Episode 2: Evans and Wilkins

[00:00:05.870] [SPEAKER_01] The North Carolina Court of Appeals has held that an indictment for obstruction of justice was facially invalid. That's surprising given that the North Carolina Supreme Court has recently raised the bar for indictment defects. In a case called Singleton, the North Carolina Supreme Court held that an indictment is not facially invalid unless it utterly fails to allege a cognizable offense. The Court of Appeals has now found such a defect in State v. Wilkins. That case is on the menu for today. I'm Joseph Hyde with the University of North Carolina School of Government. And I'm Jonathan Holbrook with the North Carolina Conference of District Attorneys. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina. John, let's jump right in. We've got three cases on the menu today. The first one I want to talk about is State v. Evans. This was a case decided by the Court of Appeals in September 17th of 2024. Defendant In Evans was the manager of a Dollar General in Benson, North Carolina. In May of 2021, the defendant was supposed to deliver cash deposits to the First Citizens Bank. Defendant took $11,000 from the store, logged the deposits as if she had taken them to the bank, and then the next day she quit her job. A cash audit from the Dollar General later revealed that those deposits had not been made. In September of 2021, defendant was served with arrest warrants. I think it was three counts of larceny by an employee. Six months later, in March and April of 2022, the defendant made three cash deposits totaling $11,000 into Dollar General's bank account using the same cash bags that she had used to remove the money from the store, although she admitted at trial that this was not actually the same cash that she had taken from the Dollar General. So the defendant gets put on trial for these three counts of larceny by an employee. At trial, the defendant admitted that she left the store with the deposit bags and logged the deposit. She said that she had left the bags of cash in her car and just assumed that her daughter had made the deposits at the bank. The defendant said that after she was apprehended, she worked and scrounged and gathered and borrowed money and actually bought this money back and deposited that money into Dollar General's bank account. The defendant was convicted by a jury of three counts of larceny by an employee, and the argument on appeal was that the state's evidence was insufficient to show that she actually had the intent permanently to deprive the victim of that property. The Court of Appeals goes through the standard analysis of the sufficiency of the evidence challenge, saying the evidence viewed in the light most favorable to the state. Intent is a matter that's generally proven by circumstantial evidence. You're not gonna have direct evidence of intent. And they found that in this case, the state's evidence of the defendant's intent permanently to deprive the victim of that property was sufficient, notwithstanding the fact that she, what do you wanna call it, reimbursed the money to the victim after she had been
[00:03:03.808] [SPEAKER_00] apprehended for this crime. You know, Joe, I think that's a good point. Reimbursed is probably an even better term to use than something like returned. Well, because
[00:03:12.455] [SPEAKER_01] like I said, she acknowledged at trial this was not the same cash that she had taken from the store.
[00:03:17.164] [SPEAKER_00] Yeah, I think they noted that the bills were different, you know, multiple hundreds and so forth. But that seems to be what the central focus of the case is, is sure, we're hardly ever going to have direct evidence of somebody's intent. So we look at that circumstantial evidence of somebody's intent. And Joe, in this case, it seems to be there's a there's an embarrassment of riches of circumstantial factors the state could point to to show that kind of circumstantial evidence of her intent to permanently deprive.
[00:03:43.507] [SPEAKER_01] Right. She had taken the money, she quit her job the next day, and then when the officers went to serve her with these warrants, apparently she had vacated the premises where she was living before. They had a hard time tracking her down. As the Court of Appeals pointed out, it wasn't until after she was apprehended and charged with this offense that she found time to reimburse the victim
[00:04:02.974] [SPEAKER_00] with this property. I mean, I think the way that I sort of look at this is essentially saying that you regret the crime or that you realize you haven't gotten away with it. You know, we're not going to rewrite history, right? We're not going to sort of go back in time and say that we'll impute that intent back to the time when the crime was actually committed, given immediately quitting your job, disappearing. Those seem to be sufficient factors for the But there is kind of a little bit of
[00:04:26.875] [SPEAKER_01] pushback there, John. The defendant relied on a case called Sparrow. That was a case where the defendant had taken a motor vehicle and taken it out for a joyride. And then before ever having been stopped for that crime, had returned the car to the victim. And in that case, the Court of Appeals found that there was insufficient evidence of this intent permanently to deprive the owner, where the property was brought back, returned to the person that owned it before any involvement of law enforcement.
[00:04:54.095] [SPEAKER_00] That is an interesting counterpoint, I guess you might say, to all of this. In that case, it seems pretty clear. Had they kept the car for six months and only returned it after they knew warrants had been taken out, it would be a little bit more similar. But here, what is it, 30 minutes or something that they've got the car and then they bring it back? And so the court there is saying, clearly there, it's not intent to permanently deprive. So that sort of raises a question for me of, I don't know, so then where's the line? How much is enough?
[00:05:23.930] [SPEAKER_01] I think there's not going to be much of an argument here that the state's evidence was woefully inadequate, given the fact that the defendant didn't reimburse this property until after the involvement of law enforcement, right? I think once you've got at least the initiation of charges, if the defendant then turns around and says, oh, let me give you this property back, I think the defendant's going to have a hard time of saying that that desire to return the property was based on anything other than a concern that now they've been caught and charged with this crime.
[00:05:51.064] [SPEAKER_00] But Sparrow is a good one, I think, to keep in mind, you know, because in most cases, your facts are probably going to fall somewhere a little more in the middle. So, yes, the court will. We will leave it to the jury. Right. We will view this in the light most favorable to the state. We will let you prove it with circumstantial evidence. But but there needs to be something. If there's just not anything, then you may be in a little bit more of a Sparrow situation than you are in Evan's situation. And Joe, there was a second issue in the case. There's a
[00:06:14.187] [SPEAKER_01] second issue. I'm not going to deal extensively with it. The defendant made an argument on appeal that the trial court had incorrectly determined her prior record level. This went back to a charge that had been charged originally as a felony, but she played it down to a misdemeanor at the time of the prior conviction judgment was entered. But then the legislature in the intervening time had changed the classification of the offense from a misdemeanor to a felony. And by statute, the prior conviction is to be counted as of the offense level at the time of the present offense. So by the time this defendant was convicted of larceny by an employee, that prior conviction had become a felony and it counted as a felony for purposes of
[00:06:57.004] [SPEAKER_00] a prior record level. And it seems like the basis for that is that the court is saying when the classification is changed, if you then go commit a new crime, you are constructively on notice that you will be sentenced at this higher level. Right. Do you think many defendants are checking whether any of their prior conviction classifications have changed before deciding to commit? Probably not actually
[00:07:18.314] [SPEAKER_01] going back to check on that, no. But the argument the defendant raised here is not crazy. She said this was a violation of the plea agreement that she agreed to when that prior conviction was entered. Because like I said, it had originally been charged as a felony, it was pled down to a misdemeanor, and now the legislature has gone back and switched it back to a felony. The Court of Appeals rejected that argument saying, no, you got the benefit of the bargain that you made at the time, and the fact that the classification of that offense has changed doesn't affect the prior record level determination now, given, as you said, that you're on constructive notice.
[00:07:49.511] [SPEAKER_00] And that could be something that's an interesting point that may come up in future cases, the idea of what exactly is the bargain? You know, it's not that this is what I'm convicted of and that will be the only thing I face for all time. I mean, the bargain was what you're going to be sentenced for today. I can imagine that coming up, you know, in some other MARs or other situations down the road. But that's a good one to look at, State v. Evans. And then the second case we wanted to talk about, and Joe, I think we'll kind of split this one up because there's two really different halves to this. But the other case we wanted to talk about was State v. Wilkins. This is another case out of Wake County. And I'm going to talk a little bit about this false pretenses issue. And then, Joe, I'll let you talk about some of the indictment issues for that obstruction of justice that you mentioned in the introduction. But if you're not familiar with the case, the quick summary of the facts is this deals with the defendant Wilkins, who was appointed to be the sheriff in Granville County in 2009. He had worked as a law enforcement officer for a number of years before that in Granville County as a deputy sheriff an auxiliary officer for some intervening years then the chief deputy for Granville from 2001 up until that appointment in 2009 and during all of those preceding years leading up to 2009 he had of course received a certification that he's required to hold to keep that position for his training and as sheriff once he became the appointed to be the actual sheriff of the county is no longer required to maintain that certification there's a statute on that general statute 17 e-11 but nevertheless somewhere between the years of 2013 and 2019 the defendant was reporting to the division that he had actually satisfied and completed those training requirements, even though he wasn't required to do that anymore as the actual sheriff. So his signature is on these training class rosters, and that appeared to be falsified. He had not actually participated in those. And so among other things, like the obstruction of justice that Joe will talk about, he was charged for that with six counts of obtaining property by false pretenses, along with the obstruction of justice. And what does the property he's alleged to have... Well, so that's a good question, but the property would essentially be the certification, right? That by submitting, by making this false pretense of handing in this paperwork that says, yes, I've done this, yes, I've completed this updated training, that he's then able to keep that certification. And that's an issue that was discussed at some length at trial. You know, they asked him, well, if you don't need this... Why are you getting it? You know, what are you getting out of that? And there's excerpts from his testimony in the briefs from the parties. And he essentially said it was for personal reasons that he felt like he had done the work, that he knew the material, that he had that he had that he had had that training and he wanted to get some credit for it just kind of for personal reasons, even though he's not necessarily required to do it, even though he didn't actually do it. even though he didn't actually do the work to go into those classes. And so those falsified signatures are on there essentially. But the issue, and again, there was discussion of that at the trial level, the idea of is a certification, I mean, is that a thing of value? And I think we can... make a pretty good argument for that. A certification that allows you to go out and work as a law enforcement officer, of course, that's a thing of value. I mean, the same as a law license or a medical license. It's something that a person would need to have. Maybe he didn't need to have that right now today as the elected sheriff because that statute says he doesn't have to. But, you know, I mean, Joe, I'm sitting here holding a pen in my hand right now. I don't need the pen that you've got over on your desk. But it doesn't mean that that pen isn't a thing of value i mean it's still it costs a dollar at the store so i think we could make a good argument that the certification for a law enforcement officer of course is a thing of value but the issue here for the court of appeals is about obtaining the thing of value maybe he did make that false pretense maybe it was calculated and intended to deceive to get this thing of value but did he obtain the thing of value and the court of appeals here says No, he wasn't obtaining anything based on that false pretense. He was retaining the certification that he already had and that they view that as being two very different things. And they talk about how they addressed a similar question in another case we had a couple of years ago called State v. Mathis. And that was one where a bail bondsman sort of had a scheme with a clerk to make some entries in the record. And that allowed the bail bondsman to continue to hold a bail bonding license. And that's the way that it was indicted in that case was that what you obtained, the thing of value that you obtained was keeping your bail bondsman license. And it was an interesting, particularly interesting decision in Mathis because I think for the first time at oral arguments on appeal, the state tried to, let's say, massage the nature of the argument a little bit to say, all right, it's not just that he's retaining his bail bonding license, he's obtaining a renewal of the bail bondsman license. In Mathis, the Court of Appeals seemed to say, you know, that that's not how it was indicted. That's not how it was argued at trial. That's not even in the briefs. This is something sort of, as I understand it, coming up essentially at oral arguments. And they said, we're really not going to engage with that. But I remember talking about Mathis at one of these earlier case updates, and we felt like that was essentially the roadmap of how you should have charged it to begin with. You know, yes, you did get something new. you obtained the renewal of the license. That's like if I go to the
[00:13:18.932] [SPEAKER_01] DMV and I have to renew my driver's license, right? Does it matter whether they give me a new license or just put a new date on the old license?
[00:13:27.600] [SPEAKER_00] It seems like the state in this case, conscious of what I sort of took as almost, I don't know, a hint or advice from Mathis of don't just say he retained what he had, say he obtained a renewal. It felt like that's how the state was approaching it in this case, because, you know, they point out here, the indictment alleged that defendant obtained continued law enforcement certification. You know, that's how I'm going to phrase it. That's the new thing that he is getting here. But the court of appeals in this case, looks back at Mathis and says, no, they don't view that as being sufficient. They said that while this phrasing is slightly different from the indictment in Mathis, it does not change the facts of the case. Under Mathis, this is not obtaining property within the meaning of the statute and the defendant could not be convicted of obtaining property by false pretenses. what I thought was essentially a roadmap or a hint from Mathis of what we need to argue, they're rejecting that. You know, they're saying, and if you go back and look at Mathis, they literally pull quotes from Black's Law Dictionary and Webster's to sort of make the common sense point of obtaining something means to get something new and retaining something means to keep what you have. And they feel like just as a basic matter of of the plain language or you know in mathis they also mentioned rule of lenity that if it's kind of debatable then we're going to go in the defendant's favor on that but that essentially the statute is not obtaining or retaining property by false pretenses it is obtaining and so if all you're showing is that he made a false pretense that allowed him to keep something he already has they're just saying per mathis per the plain language that's not going to be good enough and so they rejected uh ultimately just uh dismissed all six of those counts of obtaining property by false pretenses. I can't disagree with the very basic argument that obtaining and retaining are two different words. I mean, I understand where they're coming from, that just keeping something you've already got is not obtaining property by false pretenses. But I think like the example that you gave with the DMV, or we could make any number of examples, it... It does feel like you're getting something right when you get this extra year of something. And I guess that's where I struggle or where I think there might be some room for us to try to distinguish this or argue this in future cases on appeal. It does seem like in this analysis that maybe we're not fully properly grappling with that time issue. Right. You know, I don't think about your bar license. I mean, you know, if you've paid your dues and you've done your CLEs, then then, yes, you've got that license to say I can practice law for 2024. Sure. Sure. You know, but I mean, if I were making a false pretense that I don't know, to keep the bar from finding out about some bad thing I've done so that they won't take my license away. You know what I mean? That that's. Maybe there's an argument to be made that it's not a false pretenses charge if I'm just retaining my 2024 ability to practice. But gosh, on a gut level, it does feel like I'm getting something new when I then get the ability to go practice law in 2025. I don't disagree with the obtaining, retaining, but it does seem like that time issue. Because the
[00:16:46.325] [SPEAKER_01] certification is something metaphysical, right? It's not like they don't have to send you a new piece of paper in order for it to retain its validity into the future. You have to do this additional thing. Otherwise, it becomes something that may be not as valuable for you to
[00:16:58.087] [SPEAKER_00] have. And clearly the court would disagree with me here. They would say, you're making up this timing issue, you know, to your point. Right. It's not so much the piece of paper. It's not so much the sticker on your license plate from the DMV. It is just you're certified or you're not. And by doing this, he was able to retain that certification. So. This is a somewhat unusual circumstance, right? An elected sheriff not required to be certified, retaining it for other reasons, you know, kind of an unusual circumstance. But yes, I mean, I could imagine this being a factor in any number of cases going forward. Well,
[00:17:30.863] [SPEAKER_01] it's going to have to affect how we think about charging false pretenses in the future, right? If the item, if the property is something that could be conceptualized as something that the defendant already had, this case is going to make it harder to go forward in alleging that he obtained it by false pretenses, even if, as you say, it was a value going forward that he might not have been able to retain the value but for this false pretense.
[00:17:54.955] [SPEAKER_00] And as we always try to do, what's our takeaway for the prosecutors? What's the point? The point would be to think about this. If the facts you're dealing with are the, I don't know, the person squatting in the home, I mean, They're not just retaining possession of the property, right? We would want to focus on their attempt to obtain an actual title from the register of deeds. Something they didn't have before. Something they didn't have before, or else we may find ourselves kind of running into this Mathis-Wilkins problem that they're going to say, that's not obtaining new, that's just retaining what you had, and that's not going to work. So that was one half of the case, these false pretenses. But again, he was convicted of a total of 12 counts, the other ones being obstruction of justice. And Joe, as you mentioned, there's sort of an interesting interplay with that Singleton case on those.
[00:18:38.348] [SPEAKER_01] Well, yeah, right. The obstruction of justice charges, the defendant on appeal had also challenged the sufficiency of the evidence supporting those convictions. But ultimately, the Court of Appeals did not reach the sufficiency of the evidence, but went back to the sufficiency of the indictment based on a case that it had decided earlier this year called State v. Coffey. And Coffey had decided that an obstructive act is one that's done for the purpose of hindering or impeding a judicial or official proceeding or investigation. And what Coffey had said was where the indictment failed to allege that whatever act it was, was one done for that prohibited purpose, that the indictment itself was invalid, not even getting yet to the question of the sufficiency of the state's evidence, but where the prosecutor had failed to include an allegation that the defendant had this mens rea, had done the act for the purpose of hindering or impeding a judicial or official proceeding or investigation, that that was all that the Court of Appeals needed to say, your indictment's no good, trial court lacked jurisdiction. The funny thing about Coffey was that Coffey was decided actually before the North Carolina Supreme Court issued its opinion in Singleton. And what Singleton did was say, there's a very big difference between those indictments that completely absolutely fail to allege any offense at all, and those indictments that merely contain what they call a facial defect, right? That it failed to allege one of the elements, or didn't include everything, didn't comply with all these technical requirements that used to so bedevil the prosecutor at the stage either at trial or on appeal. Because again, what makes an indictment claim so powerful, it used to be that at any stage of the proceeding, even after conviction, even after an appeal, if the defendant could come forward and say this indictment contains a facial defect, then the whole thing was scrapped. The trial court's jurisdiction was gone and the state had to start over again at square one. So before Singleton came down, the Court of Appeals had decided Coffey that had found an indictment for obstruction of justice invalid for failure to include this language. Singleton comes down, completely changes the landscape. And then Wilkins, this case comes down and they find what they say is allegations of obstruction of justice that are indistinguishable from Coffey and say, well, we're bound by Coffey. We understand that Singleton has come down. The Supreme Court denied discretionary review in Coffey, so we've got to go with the same result there. And the Court of Appeals in this case found the obstruction of justice indictment was facially invalid and so that the trial court lacked jurisdiction. The reason that's surprising is that Singleton had carved out a very narrow window for indictments that are so invalid as to deprive the trial court of jurisdiction. It said that it would be as if you had charged someone with wearing a pink shirt on Wednesday. conduct that did not actually constitute a criminal offense. And the Court of Appeals in Wilkins, just sort of in a footnote, blows by this and says, well, we find this indictment to be completely facially invalid, just like the one in Coffey. I will say, since Singleton came down, there's been a handful of cases, I think five or six at my last count, and this is the first case to have found one of those pink shirt indictments, an indictment that is so facially invalid as to deprive the trial court of jurisdiction. It's a little surprising only because that particular defect that Coffey identified was not one that, you know, this indictment fails to allege an offense that's cognizable in North Carolina. I mean, the caption was this was an obstruction of justice, and obstruction of justice is still a crime of common law. It just failed to allege that particular element of the prohibited purpose. And yet here, the Court of Appeals has said that an indictment for obstruction of justice, which it doesn't seem to call into question, is still a crime, that fails to allege that prohibited purpose is one of those pink shirt indictments.
[00:22:15.771] [SPEAKER_00] Joe, I've got that footnote in front of me where they reference State v. Singleton, and they're talking about why they say it is still defective, even after State v. Singleton. And the court says the indictment in this case does not allege conduct that could be understood to constitute common law obstruction of justice, and therefore... fails entirely to allege a criminal act creating a jurisdictional defect. So if the way we're gonna read Singleton is to say that leaving out one out of five, six, whatever elements, if you inadvertently leave out one element of that, that is a jurisdictional defect and we're gonna throw the case out, then what is the impact of Singleton?
[00:22:57.930] [SPEAKER_01] Right. I find it a little hard to square this result with the kind of defect that Singleton said would deprive the trial court of jurisdiction. Because what Singleton said specifically was this is not going to happen very often. This is going to be a situation that's so outlandish such as when the state tries to prosecute a defendant for something that is clearly not a criminal offense. I have a hard time seeing how the Court of Appeals has characterized this indictment, which otherwise did allege an obstruction of justice. The only problem was that it omitted that intent element and that they've said that that's facially defective under Singleton. If this is the kind of defect that makes the trial court lack jurisdiction, we're back into a pre-Singleton era where the indictment has to allege all the elements or the whole thing is
[00:23:46.212] [SPEAKER_00] null and void from the get-go. So let's assume for a minute that this had been indicted in a way that the Court of Appeals felt was sufficient, right? Saying that it's actually obstructing an investigation. Would we also have a sufficiency of the evidence problem?
[00:24:01.425] [SPEAKER_01] Well, we don't know because we didn't get to that. The Court of Appeals doesn't proceed to the question of whether the state's evidence in this case is sufficient for obstruction of justice because having answered the jurisdiction question, they don't even get into whatever evidence the state had put on at trial. The Court of Appeals in Wilkins pointed out that the trial court did not have the benefit of its holding in coffee. I mean, these are coming sort of quickly on the heels of one another. So there certainly would be a question of of whether the state's evidence was sufficient to meet that element that Coffey identified, only in so far as that the ruling in Coffey was a little bit surprising. This was an element, and I put that in quotation marks, upon which there had been some, what do you want to call it, inconsistency, discrepancy in the case law before that point. But ultimately, the Court of Appeals doesn't reach that question because it cut it off at the jurisdictional stage.
[00:24:47.644] [SPEAKER_00] And I know you know the reason I'm asking because we've talked about this case before. But yeah, we've had other cases like that one we mentioned, state versus right, where they were talking about how somebody filing phony or fraudulent campaign finance reports, for example, and that the whole point of doing that was to keep them from looking into something you wouldn't want them to look into. Right. even if they haven't started it, that kind of thing to prevent or derail or avoid an investigation, that that could also be obstruction of justice. And so some question now in my mind of whether that would still work. Right.
[00:25:22.726] [SPEAKER_01] Yeah, I have the same question.
[00:25:24.567] [SPEAKER_00] Well, hopefully we'll get some additional answers as this one gets further discussed by the Court of Appeals. But I think we can say that's what we know so far, for better or for worse.
[00:25:34.795] [SPEAKER_01] Well, that's all folks for this episode. Today we discussed State v. Evans about reimbursement for purposes of the defendant's intent permanently to deprive the owner of property in State v. Wilkins, dealing with false pretenses and a facially invalid indictment for obstruction of justice. Turning States is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We are coming to you from the recording studio at the School of Government in Chapel Hill. Special thanks to our producer, Paul Bonner, and to Gustav Holtz for our music. If you liked what you heard today, if you have questions, comments, concerns, you have something you want us to talk about, please contact us. My name is Joseph Hyde, and I can be reached at jhyde at sog.unc.edu. That's j-h-y-d-e at
[00:26:21.670] [SPEAKER_00] sog.unc.edu. And I'm Jonathan Holbrook. I can be reached at jonathan.p.holbrook at nccourts.org. That's j-o-n-a-t-h-a-n dot p as in Philip dot h-o-l-b-r-o-o-k at n-c-c-o-u-r-t-s dot org.
[00:26:45.020] [SPEAKER_01] Unfortunately, our complaints department is still down for site maintenance. Good night, John, and good luck. Good night, Joe,
[00:26:52.009] [SPEAKER_00] and thank you all for listening. Hope it helps.