              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-804

                               Filed: 5 January 2016

Wayne County, No. 12 CRS 053722

STATE OF NORTH CAROLINA

             v.

KEYSHAWN JONES


      Appeal by defendant from judgment entered 29 October 2014 by Judge

Kenneth F. Crow in Wayne County Superior Court. Heard in the Court of Appeals

17 December 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Rajeev K.
      Premakumar, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate Defender John F.
      Carella, for defendant-appellant.


      TYSON, Judge.


      Keyshawn Jones (“Defendant”) appeals from judgment entered after a jury

found him guilty of three counts of felony larceny. We vacate Defendant’s convictions.

                                   I. Background

      In 2010, Defendant was working as a commercial truck driver. Defendant

hired Scott Huebner (“Huebner”) as his agent. The two men never met in person, but

would communicate through e-mails, phone calls, and text messages. Under their
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arrangement, Defendant drove the routes and managed the loading and unloading of

pickups and deliveries, while Huebner managed the office work.

      After working together for approximately one and a half years, Huebner began

to contract primarily with EF Corporation, d/b/a WEST Motor Freight of PA (“WEST

Motor Freight”). Like many commercial transit companies, WEST Motor Freight

contracts with agencies, who in turn contract with individual drivers to transport and

deliver payloads. Shortly after Huebner made this transition, Defendant began

driving exclusively for WEST Motor Freight through Huebner.

      Sherry Hojecki (“Hojecki”) was in charge of the billing and settlement

department for WEST Motor Freight.           Hojecki was responsible for managing

payments to drivers, dubbed “settlements” because drivers are independent

contractors rather than employees.

      Some drivers, including Defendant, would receive advance payments, which

would be received in one of three common ways: (1) through a “Comdata card,” a

prepaid corporate debit card; (2) through an advance added to a regular settlement

payment; or, (3) through a “maintenance account.” Hojecki testified that money held

in a driver’s maintenance account “belongs to the driver.”

      To pay drivers, Hojecki uses a specialized computer system to create a

settlement statement. This statement lists the amount of money to be paid to a




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driver. The statement is uploaded into WEST Motor Freight’s accounts payable

system, and Hojecki transmits the actual payment.

      On or about 10 July 2012, Huebner contacted Hojecki on Defendant’s behalf to

inquire about the amount of money held in Defendant’s maintenance account.

Hojecki told Huebner there was approximately $1,200 in the account. Huebner

requested $1,200 be deposited in Defendant’s bank account, via direct deposit.

Hojecki created a settlement statement for the payment, uploaded it into the

accounting system, processed the direct deposit, and sent the transaction to the

appropriate bank for deposit into Defendant’s bank account.

      The morning after conducting this transaction, Hojecki prepared a physical

copy of the driver settlement report, which outlined the direct deposit she had made

the previous day. The physical copy was to be mailed to Defendant.

      While preparing the mailing, Hojecki realized she had keyed in an extra two

zeros on Defendant’s settlement statement, which resulted in a $120,000.00 payment

being made to Defendant’s account, rather than $1,200.00. After various deductions

and fees, $118,729.49 was deposited into Defendant’s bank account. Hojecki testified

the money errantly deposited above the amount in Defendant’s maintenance account

into Defendant’s bank account belonged to WEST Motor Freight.

      After realizing the error, Hojecki alerted her superior. Consistent with her

superior’s directives, she filled out a report, requested the transaction be stopped, and



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sent it to the bank. Hojecki later learned the bank was unable to stop the transaction,

and the money had been deposited into Defendant’s bank account. Hojecki contacted

Huebner and requested he contact Defendant to inform him a mistake had been made

and the transaction was being reversed.

      After speaking with Hojecki, Huebner called Defendant on 12 July 2012 to

“find out what needed to be done to make sure everything went the way it needed to.”

Huebner testified he called Defendant and told him a “transfer that was coming in

was going to be. . . for the wrong amount, and a reversal was put through, and that

[Defendant] needed to make sure that his bank account remained positive so there

were no issues.” Huebner elaborated:

             Once I told him that the transfer would come in and
             immediately reverse we did talk about the amount that
             would come in[.] . . . He did say that he’d be more than
             willing to take that amount and then work it off over time,
             which I told him would probably not be accepted by [WEST
             Motor Freight]. . . . I did tell him that if the bank account
             was negative and the reversal didn’t come through, that
             would be a problem, so make sure not to touch the money.
             . . . [Defendant] said that if the money didn’t come out he
             would just go ahead and write a check to [WEST Motor
             Freight] to give it back to them.

      The next day, Huebner again contacted Defendant and inquired about the

payment and the reversal. Huebner testified Defendant told him that his account

had the “exact amount in it that it was supposed to have,” so the reversal must have

been completed.



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      Huebner, Defendant’s agent, received notice from Hojecki that the transaction

was not able to be reversed.      Following a series of conversations, Defendant

eventually informed Huebner he had filed for bankruptcy and the bankruptcy courts

must have taken the erroneously transferred money. Huebner testified Defendant

affirmatively stated he did not write any checks or transfer any money out of the

account, after receiving Huebner’s phone call about the excess transfer.

      Donna Oldham (“Oldham”), a Vice President and City Officer at the North

Carolina State Employees’ Credit Union (“SECU”), was in charge of the day-to-day

operations of the West Ash Street branch of SECU in Goldsboro, North Carolina.

Oldham testified that on 15 July 2012, Defendant performed seven separate ATM

cash withdraws of $1,000 each at a SECU ATM.

      Oldham testified in addition to the seven ATM cash withdraws, Defendant

performed two “internet transfers,” of $10,000.00 each, from his checking and into a

savings account belonging to Defendant. Both of these transactions occurred on 15

July 2012.

      Terry Pridgen (“Pridgen”), a financial services representative with SECU, also

worked at the West Ash Street SECU branch in Goldsboro. She was tasked with,

among other duties, assisting members perform checking deposits and withdrawals.

Pridgen testified Defendant came into the West Ash Street branch on 16 July 2012

to perform several withdrawals from his account.



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      Pridgen noticed there was a recent large deposit into the account, so she asked

Defendant why such a large sum was deposited into his account. Pridgen testified

Defendant stated he “was in business with someone else, and that he had sold his

part out, so they directly deposited the money to him for his part of the business.”

      Defendant performed several transactions on 16 July 2012.             Defendant

purchased a cashier’s check payable to “Robert Browning, Chapter 13” in the amount

of $21,117.80, and a second cashier’s check payable to Marshall Coleman in the

amount of $2,000.00. Defendant also withdrew $66,744.00 and $10,988.00 in two

separate transactions, and used that money to purchase a third cashier’s check,

payable to himself, in the amount of $67,732.00.         Finally, Defendant deposited

$5,000.00 each into two accounts, belonging to Shaquida Lane and Sadie Jones,

respectively.

      On 23 July 2012, Defendant took the $67,732.00 cashier’s check into a SECU

branch on Wayne Memorial Drive in Goldsboro, where SECU senior teller Dianne

Stewart (“Stewart”) assisted him. Defendant advised Stewart he wished to deposit

$60,000.00 into an account held by Shaquida Lane, and the remainder to be given to

him in cash. Stewart assisted Defendant in completing the transactions.

      On 1 April 2013, Defendant was indicted with three counts of larceny and three

counts of possession of stolen goods. The indictment alleged Defendant stole and

possessed US currency, the property of WEST Motor Freight, in the amounts of



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$7,000.00, $20,000.00, and $89,861.80 respectively. The case proceeded to trial on 27

October 2014. At the close of State’s evidence, the State moved to dismiss the three

counts of possession of stolen property, which was granted.

      Defendant then made a motion to dismiss the remaining three counts of

larceny based on insufficiency of the evidence. After considering the arguments of

counsel, the trial court denied the motion. On 31 July 2014, the jury returned a

verdict and found Defendant to be guilty of three counts of larceny.

      Defendant gave notice of appeal in open court.

                                       II. Issue

      In Defendant’s sole argument, he contends the trial court erred in denying his

motion to dismiss for insufficiency of the evidence.

                         III. Defendant’s Motion to Dismiss

      Defendant asserts his motion to dismiss should have been granted, because the

State failed to present substantial evidence of each essential element of the crimes

alleged. We agree.

                                A. Standard of Review

      This Court reviews the denial of a motion to dismiss in a criminal trial de novo.

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). Upon

a defendant’s motion to dismiss due to insufficient evidence, “the question for the

Court is whether there is substantial evidence (1) of each essential element of the



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offense charged, or of a lesser offense included therein, and (2) of defendant’s being

the perpetrator of such offense. If so, the motion is properly denied.” State v. Fritsch,

351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citation omitted).

      “Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” State v. Nicholson, 355 N.C. 1, 51, 558

S.E.2d 109, 143 (2002) (citations omitted).         All evidence, both competent and

incompetent, and any reasonable inferences drawn therefrom, must be considered in

the light most favorable to the State. State v. Rose, 339 N.C. 172, 192-93, 451 S.E.2d

211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

      Additionally, circumstantial evidence may be sufficient for the State to

withstand a motion to dismiss when “a reasonable inference of defendant’s guilt may

be drawn from the circumstances.” Fritsch, 351 N.C. at 379, 526 S.E.2d at 455

(citations and quotations omitted). If so, it is the jury’s role and duty to determine

whether the defendant is actually guilty. Id.

                                      B. Analysis

      Defendant argues the State failed to provide substantial evidence of each

essential element of the crime of larceny. He contends that because Hojecki, on behalf

of WEST Motor Freight, deposited the $118,729.49 into his bank account willingly,

the essential element of a trespass is lacking. We agree.




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      “The essential elements of felony larceny are that the defendant: (1) took the

property of another; (2) carried it away; (3) without the owner’s consent; and (4) with

the intent to deprive the owner of his property permanently.” State v. Perry, 305 N.C.

225, 233, 287 S.E.2d 810, 815 (1982), overruled in part on other grounds by State v.

Barnes, 324 N.C. 539, 540, 380 S.E.2d 118, 119 (1989). By statute, larceny of goods

of the value of more than one thousand dollars ($1,000) is a Class H felony. N.C. Gen.

Stat. § 14-72(a) (2013).

                                  1. Actual Trespass

      Our Supreme Court has stated the taking of the property of another “involves

a trespass either actual or constructive.” State v. Bowers, 273 N.C. 652, 655, 161

S.E.2d 11, 14 (1968). “The taker must have had the intent to steal at the time he

unlawfully takes the property from the owner’s possession by an act of trespass.” Id.

“[T]o constitute a larceny, the taking must be such as amounts to a trespass. Every

larceny includes a trespass; and if there be no trespass in taking the goods, there can

be no felony committed in carrying them away.” State v. Webb, 87 N.C. 558, 559 (1882)

(emphasis in original) (citation omitted).

      An actual trespass occurs when a defendant “unlawfully takes the property

from the owner’s possession by an act of trespass.” Bowers, 273 N.C. at 655, 161

S.E.2d at 14. In this case, Defendant did not take the $118,729.49 from WEST Motor

Freight’s possession by an act of actual trespass. The money was removed from



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WEST Motor Freight’s bank account and was deposited by Hojecki (WEST Motor

Freight’s employee) into Defendant’s bank account without any actual action taken

by Defendant.

                              2. Constructive Trespass

      Unlike an actual trespass, a “constructive trespass” occurs “when possession

of the property is fraudulently obtained by some trick or artifice.” Id. In this case,

there was no “trick” or “artifice,” which allowed Defendant to fraudulently obtain

possession of the money deposited into his account. As noted supra, the money was

deposited into Defendant’s bank account by WEST Motor Freight, through Hojecki.

Defendant did not trick WEST Motor Freight to deposit extra money into his account;

rather, the money was deposited by mistake, and the mistake in the correct amount

to be deposited was WEST Motor Freight’s, not Defendant’s.

      The State argues the taking did not occur when Hojecki deposited the

$118,729.49 into Defendant’s account, but rather the taking occurred after Defendant

had been made aware of the erroneous transfer and, subsequent to that knowledge,

took control of those funds, moved, and used them for his own purposes. We disagree.

      The State’s interpretation would require WEST Motor Freight to be in

constructive possession of the $118,729.49 it erroneously deposited into Defendant’s

bank account, such that Defendant constructively trespassed upon that possession by

“taking control” of the money deposited into his own bank account. Our Supreme



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Court has held that “constructive possession of property requires ‘an intent and

capability to maintain control and dominion’ over it.[]” State v. Weaver, 359 N.C. 246,

259, 607 S.E.2d 599, 606-07 (2005) (citations omitted). Presuming WEST Motor

Freight intended to maintain control and dominion over the money it volitionally

deposited into Defendant’s account, WEST Motor Freight retained no ability to

maintain control and dominion. The evidence showed Hojecki attempted, but failed,

to reverse the direct deposit transaction to recover possession and control of the

funds.

         WEST Motor Freight relinquished possession of and control over the money at

the time it was transferred into Defendant’s account.           It did not actually or

constructively continue to possess the money once the transfer into Defendant’s

account was completed. Defendant came into lawful possession of the $118,729.49 in

his account.

         “Generally one who lawfully acquired possession of the goods or money of

another cannot commit larceny by feloniously converting them to his own use, for the

reason that larceny, being a criminal trespass on the right of possession, . . . cannot

be committed by one who, being invested with that right, is consequently incapable

of trespassing on it.” State v. Bailey, 25 N.C. App. 412, 416, 213 S.E.2d 400, 402 (1975)

(citation omitted). The State’s argument is overruled.

                                     State v. Jones



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      We agree with Defendant that this case is analogous to State v. Jones, 177 N.C.

App. 269, 628 S.E.2d 436, disc. review denied, 360 N.C. 580, 636 S.E.2d 190 (2006).

In Jones, the victim, Ora Evans, buried $13,400 in cash in her ailing mother’s

backyard. She was concerned it might be stolen by home healthcare workers. 177

N.C. App. at 270, 628 S.E.2d at 437. The money was buried with a note declaring

Evans and her son to be the owners of the money. Id. Evans’ mother eventually died,

and the house was rented to Karenna Jones (“the defendant”). Id.

      Two years later, Evans remembered she had buried the $13,400.00, went to

the house being rented to the defendant, and attempted to locate the buried money.

Id. She was unable to do so before the defendant ordered Evans off the property. Id.

After Evans left, the defendant “got curious” and dug in the backyard, eventually

finding and spending the buried money. Id. at 270-71, 628 S.E.2d at 438.          The

defendant was charged and convicted of felony larceny. Id. at 271, 628 S.E.2d at 438.

      This Court noted the defendant was in lawful possession of the real property

where the money was buried, and had a valid lease entitling her to “lawful possession

of the real property and consequently, the money [Evans] buried in the real property.”

Id. at 272, 628 S.E.2d at 439. The Court acknowledged that “[a]s noted by [the

defendant], upon the facts presented in [that] case, ‘the crime [she] may have

committed’. . . would [have been] conversion by a lessee.” Id. The Court reversed the




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defendant’s larceny conviction, holding “the defendant here did not trespass and thus

did not commit felonious larceny.” Id.

        The facts presented in Jones are common and related to the facts presented

here.    Like Jones, Defendant had lawful possession of his bank account and

consequently, the money located in that bank account. While Defendant clearly knew

the large sum had been erroneously deposited into his account by WEST Motor

Freight, Defendant did not actually or constructively trespass on the property of

another in making withdrawals and purchasing cashier’s checks with the money

deposited in his own bank account. Consequently, Defendant “did not trespass and

thus did not commit felonious larceny.” Id. As these three larceny convictions are the

only issues before us, we express no opinion on what, if any, other crimes Defendant

may have committed.

                                    IV. Conclusion

        The State failed to present any substantial evidence tending to show

Defendant actually or constructively trespassed to take possession of the property of

another, an essential element of the charge of larceny. The trial court erred in failing

to grant Defendant’s motion to dismiss the crimes of which Defendant was charged

at the close of the State’s evidence. Defendant’s three larceny convictions are vacated.

        VACATED

        Judges STROUD and DIETZ concur.



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