State v. Bennett

353 S.E.2d 690 (1987)

STATE of North Carolina v. Mary Alice BENNETT.

No. 8617SC1166.

Court of Appeals of North Carolina.

March 17, 1987.

*691 Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. D. David Steinbock, Raleigh, for the State.

Kennedy, Kennedy, Kennedy and Kennedy by Harvey L. Kennedy and Harold L. Kennedy, III, Winston-Salem, for defendant-appellant.

HEDRICK, Chief Judge.

Defendant contends the trial court erred in denying her motion to dismiss at the close of all the evidence. She argues that the evidence presented at trial, when taken in the light most favorable to the State, is insufficient to prove all of the elements of the offense of obtaining property by false pretense. We agree.

On a motion to dismiss, all evidence, whether introduced by the State or defendant, which will support the charges contained in the bill of indictment, is considered in the light most favorable to the State and every reasonable inference, deducible from the evidence, is drawn in favor of the State. State v. McCoy, 303 N.C. 1, 277 S.E.2d 515 (1981). Defendant's evidence may be considered insofar as it explains or clarifies or is not inconsistent with the State's evidence. Id.

G.S. 14-100, in pertinent part, provides:

(a) If any person shall 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, such person shall be guilty of a felony, and shall be punished as a Class H felon.

An essential element of the crime described in G.S. 14-100 is that the act be done "knowingly and designedly ... with intent to cheat or defraud." Id. Intent is "seldom *692 provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred." State v. Hines, 54 N.C.App. 529, 533, 284 S.E.2d 164, 167 (1981). (Citations omitted.) In determining the absence or presence of intent, the jury may consider "the acts and conduct of the defendant and the general circumstances existing at the time of the alleged commission of the offense charged." Id.

The evidence introduced by the State in the present case tends to show that defendant obtained $208.00 from Minnie Price and $306.85 from Robert Price as premiums on insurance policies to be issued by United American Insurance Company. Evidence tending to show that defendant was not licensed to sell insurance for United American Insurance Company is not sufficient to raise an inference that defendant intended to "cheat or defraud" the Prices, nor does the evidence tending to show that defendant told them that the policies would be issued within five to six weeks raise any such inference, in light of the evidence tending to show that the insurance policies were in fact issued. There is no evidence in the record tending to show that defendant intended to cheat or defraud the Prices in any way. The evidence in the record discloses that defendant intended to sell the Prices insurance policies, and that is precisely what she did. While the evidence may be sufficient for the jury to find that defendant was not licensed to sell insurance for United American Insurance Company, and that she did in fact sell these two policies, she is not charged with such an offense.

The judgment appealed from is reversed.

Reversed.

WELLS and BECTON, JJ., concur.