because the court did not

announce a new rule that sufficiency of the evidence issues can be reviewed under

the plain error standard of review. Instead, the Court of Appeals merely recited Rule

10(a)(4) of the North Carolina Rules of Appellate Procedure and noted that

“[d]efendant has not argued plain error.” Golder, 257 N.C. App. at 811, 809 S.E.2d at

508. We do not interpret the court’s statement that defendant did not argue plain

error as the pronouncement of a new rule governing appellate review. However, we

take this opportunity to reiterate that “[a]n appellate court will apply the plain error

standard of review to unpreserved instructional and evidentiary errors in criminal

cases.” State v. Maddux, 371 N.C. 558, 564, 819 S.E.2d 367, 371 (2018) (citing State

v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012)). Further, this Court has

expressly held that Rule 10(a)(3) (previously codified at Rule 10(b)(3)) governs the

preservation of a sufficiency of the evidence issue, to the exclusion of plain error

review. See State v. Richardson, 341 N.C. 658, 676–66, 462 S.E.2d 492, 504 (1995).

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Opinion of the Court

Because the Court of Appeals did not announce a new rule allowing for plain

error review of sufficiency of the evidence issues, we conclude that the court did not

err.

II. Preservation

We conclude that defendant preserved each of his challenges to the sufficiency

of the State’s evidence with regard to both (1) the State’s theory that he aided and

abetted Ballentine in committing the offenses; and (2) that he obtained a thing of

value. As discussed below, Rule 10(a)(3) of the Rules of Appellate Procedure provides

that when a defendant properly moves to dismiss, the defendant’s motion preserves

all sufficiency of the evidence issues for appellate review. The Court of Appeals’

conclusion to the contrary relied on (1) inapposite case law from our Court; and (2) a

line of cases in which the Court of Appeals misinterpreted the extent to which a

defendant’s motion to dismiss preserves sufficiency of the evidence issues for

appellate review.

A. Standard of Review

The standard of review for this issue is the same as the last issue.

B. Discussion

We conclude that defendant properly preserved each of his challenges to the

sufficiency of the State’s evidence for appellate review.

Rule 10(a)(3) of the North Carolina Rules of Appellate Procedure provides that,

in a criminal case, to preserve an issue concerning the sufficiency of the State’s

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Opinion of the Court

evidence, the defendant must make “a motion to dismiss the action . . . at trial.” N.C.

R. App. P. 10(a)(3). Rule 10(a)(3) also provides that:

If a defendant makes such a motion after the State has
presented all its evidence and has rested its case and that
motion is denied and the defendant then introduces
evidence, defendant’s motion for dismissal . . . made at the
close of [the] State’s evidence is waived. Such a waiver
precludes the defendant from urging the denial of such
motion as a ground for appeal.
Id.

However, although Rule 10(a)(3) requires a defendant to make a motion to

dismiss in order to preserve an insufficiency of the evidence issue, unlike

Rule 10(a)(1)–(2), Rule 10(a)(3) does not require that the defendant assert a specific

ground for a motion to dismiss for insufficiency of the evidence. Id.; compare N.C. R.

App. P. 10(a)(3) with N.C. R. App. P. 10(a)(1)–(2) (requiring, as a general rule, that a

defendant state the “grounds” for an objection, particularly when objecting to a jury

instruction).

Accordingly, our Rules of Appellate Procedure treat the preservation of issues

concerning the sufficiency of the State’s evidence differently than the preservation of

other issues under Rule 10(a). By not requiring that a defendant state the specific

grounds for his or her objection, Rule 10(a)(3) provides that a defendant preserves all

insufficiency of the evidence issues for appellate review simply by making a motion

to dismiss the action at the proper time.

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Opinion of the Court

This interpretation of Rule 10(a)(3) is consistent with this Court’s recognition

that a motion to dismiss places an affirmative duty upon the trial court to determine

whether, when taken in the light most favorable to the State, there is substantial

evidence for every element of each charge against the accused. See State v. Crockett,

368 N.C. 717, 720, 782 S.E.2d 878, 881 (2016) (“In ruling on a motion to dismiss, the

trial court need determine only whether there is substantial evidence of each

essential element of the crime and that the defendant is the perpetrator.” (quoting

State v. Hill, 365 N.C. 273, 275, 715 S.E.2d 841, 842–43 (2011))); State v. Smith, 300

N.C. 71, 78, 265 S.E.2d 164, 169 (1980) (“In considering a motion to dismiss, it is the

duty of the court to ascertain whether there is substantial evidence of each essential

element of the offense charged.” (quoting State v. Allred, 279 N.C. 398, 183 S.E.2d

553 (1971))); State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433 (1956) (“. . . the

trial court must determine whether the evidence taken in the light most favorable to

the State is sufficient to go to the jury. That is, whether there is substantial evidence

against the accused of every essential element that goes to make up the offense

charged.”). Because our case law places an affirmative duty upon the trial court to

examine the sufficiency of the evidence against the accused for every element of each

crime charged, it follows that, under Rule 10(a)(3), a defendant’s motion to dismiss

preserves all issues related to sufficiency of the State’s evidence for appellate review.

Here, defendant made a proper motion to dismiss at the close of the State’s

evidence. Then, after defendant presented evidence, he made another motion to

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Opinion of the Court

dismiss at the close of all evidence as required under Rule 10(a)(3). N.C. R. App. P.

10(a)(3). We hold that, under Rule 10(a)(3) and our case law, defendant’s simple act

of moving to dismiss at the proper time preserved all issues related to the sufficiency

of the evidence for appellate review.

The Court of Appeals erred to the extent that it held that defendant (1) waived

appellate review of the sufficiency of the State’s evidence that he aided and abetted

Ballentine by not specifically making that argument to the trial court; and

(2) narrowed the scope of appellate review of the sufficiency of the State’s evidence

for his obtaining property by false pretenses conviction with the argument he made

in his second motion to dismiss. Golder, 257 N.C. App. at 811, 809 S.E.2d at 508.

In reaching its conclusion that defendant waived appellate review of the

sufficiency of the State’s evidence that he aided and abetted Ballentine, the Court of

Appeals relied on inapposite case law from this Court. Before discussing the decision

of the Court of Appeals, we note that the State points to our decision in State v.

Benson, in which we held that in moving to dismiss, the party must argue a specific

insufficiency of the evidence issue in order to preserve that issue for appellate review.

234 N.C. 263, 264, 66 S.E.2d 893, 894 (1951). In Benson, this Court concluded that

although “[t]he defendant entered a general demurrer to the evidence and moved to

dismiss,” the general demurrer did not “present for decision the question [of] whether

there was any sufficient evidence to support the count charging a conspiracy.” 234

N.C. at 264, 66 S.E.2d at 894. We stated that “[i]f defendant desired to challenge the

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Opinion of the Court

sufficiency of the evidence to establish a conspiracy, he should have directed his

motion to that particular count.” Id. at 264, 66 S.E.2d at 894.

However, Benson predated the Rules of Appellate Procedure and is now

directly contrary to Rule 10(a)(3), which contains no requirement that a defendant

state a specific ground to preserve an insufficiency of the evidence issue. See N.C. R.

App. P. 10(a)(3) (first adopted in 1975). Accordingly, Benson is overruled to the extent

that it is contrary to Rule 10(a)(3).

Turning to the decision of the Court of Appeals, the court heavily relied on our

decision in State v. Eason for the proposition that “[i]n order to preserve a question

for appellate review, a party must have presented the trial court with a timely

request, objection or motion, stating the specific grounds for the ruling sought if the

specific grounds are not apparent.” Golder, 257 N.C. App. at 811, 809 S.E.2d at 507–

08 (quoting State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991)). However,

Eason applied then Rule 10(b)(1) of the Rules of Appellate Procedure, later recodified

as Rule 10(a)(1). See N.C. R. App. P. 10(a)(1) (“In order to preserve an issue for

appellate review, a party must have presented to the trial court a timely request,

objection, or motion, stating the specific grounds for the ruling the party desired the

court to make if the specific grounds were not apparent from the context.”).

As discussed above, issue preservation under Rule 10(a)(3) is not the same as

preservation under Rule 10(a)(1), because Rule 10(a)(3) does not require that a

defendant advance a specific ground for a motion to dismiss in order to preserve all

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Opinion of the Court

challenges to the sufficiency of the evidence for appellate review. Compare N.C. R.

App. P. 10(a)(1) with N.C. R. App. P. 10(a)(3). Accordingly, the Court of Appeals erred

by relying on Eason to improperly insert the “specific grounds” requirement under

Rule 10(a)(1) into Rule 10(a)(3).

Moreover, in holding that defendant waived appellate review of whether the

State’s evidence was sufficient to prove that he aided and abetted Ballentine, the

Court of Appeals improperly relied on our decision in State v. Garcia for the

proposition that “[m]atters that are not raised and passed upon at trial will not be

reviewed for the first time on appeal.” Golder, 257 N.C. App. at 811, 809 S.E.2d at

508 (quoting State v. Garcia, 358 N.C. 382, 410, 597 S.E.2d 724, 745 (2004)). Garcia

involved the question of whether a constitutional issue had been preserved for review,

not a challenge to the sufficiency of the evidence presented at trial. See Garcia, 358

N.C. at 410, 597 S.E.2d at 745 (“It is well settled that constitutional matters that are

not ‘raised and passed upon’ at trial will not be reviewed for the first time on appeal.”

(emphasis added)) (citing State v. Watts, 357 N.C. 366, 372, 584 S.E.2d 740, 745

(2003); N.C. R. App. P. 10(b)(1) (later recodified as Rule 10(a)(1))). It was error for the

Court of Appeals to rely on a rule that specifically applies to the preservation of

constitutional issues in denying defendant appellate review of the insufficiency of the

evidence issue.

In reaching its conclusion that defendant waived appellate review of whether

the State’s evidence was sufficient to prove that he obtained something of value, the

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Opinion of the Court

Court of Appeals relied on its own case law which has erroneously narrowed the scope

of review preserved by a defendant’s motion to dismiss. Specifically, the Court of

Appeals relied on its opinion in State v. Walker to support its conclusion that

defendant narrowed the scope of appellate review of his challenge to the sufficiency

of the State’s evidence to support his obtaining property by false pretenses charge in

his second motion to dismiss. Golder, 257 N.C. App. at 813, 809 S.E.2d at 509 (“As in

Walker, [d]efendant ‘failed to broaden the scope of his motion when he renewed it

following the close of all the evidence,’ and therefore ‘failed to preserve the issue[ ] of

the sufficiency of the evidence as to the other elements of the charged offense[ ] on

appeal.’ ” (quoting State v. Walker, 252 N.C. App. 409, 413, 798 S.E.2d 529, 532

(2017))).

Walker is one case in a line of cases in which the Court of Appeals has viewed

a defendant’s motion to dismiss as falling under one of three categories: (1) a

“general,” “prophylactic” or “global” motion, which preserves all sufficiency of the

evidence issues for appeal; (2) a general motion, which preserves all sufficiency of the

evidence issues for appeal, even though a defendant makes a specific argument as to

certain elements or charges; and (3) a specific motion, which narrows the scope of

appellate review to only the charges and elements that are expressly challenged. See

Walker, 252 N.C. App. at 411–412, 798 S.E.2d at 530–31 (“In State v. Chapman, this

Court applied the ‘swapping horses’ rule to a scenario in which the defendant argued

before the trial court that the State presented insufficient evidence as to one element

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of a charged offense, and on appeal asserted the State presented insufficient evidence

as to a different element of the same charged offense. . . . A general motion to dismiss

requires the trial court to consider the sufficiency of the evidence on all elements of

the challenged offenses, thereby preserving the arguments for appellate review.”

(citations omitted))). As discussed above, merely moving to dismiss at the proper time

under Rule 10(a)(3) preserves all issues related to the sufficiency of the evidence for

appellate review. Therefore, the Court of Appeals’ jurisprudence, which has

attempted to categorize motions to dismiss as general, specifically general, or specific,

and to assign different scopes of appellate review to each category, is inconsistent

with Rule 10(a)(3).

Accordingly, we conclude that each of defendant’s challenges to the sufficiency

of the State’s evidence, both that he aided and abetted Ballentine and that he

obtained a thing of value, are preserved for appellate review.

III. Sufficiency of the Evidence

Turning to the merits of each of defendant’s challenges to his convictions, we

conclude that the State presented sufficient evidence that defendant (1) aided and

abetted Ballentine; and (2) obtained a thing of value to support the obtaining property

by false pretenses charge.

A. Standard of Review

“In ruling on a motion to dismiss, the trial court need determine only whether

there is substantial evidence of each essential element of the crime and that the

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defendant is the perpetrator.” State v. Winkler, 368 N.C. 572, 574, 780 S.E.2d 824,

826 (2015) (quoting State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002)).

“Substantial evidence is [the] amount . . . necessary to persuade a rational juror to

accept a conclusion.” Id. (quoting Mann, 355 N.C. at 301, 560 S.E.2d at 781). In

evaluating the sufficiency of the evidence to support a criminal conviction, the

evidence must be considered “in the light most favorable to the State; the State is

entitled to every reasonable intendment and every reasonable inference to be drawn

therefrom.” Id. (quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).

In other words, if the record developed at trial contains “substantial evidence,

whether direct or circumstantial, or a combination, ‘to support a finding that the

offense charged has been committed and that the defendant committed it, the case is

for the jury and the motion to dismiss should be denied.’ ” Id. at 575, 780 S.E.2d at

826 (quoting State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988)).

“Whether the State presented substantial evidence of each essential element of the

offense is a question of law; therefore, we review the denial of a motion to dismiss de

novo.” State v. Chekanow, 370 N.C. 488, 492, 809 S.E.2d 546, 550 (2018) (quoting

Crockett, 368 N.C. at 720, 782 S.E.2d at 881).

B. Discussion

i. Aiding and Abetting

As explained below, we conclude that the State presented sufficient evidence

that defendant aided and abetted Ballentine in committing the offenses.

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Opinion of the Court

A person aids and abets another in committing a crime if “(i) the crime was

committed by some other person; (ii) the defendant knowingly advised, instigated,

encouraged, procured, or aided the other person to commit that crime; and (iii) the

defendant’s actions or statements caused or contributed to the commission of the

crime by that other person.” State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422

(1999) (citing State v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175 (1996)). We have

stated that:

Mere presence, even with the intention of assisting in the
commission of a crime, cannot be said to have incited,
encouraged, or aided the perpetrator thereof, unless the
intention to assist was in some way communicated to him;
but, if one does something that will incite, encourage, or
assist the actual perpetration of a crime, this is sufficient
to constitute aiding and abetting.

State v. Hoffman, 199 N.C. 328, 154 S.E. 314, 316 (1930) (citations omitted).

Defendant challenges the sufficiency of the evidence presented by the State in

support of its theory of aiding and abetting on the basis that the same evidence cannot

be used to satisfy two of the elements of aiding and abetting. Defendant argues that,

as a result, the State’s evidence that defendant paid Ballentine to fraudulently enter

the motions to set aside cannot support more than one element. We are not persuaded

by defendant’s argument. Further, we note that the State presented substantial

evidence that defendant aided and abetted Ballentine in committing the offenses.

First, defendant fails to provide support for his assertion that distinct evidence

is needed to support each element. Specifically, defendant relies on our statement in

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State v. Davis that “[c]ausation of a crime by an alleged accessory is not ‘inherent’ in

the accessory’s counsel, procurement, command or aid of the principal perpetrator.”

319 N.C. 620, 626, 356 S.E.2d 340, 344 (1987). Defendant’s reliance on this language

from Davis is misplaced. This language in Davis was meant to disavow our prior

decision in State v. Hunter to the extent that Hunter concluded that a jury instruction

was proper when it failed to inform the jury that a defendant’s counsel to the

perpetrator must have a causal connection to the crime in order for the defendant to

be found to have aided and abetted the principal. See id. at 626, 356 S.E.2d at 344.

Accordingly, the Court in Davis did not hold that multiple elements of aiding and

abetting could not be supported by the same evidence. See id. at 626, 356 S.E.2d at

344.

Further, defendant relies on our decision in Gallimore v. Marilyn’s Shoes for

the proposition that distinct evidence is needed to support each element. 292 N.C.

399, 233 S.E.2d 529 (1977). Defendant’s reliance on our decision in Gallimore is

misplaced. Gallimore addressed whether a claimant’s injury was compensable under

the Workmen’s Compensation Act and, therefore, that case is plainly inapplicable to

resolving the issue here. See Gallimore, 292 N.C. at 402, 233 S.E.2d at 531.

Accordingly, defendant has failed to support his rule that distinct evidence is needed

in support of each element of aiding and abetting.

Second, in the light most favorable to the State, defendant’s payments to

Ballentine were only part of the evidence which tended to demonstrate defendant’s

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Opinion of the Court

guilt. Therefore, even assuming arguendo that single piece of evidence cannot be used

to support multiple elements of aiding and abetting, the State presented sufficient

evidence that defendant aided and abetted Ballentine. Specifically, the State

presented evidence at trial that defendant (1) met with Ballentine and agreed to

participate in the scheme; (2) sent text messages instructing Ballentine to enter the

fraudulent motions to set aside in specific cases; and (3) paid Ballentine for entering

the fraudulent motions. In the light most favorable to the State, the evidence tended

to show that Ballentine entered the fraudulent motions, and that defendant

“knowingly advised, instigated, encouraged, procured, or aided” Ballentine. Goode,

350 N.C. at 260, 512 S.E.2d at 422 (citing Bond, 345 N.C. at 24, 478 S.E.2d at 175).

In the light most favorable to the State, this evidence also tended to show that

defendant’s actions “caused or contributed” to Ballentine entering the fraudulent set

aside motions. Goode, 350 N.C. at 260, 512 S.E.2d at 422 (emphasis added) (citing

Bond, 345 N.C. at 24, 478 S.E.2d at 175).

Accordingly, we conclude that the State’s evidence was sufficient to support

defendant’s conviction on the theory that defendant aided and abetted Ballentine in

carrying out the scheme.

ii. Obtaining Property by False Pretenses

We conclude that the State presented sufficient evidence that defendant

obtained a thing of value to support his conviction for obtaining property by false

pretenses.

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Opinion of the Court

A person obtains property by false pretenses when that person

knowingly and designedly by means of any kind of false
pretense whatsoever, whether the false pretense is of a
past or subsisting fact or of a future fulfillment or event,
obtain or attempt to obtain from any person within this
State any money, goods, property, services, chose in action,
or other thing of value with intent to cheat or defraud any
person of such money, goods, property, services, chose in
action or other thing of value

N.C.G.S. § 14-100 (2017).

Defendant challenges the sufficiency of the evidence supporting his conviction

for obtaining property by false pretenses on the basis that the State presented

insufficient evidence that defendant obtained a “thing of value” within the meaning

of N.C.G.S. § 14-100. Specifically, defendant argues that “[i]n the light most favorable

to the State, [defendant] did not obtain any property of the State or the School Board,”

because the fraudulent representations merely resulted in the “elimination of a

potential future liability.”

Assuming arguendo that the elimination of a potential future liability does not

constitute “property” under N.C.G.S. § 14-100, that result is not dispositive. The

statute does not only cover instances in which a defendant obtains “property,” it also

applies when a defendant “obtain[s] or attempt[s] to obtain . . . any . . . other thing of

value.” N.C.G.S. § 14-100 (emphases added). The fact that the statute imparts

criminal liability when a defendant even attempts to obtain any “other thing of value”

guides this Court in deciding to apply a broader definition of “thing of value” than

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Opinion of the Court

suggested by defendant. The evidence here shows that defendant and Ballentine,

through their actions, attempted to surreptitiously divert attention from sums of

bond money by altering bond forfeiture notations in court files. At a minimum, this

was an attempt to reduce the amount that defendant’s bail bond company was

required to pay as surety for forfeited bonds and, therefore, constitutes a “thing of

value” under N.C.G.S. § 14-100.

Accordingly, we conclude that defendant did obtain a “thing of value” under

N.C.G.S. § 14-100 and, therefore, defendant’s challenge to the sufficiency of the

State’s evidence to support his obtaining property by false pretenses conviction is

unavailing.

Conclusion

Because we conclude that the State presented sufficient evidence that

defendant aided and abetted Ballentine and that he obtained a thing of value, we

affirm the decision of the Court of Appeals as to those issues. However, we modify the

decision of the Court of Appeals because we conclude that defendant did preserve

each of his challenges to the sufficiency of the State’s evidence.

MODIFIED AND AFFIRMED.

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