STATE OF NORTH CAROLINA v. GERALDINE LEWIS RAMOS, Defendant
NO. COA07-994
Filed: 18 November 2008
1.
Crimes, Other--damaging computer or computer network–willfulness--sufficiency
of evidence
The trial court did not err by denying defendant’s motion to dismiss the charge of
damaging a computer or computer network in violation of N.C.G.S. § 14-455(a), even though
defendant contends the State presented insufficient evidence that she acted willfully, because: (1)
defendant’s argument is based on her own testimony, and it overlooks the fact that only the
State’s evidence is looked at on appeal from the denial of a motion to dismiss; (2) a defendant’s
evidence may be considered only if it explains, clarifies, or is not inconsistent with the State’s
evidence; (3) willfulness involves a state of mind ordinarily proven by circumstantial evidence;
and (4) the State presented evidence that when defendant’s employment was terminated, she
became enraged and her words and her body language were very violent; defendant refused to
give back her keys until she got her paycheck which was typically not distributed until the end of
the month; the critical files were found missing from the employer’s server shortly after
defendant had returned from her office; the police discovered the missing files on defendant’s
flash drive with 80% of them deleted or deleted and overwritten; defendant told the police she
would give the files back when she got her paycheck; and defendant admitted at trial that she
deleted computer files including curriculum and grant-writing files even though she claimed her
boss had given her permission to delete her personal files which she interpreted to include workrelated files.
2.
Crimes, Other--damaging computer or computer network--instructions–willfulness--acting without authorization
The trial court erred by instructing the jury as to the elements of the offense of damaging
a computer or computer network under N.C.G.S. § 14-455(a), and defendant is entitled to a new
trial, because: (1) the trial court’s instruction that defendant acted without authorization did not
satisfy the requirement that the jury be instructed as to willfulness when the General Assembly
intended to require proof of both willfulness and lack of authorization; (2) the showing that an
act was intentional is not the same as a showing that the act was willful; (3) a jury could
reasonably find that defendant intended only to delete files that she believed her boss consented
to her deleting, and there is no willful and knowing violation of a statute when defendant
believed she had a bona fide right to do so; and (4) a jury could also reasonably believe that any
deletion of the files was accidental based on defendant’s testimony that she did not intend to
delete the TAP files and did not believe she could enter those files while her boss was working
on them.
Judge TYSON concurring in part and dissenting in part.
Appeal by defendant from judgment entered 14 December 2006 by
Judge Narley L. Cashwell in Wake County Superior Court.
the Court of Appeals 17 January 2008.
Heard in
-2Attorney General Roy Cooper, by Assistant Attorney General
Catherine F. Jordan, for the State.
Peter Wood for defendant-appellant.
GEER, Judge.
Defendant Geraldine Lewis Ramos appeals from her conviction of
damaging a computer or computer network in violation of N.C. Gen.
Stat. § 14-455(a) (2007).
In order to obtain a conviction under
that statute, the State must prove the defendant acted "willfully."
We agree with defendant that the trial court erred by failing to
instruct
the
jury
that
it
was
required
to
determine
defendant deleted files on the computer willfully.
whether
Because there
is a reasonable possibility that the jury might have reached a
different verdict if properly instructed, we must grant defendant
a new trial.
Facts
The State's evidence tended to show the following facts.
Defendant was hired as a community outreach coordinator by the
Latin American Resource Center ("LARC") on 15 May 2005.
supervisor was LARC's director and founder, Aura Camacho-Maas.
Her
At
that time, LARC had three full-time employees, including CamachoMaas and defendant, and eight part-time employees.
computer network with five computers.
LARC had a
-3One
of
defendant's
responsibilities
proposals for the organization.
completed by 1 August 2005.
was
to
write
grant
One proposal was supposed to be
On 1 August 2005, however, the
proposal was not complete, and defendant and Camacho-Maas had to
work until midnight to get the proposal done.
During the week prior to 15 August 2005, Camacho-Maas assigned
defendant a second grant proposal due on 15 August 2005.
The
proposal required defendant to access computer files related to
LARC's teacher apprenticeship program ("TAP").
When, on 15 August
2005, the proposal was still not completed, Camacho-Maas and
defendant, who were the only employees in the office, had to work
on the grant proposal together.
On that same day, Camacho-Maas told defendant that she was
being terminated because she was unable to do the work required for
her position.
When Camacho-Maas asked defendant for her keys to
the office, defendant refused to hand them over until she received
her paycheck.
Camacho-Maas explained to defendant that she would
receive her paycheck at the end of the month as usual, and
defendant left the building.
Camacho-Maas followed defendant and
told the receptionist that defendant had been terminated from her
job and was not to enter the building without Camacho-Maas being
present.
The receptionist requested that Camacho-Maas send an e-
mail confirming that instruction.
While Camacho-Maas was in her office typing the e-mail, she
heard
noises
in
the
lobby.
When
she
went
to
see
what
was
happening, defendant and the receptionist were coming out of
-4defendant's office with drums defendant had brought to LARC for a
summer art program.
After they left, Camacho-Maas closed the door
to defendant's office and went back into her own office.
Moments later, Camacho-Maas realized the receptionist and
defendant were again coming out of defendant's office.
Camacho-
Maas became concerned, went into defendant's office, sat down at
defendant's computer, and discovered that the TAP files were
missing from LARC's server. Camacho-Maas had seen the TAP files on
the server earlier that day before she had terminated defendant's
employment.
Only LARC employees have access to the TAP files, and
Camacho-Maas had not authorized anyone to move or remove the TAP
files. Camacho-Maas called the police, and Detective B.R. Williams
of the Raleigh Police Department was assigned to investigate the
case.
On 16 August 2005, defendant returned to LARC, and CamachoMaas called Detective Williams.
He went to LARC, met defendant,
and told her why he was there.
Defendant admitted that she had
copied files onto her flash drive.
Detective Williams asked
defendant to accompany him to the police station so that he could
copy the contents of the flash drive.
A member of the Raleigh
Police Department's cybercrimes unit found approximately 304 LARC
files on defendant's flash drive, 80% of which were TAP files that
were "either deleted or deleted and overwritten."
Defendant was charged with damaging a computer system or
computer network.
On 3 November 2005, defendant pled guilty in
district court to damaging a computer.
The trial court sentenced
-5defendant to a suspended sentence of 45 days imprisonment and 12
months supervised probation.
Defendant appealed to superior court
on 7 November 2005.
During
the
trial
in
superior
court,
defendant
presented
evidence that she had researched and developed a curriculum that
cost $5,000.00 to $6,000.00 — a curriculum that she knew CamachoMaas would want. Upon her termination, defendant told Camacho-Maas
that she was going to delete her work off the computer.
Camacho-
Maas responded that defendant's work was not good and, therefore,
she did not care if defendant deleted the files.
Defendant
testified that she never deleted the TAP files, but rather only
deleted the research she had done for the curriculum and the part
of the grant proposal that she had written.
Defendant also
testified that Camacho-Maas knew that defendant was deleting files
and never said anything about what defendant was doing.
The jury found defendant guilty of damaging a computer system
or computer network on 14 December 2006.
The court sentenced
defendant
days
to
a
suspended
supervised probation.
sentence
of
45
and
18
months
Defendant was also ordered to pay a fine in
the amount of $3,107.50 and to complete 100 hours of community
service.
Defendant timely appealed to this Court.
I
[1] Defendant first contends that the trial court erred in
denying her motion to dismiss.
When considering a motion to
dismiss, the trial court must determine whether the State presented
substantial evidence of each element of the crime and of the
-6defendant's being the perpetrator.
State v. Robinson, 355 N.C.
320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 154 L.
Ed. 2d 404, 123 S. Ct. 488 (2002).
"'Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'"
State v. Matias, 354 N.C. 549, 552, 556
S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566,
313 S.E.2d 585, 587 (1984)).
The evidence must be viewed "in the
light most favorable to the State, giving the State the benefit of
every reasonable inference and resolving any contradictions in its
favor."
State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct.
2565 (1995).
N.C.
Gen.
Stat.
§
14-455(a),
the
offense
charged
in
defendant's indictment, states: "It is unlawful to willfully and
without
authorization
alter,
damage,
or
destroy
a
computer,
computer program, computer system, computer network, or any part
thereof."
Thus, a violation of this statute requires proof: (1)
that the defendant altered, damaged, or destroyed a computer,
computer program, computer system, computer network, or any part
thereof, (2) that the defendant did so willfully, and (3) without
authorization.
In this case, defendant argues only that the State presented
insufficient evidence that she acted willfully.
She asserts that
any files deleted were her own personal property, were deleted with
the permission of the director of LARC, or were accidentally
deleted. Defendant's argument is, however, based solely on her own
-7testimony.
Defendant overlooks the fact that, on appeal from the
denial of a motion to dismiss, we look only
evidence.
at the State's
State v. Barnett, 141 N.C. App. 378, 382-83, 540 S.E.2d
423, 427 (2000), appeal dismissed and disc. review denied in part,
353 N.C. 527, 549 S.E.2d 552, aff'd per curiam in part, 354 N.C.
350,
554
S.E.2d
644
(2001).
A
defendant's
evidence
may
be
considered only if it "'explains, clarifies or is not inconsistent
with the State's evidence.'"
Id. (quoting State v. Walker, 332
N.C. 520, 530, 422 S.E.2d 716, 722 (1992), cert. denied, 508 U.S.
919, 124 L. Ed. 2d 271, 113 S. Ct. 2364 (1993)).
Because "willfulness" involves a state of mind, "'ordinarily
it must be proved, if proven at all, by circumstantial evidence,
that is, by proving facts from which the fact sought to be proven
may be reasonably inferred.'"
State v. Alexander, 337 N.C. 182,
188, 446 S.E.2d 83, 86-87 (1994) (quoting State v. Ferguson, 261
N.C. 558, 561, 135 S.E.2d 626, 629 (1964)).
In this case, the
State presented evidence that when defendant's employment was
terminated, she "became enraged" and her "words and her body
language were . . . very violent."
Defendant also would not give
Camacho-Maas her keys without immediately getting her paycheck.
After Camacho-Maas explained that she would have to wait until the
end of the month for her paycheck, defendant refused to hand over
her keys and left.
The critical files were found missing from the LARC server a
short while later, after defendant had returned to her office. The
police discovered the missing files on defendant's flash drive with
-880% of them deleted or deleted and overwritten. When questioned by
the police, defendant stated that "she would give Miss CamachoMaas' files back when she got her paycheck."
At trial, defendant
admitted deleting LARC computer files, including curriculum files
and grant-writing files, although she claimed that Camacho-Maas had
given her permission to delete her "personal files," which she
interpreted to include work-related files.
This evidence was sufficient to allow a jury to find that
defendant deleted computer files willfully.
The trial court,
therefore, properly denied the motion to dismiss.
II
[2]
Defendant
instructing
next
contends
the
trial
court
erred
in
the jury as to the elements of the offense under N.C.
Gen. Stat. § 14-455(a).
Defense counsel requested in writing the
following instruction:
For you to find the defendant guilty you must
find that she
1.
Willfully, that is intentionally and
without an honest belief that there is an
excuse or justification for it[,]
2.
Without the knowledge or consent of the
owner, Latin American Resource Center[,]
3. Damaged, Altered, or Destroyed a computer,
computer network, computer program, computer
system or part thereof of the Latin American
Resource Center[.]
The court denied defense counsel's requested instruction and the
court submitted the following instruction to the jury:
The defendant, Geraldine Lewis Ramos, has
been charged with the misdemeanor of damaging
-9a compute [sic] system or computer network, or
any part thereof.
For you to find the defendant guilty of
this offense the State must prove two things:
First, that the defendant damaged a
computer system or computer network or any
part thereof by deleting a file or files from
the computer system or computer network.
Second, that the defendant did so without
authorization.
A
person
is
without
authorization when although the person has the
consent or permission of owner [sic] to access
a computer system or computer network the
person does so in a manner which exceeds the
consent or permission.
If you find from the evidence beyond a
reasonable doubt that on or about August the
15th,
2005
the
defendant,
without
authorization, damaged a computer system or
computer network, it would appeal [sic] your
duty to return a verdict of guilty.
Defendant
contends
that
the
trial
court's
instruction
was
insufficient because it did not instruct the jury that it was
required to find that defendant acted willfully.
The State contends that we should review the trial court's
instructions to the jury under an abuse of discretion standard.
The State has, however, mistakenly lumped all jury instruction
issues under one standard of review.
Our appellate courts have
repeatedly held that "[a] trial judge is required by N.C.G.S. §
15A-1231 and N.C.G.S. § 15A-1232 to instruct the jury on the law
arising on the evidence. This includes instruction on the elements
of the crime."
State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745,
748 (1989) (emphasis added).
See also State v. Gooch, 307 N.C.
253, 256, 297 S.E.2d 599, 601 (1982) ("The trial court must charge
-10the essential elements of the offense."); State v. Jarrett, 137
N.C. App. 256, 265, 527 S.E.2d 693, 699 ("The trial court is
required to instruct the jury as to the essential elements of the
offense charged and when the court undertakes to define the law, it
must do so correctly."), disc. review denied, 352 N.C. 152, 544
S.E.2d 233 (2000).
The appellate courts have recognized that a trial judge has
discretion in the manner in which he charges the jury, "'but he
must explain every essential element of the offense charged.'"
State v. Valladares, 165 N.C. App. 598, 607, 599 S.E.2d 79, 86
(emphasis added) (quoting State v. Young, 16 N.C. App. 101, 106,
191 S.E.2d 369, 373 (1972)), appeal dismissed and disc. review
denied, 359 N.C. 196, 608 S.E.2d 66 (2004).
See also State v.
Holmes, 120 N.C. App. 54, 71, 460 S.E.2d 915, 925 ("While the court
must explain each essential element of the offense charged, the
manner in which it chooses to do so is within its discretion."),
disc. review denied, 342 N.C. 416, 465 S.E.2d 545 (1995).
This
Court distinguished the aspects of jury instructions subject to
discretion from those that are mandatory in State v. Wallace, 104
N.C. App. 498, 504, 410 S.E.2d 226, 230 (1991) (internal citations
omitted), appeal dismissed and disc. review denied, 331 N.C. 290,
416 S.E.2d 398, cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241, 113
S. Ct. 321 (1992):
In North Carolina, a trial judge is not
required to follow any particular form in
giving instructions and has wide discretion in
presenting the issues to the jury. A judge is
not
required
to
state,
summarize,
or
recapitulate the evidence, or to explain the
-11application of the law to
although he may elect to
discretion.
A trial judge
charge every essential element
the evidence,
do so in his
must, however,
of the offense.
In short, if "willfulness" is an element of an offense under N.C.
Gen. Stat. § 14-455(a), then the trial court was required to
include "willfulness" in its instructions.
The State does not dispute either that willfulness is an
element of N.C. Gen. Stat. § 14-455(a) or that the trial court's
instruction failed to instruct the jury that defendant must have
acted willfully.
The State, however, contends that no error
occurred because the trial court instructed the jury that defendant
must have acted "without authorization."
According to the State,
"without authorization" and "willfully" are synonymous concepts.
We cannot agree.
Our General Assembly defined "authorization" for purposes of
computer-related crimes, including N.C. Gen. Stat. § 14-455(a), as
meaning "having the consent or permission of the owner, or of the
person licensed or authorized by the owner to grant consent or
permission to access a computer, computer system, or computer
network in a manner not exceeding the consent or permission." N.C.
Gen. Stat. § 14-453(1a) (2007).
As a result, a person acts
"without authorization" if she accesses a computer without the
consent or permission of the owner or in a manner exceeding any
consent or permission.
On the other hand, "'[w]ilful' as used in
criminal statutes means the wrongful doing of an act without
justification or excuse, or the commission of an act purposely and
deliberately in violation of law."
State v. Arnold, 264 N.C. 348,
-12349,
141
S.E.2d
473,
474
(1965).
One
may
act
"without
authorization," but still not act willfully. For example, a person
who accidentally deletes files is not acting willfully, but has
deleted the files without authorization.
Consequently, the trial court's instruction that the jury was
required to find that defendant acted "without authorization" did
not satisfy the requirement that the jury be instructed as to
willfulness.
A contrary interpretation of the statute would be
inconsistent with established principles of statutory construction:
"[W]e are guided by the principle of statutory
construction that a statute should not be
interpreted in a manner which would render any
of its words superfluous.
We construe each
word of a statute to have meaning, where
reasonable and consistent with the entire
statute, because it is always presumed that
the
legislature
acted
with
care
and
deliberation."
State v. Haddock, 191 N.C. App. 474, 482, 664 S.E.2d 339, 345
(2008) (quoting State v. Coffey, 336 N.C. 412, 417-18, 444 S.E.2d
431, 434 (1994)).
The State's contention would require that we
view either "willfully" or "without authorization" as redundant or
surplusage.
A more reasonable construction of the statute —
especially given the plain meaning of the words — is that the
General Assembly intended to require proof both of willfulness and
lack of authorization.
See Porsh Builders, Inc. v. City of
Winston-Salem, 302 N.C. 550, 556, 276 S.E.2d 443, 447 (1981) ("It
is presumed that the legislature intended each portion to be given
full
effect
surplusage.").
and
did
not
intend
any
provision
to
be
mere
-13When a trial court fails to instruct a jury that the State was
required to prove willfulness as an element of a crime, the court
has erred.
582,
584
See State v. Maxwell, 47 N.C. App. 658, 660, 267 S.E.2d
(holding
that
trial
court
"should
have
charged
on
willfulness as an element"), appeal dismissed and disc. review
denied, 301 N.C. 102, 273 S.E.2d 307 (1980).
"Ordinarily, failure
to instruct on each element of a crime is prejudicial error
requiring a new trial."
State v. Whiteley, 172 N.C. App. 772, 780,
616 S.E.2d 576, 581 (2005). Nevertheless, a failure to instruct on
willfulness may amount to harmless error.
N.C.
App.
608,
611,
281
S.E.2d
404,
See State v. Rose, 53
406
(1981)
(finding
no
prejudice when court failed to instruct jury that defendant's
escape from prison must have been willful because "nothing in the
record in any way indicates that defendant's escape was anything
other than 'willful'"); Maxwell, 47 N.C. App. at 660, 267 S.E.2d at
584 (finding no prejudice because "all the evidence shows that if
defendant
took
indecent
liberties
with
the
child
he
did
so
willfully").
In arguing that defendant was not prejudiced by any error, the
State argues that "defendant admitted she deleted LARC's computer
files."
It is, however, well established that a showing that an
act was intentional is not the same as a showing that the act was
willful.
As this Court explained in State v. Whittle, 118 N.C.
App. 130, 135, 454 S.E.2d 688, 691 (1995) (quoting State v.
Stephenson, 218 N.C. 258, 264, 10 S.E.2d 819, 823 (1940)), "[t]he
word 'willfully' means 'something more than an intention to commit
-14the offense.' . . . 'It implies committing the offense purposely
and designedly in violation of law.'"
See also State v. Clifton,
152 N.C. 800, 802, 67 S.E. 751, 752 (1910) ("The word willful as
used within the meaning of the statute implies something more than
a mere voluntary purpose.
willful
means
not
only
When used in criminal statutes the word
designedly,
but
also
with
a
'bad
purpose.'"); Glenn-Robinson v. Acker, 140 N.C. App. 606, 619, 538
S.E.2d
601,
611
(2000)
(holding
that
when
statute
requires
willfulness, word "willfully" means more than intention to commit
offense), appeal dismissed and disc. review denied, 353 N.C. 372,
547 S.E.2d 811 (2001).
Here, defendant presented evidence that she believed CamachoMaas had authorized her to delete files amounting to her own work.
Defendant testified that, at the time of her termination, defendant
told Camacho-Maas, "since my work is no good I guess you won't mind
if I take my work off computer [sic]."
According to defendant,
Camacho-Maas responded, "this was no consequence to her, that the
work was not good, and it was no consequence." Defendant testified
that
Camacho-Maas
followed
defendant
into
her
office
while
defendant was deleting the files. Defendant testified Camacho-Maas
"didn't say anything, but she knew what I was doing at that time,
reason [sic] I walked back down to the room."
Defendant claimed
that the only files that she deleted were:
[t]he curriculum, research that I had done for
the curriculum. I deleted part of the grant
which was the grant that I had written.
I
think that was about three, three files, but
it was not the TAP file.
-15TAP file was in the server.
It was a
server and, in order for, to go into the
server. She had already worked in the server,
so I could not [sic] to go into the TAP file.
I would have [sic] go into the server.
Server couldn't be but one person going into
it at the time, so I don't know.
Based on this testimony, the jury could reasonably find that
defendant
intended
only
to
delete
files
that
she
believed
—
according to the State, incorrectly — Camacho-Maas had consented to
her deleting.
As our Supreme Court has held, "[n]either does one
'willfully and knowingly' violate a statute when he does that which
he believes he has a bona fide right to do."
State v. Fraylon, 240
N.C. 365, 373, 82 S.E.2d 400, 405 (1954).
A jury could further
find, based on defendant's testimony that she did not intend to
delete the TAP files and did not believe she could enter the TAP
files while Camacho-Maas was working on them, that any deletion of
the files was accidental.
Thus, the record contains evidence that
would
find
allow
a
jury
to
that
authorization, but not willfully.
she
deleted
files
without
The trial court's failure to
include willfulness in its instructions cannot, therefore, be
deemed harmless error.
Accordingly, defendant is entitled to a new trial. Because of
our disposition of this appeal, we need not address defendant's
remaining contentions.
New trial.
Judge STROUD concurs.
-16Judge TYSON concurs in part and dissents in part in a separate
opinion.
TYSON, Judge concurring in part and dissenting in part.
I fully concur with that portion of the majority’s opinion
affirming the trial court’s denial of Geraldine Lewis Ramos’s
(“defendant”) motion to dismiss based upon the sufficiency of the
evidence.
Although the trial court failed to instruct the jury
that the State was required to prove the element of willfulness,
defendant failed to show any prejudice by this omission and is not
entitled to a new trial.
I disagree with that portion of the
majority’s opinion granting defendant a new trial based upon the
instructions submitted to the jury.
I.
I respectfully dissent.
Standard of Review
This
Court
reviews
jury
instructions
contextually and in its entirety. The charge
will be held to be sufficient if “it presents
the law of the case in such manner as to leave
no reasonable cause to believe the jury was
misled or misinformed . . . .” The party
asserting error bears the burden of showing
that the jury was misled or that the verdict
was affected by [the] instruction. “Under such
a standard of review, it is not enough for the
appealing party to show that error occurred
in the jury instructions; rather, it must be
demonstrated that such error was likely, in
light of the entire charge, to mislead the
jury.”
State v. Blizzard, 169 N.C. App. 285, 296–97, 610 S.E.2d 245, 253
(2005) (quoting Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d
841, 847 (2002)) (emphasis supplied).
-17II.
The
majority’s
opinion
Analysis
holds
the
trial
court
committed
reversible error and awards defendant a new trial because the trial
court failed to instruct the jury that the State was required to
prove that defendant “willfully” deleted the files off of LARC’s
computer network.
I disagree.
It is well-established that a trial judge is required to
instruct the jury on every essential element of the crime charged.
State v. Mundy, 265 N.C. 528, 529, 144 S.E.2d 572, 573 (1965);
State v. Hunt, 339 N.C. 622, 649, 457 S.E.2d 276, 292 (1994).
Here, defendant was charged and convicted of a violation of N.C.
Gen. Stat. § 14-455, which provides:
It is unlawful to willfully and without
authorization alter, damage, or destroy a
computer, computer program, computer system,
computer network, or any part thereof. A
violation of this subsection is a Class G
felony if the damage caused by the alteration,
damage, or destruction is more than one
thousand dollars ($1,000). Any other violation
of this subsection is a Class 1 misdemeanor.
N.C. Gen. Stat. § 14-455(a) (2005) (emphasis supplied).
The trial
court correctly instructed the jury on the element of “without
authorization[,]” but failed to instruct the jury on willfulness.
Based upon principles of statutory interpretation and contrary to
the
State’s
contention,
the
terms
authorization” are not interchangeable.
“willfully”
and
“without
See Lithium Corp. of Am.
v. Town of Bessemer City, 261 N.C. 532, 535, 135 S.E.2d 574, 577
(1964) (“Ordinarily, when the conjunctive “and” connects words,
-18phrases
or
clauses
of
a
statutory
sentence,
they
are
to
be
considered jointly.” (Citation omitted)).
The majority’s opinion correctly points out that the failure
to instruct the jury on the element of willfulness has been
repeatedly held to be harmless error.
See State v. Rose, 53 N.C.
App. 608, 611, 281 S.E.2d 404, 406 (1981); State v. Maxwell, 47
N.C. App. 658, 660–61, 267 S.E.2d 582, 584, disc. rev. denied, 301
N.C. 102, 273 S.E.2d 307 (1980).
Here, our task is to determine
whether the trial court’s error prejudiced defendant to entitle her
to a new trial.
See N.C. Gen. Stat. § 15A-1443(a) (2005) (“A
defendant is prejudiced by errors relating to rights arising other
than under the Constitution of the United States when there is a
reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the trial
out of which the appeal arises.
The burden of showing such
prejudice under this subsection is upon the defendant.” (Emphasis
supplied)).
Although defendant presented evidence tending to show that her
supervisor, Aura Camacho-Mass (“Camacho-Mass”), had authorized
defendant to delete her personal files from LARC’s computer, other
overwhelming
evidence
shows
that
defendant’s
actions
were
unequivocally willful. At trial, Camacho-Mass recounted the events
which
took
termination.
place
after
she
had
informed
defendant
of
her
Camacho-Mass testified defendant “became enraged.
Her words and her body language were, were [sic] very violent.
And
she was crying in my office after she told me many things.”
-19Camacho-Mass further testified that defendant stated she “was a
fake” and that “she’ll destroy me in the agency.”
Defendant
refused to return her office keys and immediately demanded her
paycheck.
Camacho-Mass informed defendant that she would receive
her paycheck at the end of the month.
After defendant left the
building, Camacho-Mass informed the receptionist that defendant was
not to be allowed to re-enter the building without her presence.
Shortly thereafter, Camacho-Mass heard noises outside her
office and observed defendant and the receptionist exit defendant’s
office
carrying
program.
drums
that
were
used
in
the
agency’s
summer
Camacho-Mass testified she refrained from commenting on
defendant’s presence because she believed the drums belonged to
defendant.
Camacho-Mass
subsequently
observed
defendant
and
the
receptionist exit defendant’s office a second time and became
“really concerned.” Camacho-Mass sat down at defendant’s computer,
opened up the file server, and discovered that all the Teacher
Apprenticeship Program (“TAP”) files had been deleted from the
agency’s
actions
computer
to
the
network.
police.
Camacho-Mass
Camacho-Mass
reported
testified
defendant’s
that
neither
defendant nor other personnel had permission to duplicate or remove
the TAP files from LARC’s network.
Raleigh Police Detective James Neville (“Detective Neville”)
of the cyber crimes unit, confirmed that 304 files were stored on
LARC’s flash drive and approximately 80 percent of these files were
either deleted or overwritten.
-20The following day, defendant returned to her former workplace
and met with Detective B.R. Williams to discuss the missing files.
Defendant admitted she had copied the files onto her personal thumb
drive “because they [were] her work.”
However, defendant also
stated “she would give Miss Camacho-Mass’ files back when she got
her paycheck.”
The jury also heard additional evidence regarding defendant’s
actions after this incident occurred.
Defendant sent a “very
incriminating letter” to all of the board members implying that
Camacho-Mass
had
engaged
in
misappropriating agency funds.
“racial
behavior”
and
was
Defendant’s demeanor, her threat
that she would “destroy” Camacho-Mass, her refusal to surrender her
keys after termination, and her repeated returns to her former
office
after
termination,
the
circumstances
surrounding
the
deletion of the files, and defendant’s statement that she had
copied the files and would give the files back when “she got her
paycheck” unequivocally show defendant’s actions in duplicating and
removing the files was willful. Based upon the preceding evidence,
no reasonable probability exists that a different result would have
been reached at trial if the trial court had instructed the jury on
the element of willfulness.
N.C. Gen. Stat. § 15A-1443.
Defendant has failed to show she was prejudiced by the trial
court’s jury instructions and is not entitled to a new trial.
Because I would hold that defendant is not entitled to a new trial
on this issue, I address defendant’s remaining assignment of error.
III.
Sentencing
-21Defendant argues the trial court erred by sentencing her to a
“harsher sentence” than she received in the district court.
A sentence within statutory limits is
presumed to be regular. Where the record,
however, reveals the trial court considered an
improper matter in determining the severity of
the sentence, the presumption of regularity is
overcome. It is improper for the trial court,
in sentencing a defendant, to consider the
defendant’s decision to insist on a jury
trial. Where it can be reasonably inferred the
sentence imposed on a defendant was based,
even in part, on the defendant’s insistence on
a jury trial, the defendant is entitled to a
new sentencing hearing.
State v. Peterson, 154 N.C. App. 515, 517, 571 S.E.2d 883, 885
(2002) (internal citation and quotation omitted).
In district
court, defendant was sentenced to a suspended sentence of fortyfive days imprisonment and was placed on supervised probation for
a period of twelve months.
Defendant appealed to the superior
court and asserted her right to a jury trial.
After the jury had returned a guilty verdict, the superior
court imposed a suspended sentence of forty-five days imprisonment
and placed defendant on supervised probation for a period of
eighteen months.
It is undisputed that the suspended sentence
defendant received in superior court was authorized by statute,
rested in the presumptive range, and was identical to the suspended
sentence she received in district court. Before the superior court
judge imposed defendant’s sentence, he stated:
I hope that your counsel told you, as he
should have, that I am not bound to do what
that district court judge did, and likely to
do that, because up here we don’t do that.
-22They generally give minimum sentences down in
district court. But any, any [sic] person who
appeals a minimum sentence of the district
court, thinks [they are] going to get a better
result that you got get [sic] from those
people is a fool.
Any lawyer who tells someone to take up an
appeal of a minimum sentence out of district
court is equally unwise.
Defendant argues the preceding statements are evidence that
her sentence was based on irrelevant and improper matters.
disagree.
Nothing
in
the
trial
court’s
comments
reveals
I
it
considered an improper matter in determining the severity of
defendant’s sentence or referred to her “insistence on a jury
trial.”
Id.
The trial court imposed the same suspended sentence
defendant had received in district court.
I vote to overrule this
assignment of error.
IV.
Conclusion
The trial court properly denied defendant’s motion to dismiss.
The trial court failed to instruct the jury on the element of
willfulness contained in N.C. Gen. Stat. § 14-455.
However, the
totality of the evidence presented at trial shows defendant’s
actions in copying the files to her personal thumb drive and
deleting
the
files
off
of
LARC’s
network
were
unequivocally
unlawful and done “willfully” and without authorization. N.C. Gen.
Stat. § 15A-1443.
Defendant has failed to show she was prejudiced
by the trial court’s erroneous jury instruction and is not entitled
to a new trial.
Nothing in the record supports a reasonable inference that the
trial court considered “improper matter[s]” in sentencing defendant
-23or that “the sentence imposed on [] defendant was based, even in
part, on [] defendant’s insistence on a jury trial[.]” Peterson,
154 N.C. App. at 517, 571 S.E.2d at 885.
Defendant received a fair
trial, free from prejudicial errors she preserved, assigned, and
argued.
I respectfully dissent.
