Opinion
No. COA12–1434.
2013-08-6
STATE of North Carolina v. Marvin Lykeith ADAMS.
Attorney General Roy Cooper, by Assistant Attorney General Alesia Balshakova, for the State. McCotter Ashton, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, for defendant-appellant.
Appeal by defendant from judgment entered 12 July 2012 by Judge Alma L. Hinton in Halifax County Superior Court. Heard in the Court of Appeals 22 May 2013. Attorney General Roy Cooper, by Assistant Attorney General Alesia Balshakova, for the State. McCotter Ashton, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, for defendant-appellant.
HUNTER, ROBERT C., Judge.
Marvin Lykeith Adams (“defendant”) appeals from the judgment entered after a jury found him guilty of attempting to obtain property by false pretense, larceny of a chose in action, and misdemeanor possession of stolen property. Defendant contends the trial court erred by admitting impermissible character evidence, by denying his motion to dismiss for insufficiency of evidence, and by instructing the jury using an incorrect definition of “a chose in action.” After careful review, we find no prejudicial error with respect to defendant's conviction for larceny of a chose in action. We vacate, in part, the judgment entered upon defendant's conviction for misdemeanor possession of stolen property, and remand for resentencing on the conviction for attempting to obtain property by false pretense.
Background
The State's evidence tended to establish the following facts: On the morning of 3 January 2011 at approximately 9:45 a.m., Mrs. Joanne Robinson (“Mrs.Robinson”) pinned an envelope, which contained a check payable to American Labels in the amount of $10.42, to the mailbox located on her porch in Roanoke Rapids, North Carolina. Later that day, Mr. James Marshall (“Mr.Marshall”) was approached by defendant, who identified himself as Marcus High, and offered Mr. Marshall $10.00 for a ride to First Citizens Bank so defendant could cash a check. Mr. Marshall drove defendant through the drive-through of the bank, and defendant passed him a check and a driver's license. Mr. Marshall put the check and driver's license in the Automater for delivery to the teller. The teller, Ms. Christy Hudson (“Ms.Hudson”), testified that she recognized the name of the payor of the check, Mrs. Joanne Robinson, and that upon comparison of the handwriting with Mrs. Robinson's signature card, the check appeared to have been altered. Ms. Hudson wrote down the name of the payee, “Marvin Adams”; the check was written in the amount of $600.00. After consulting with her supervisor and failing to reach Mrs. Robinson via telephone, Ms. Hudson returned the check and driver's license to Mr. Marshall who then left the drive-through. Mr. Marshall testified that he “was feeling funny” at this point and refused to take defendant to a “check-cashing place.” He instead dropped defendant off at a fast food restaurant and left.
Deputy Joshua Clark (“Deputy Clark”) was dispatched to meet with Mrs. Robinson after she was notified of the attempt to cash her check. He then went to First Citizens Bank, interviewed Ms. Hudson, and obtained a photo of the truck in the drive-through from the bank. After reviewing the photo from the bank, Deputy Clark interviewed Mr. Marshall. Having obtained the name “Marcus High” from Mr. Marshall, Deputy Clark went in search of Mr. High. Deputy Clark came into contact with defendant in defendant's front yard, and, after further investigation, discovered that defendant's cousin, Michael High, was incarcerated at the time. Deputy Clark returned to the bank to review the bank's surveillance video and was able to identify the passenger in the truck as defendant, with whom he had just spoken. Defendant was at the sheriff's office seeking the issuance of a warrant for an unrelated matter when Deputy Clark asked him to take part in a noncustodial interview.
After defendant admitted to being the passenger in the truck, defendant was arrested and indicted for attempting to obtain property by false pretense, larceny of a chose in action, and possession of stolen property. Defendant's charges came on for a jury trial during the 11 July 2012 Criminal Session of Halifax County Superior Court. The jury found defendant guilty of all charges, and he was sentenced to a prison term of 11 to 14 months for larceny of a chose in action and a consecutive term of 8 to 10 months for attempting to obtain property by false pretense and possession of stolen property. Defendant gave timely notice of appeal.
Discussion
I. Deputy Clark's Testimony
Defendant first contends that the trial court erred in admitting the testimony of Deputy Clark, which, he contends, allowed the jury to infer that defendant was a criminal with prior convictions in violation of Rules 403, 404(b), and 609 of the North Carolina Rules of Evidence. We disagree.
On direct examination, Deputy Clark testified as follows regarding his identification of defendant in the bank's surveillance video:
[Deputy Clark]: This is the video from Lane 2. That is the suspect vehicle coming into view there. The angle just before this, if you—are able [sic] to back it up?
(State's Exhibit Number 7 was rewound.)
[Deputy Clark]: It was at that angle there that I was able to
[Defendant's Counsel]: Objection.
THE COURT: Overruled.
[Defendant's Counsel]: If I may?
THE COURT: Yes.
(There was a bench conference, which was not recorded.)
[Prosecutor]: Continue, Deputy Clark.
[Deputy Clark]: From this view here, I was able to recognize the passenger as Marvin Adams.
Because the objection made by defendant to this testimony was a general objection which stated no specific grounds for the objection, and because the grounds for the objection were not apparent from the context, it was ineffective unless the evidence was not admissible for any purpose. See State v. McKoy, 317 N.C. 519, 524, 347 S.E.2d 374, 377 (1986) (“[U]nless, on the face of the evidence, there is no purpose for which the evidence could have been admissible, a general objection is ineffective. On appeal, [the] defendant must demonstrate that the evidence would not be admissible for any purpose.” (citation omitted)). Defendant has not explained why the trial court should have sustained his objection to this particular portion of Deputy Clark's testimony, and none is apparent to us. “It is not the duty of this Court to supplement an appellant's brief with legal authority or arguments not contained therein.” Goodson v. P.H. Glatfelter Co., 171 N.C.App. 596, 606, 615 S.E.2d 350, 358 (2005); N.C. R.App. P. 28(b)(6) (Ann.Supp.2013). As a result, the trial court did not err by overruling defendant's objection to this portion of Deputy Clark's testimony.
Deputy Clark then testified as to his familiarity with defendant:
[Prosecutor]: Had you ever seen him before?
[Deputy Clark]: Yes. I am familiar with Mr. Adams.
[Prosecutor]: So when you saw this video, did you just immediately know who it was?
[Deputy Clark]: No. I knew the original name given on the check and the identification card passed was Marvin Adams. And after seeing the video and seeing the passenger— I personally know Marvin Adams through dealing with him job-related, and I was able to recognize him myself. It is a much clearer picture here than on the photographs that the bank printed out in black and white. (Emphasis added.)
Although defendant contends that his earlier objection was sufficient to preserve his challenge to the admission of this evidence, we do not believe that his earlier objection can be understood as an objection to this portion of Deputy Clark's testimony. As defendant failed to object to this testimony at trial, our review is limited to plain error. N.C.R.App. P. 10(a)(4). However, this Court will not conduct plain error review if a defendant fails to specifically and distinctly argue in his brief that the alleged error is plain error. State v. Kelly, ––– N.C.App. ––––, ––––, 727 S.E.2d 912, 915 (2012). Defendant did not request plain error review but instead asks this Court to review the alleged error under the abuse of discretion standard which he deems to be appropriate for the admissibility of evidence under North Carolina Rules of Evidence 403 and 404. As defendant has failed to preserve this alleged error for review, and failed to allege plain error, his argument as to the admissibility of Deputy Clark's familiarity testimony is overruled.
Deputy Clark also testified to the length of time that he had known defendant:
[Prosecutor]: Deputy Clark, after you made the identification of Mr. Adams in that video, did anything come about after that that caused you to question the identification that you had made of Mr. Adams?
[Defendant's Counsel]: Objection.
THE COURT: Overruled.
[Deputy Clark]: No. I was positive in my identification of Mr. Adams.
[Prosecutor]: And approximately how long had you known or dealt with Mr. Adams before making an identification in the video?
[Defendant's Counsel]: Objection.
THE COURT: Overruled.
[Deputy Clark]: I had known him for a couple of years.
Defendant made timely objections to this testimony, thereby preserving the alleged errors for review. However, there is nothing in this testimony that would have allowed the jury to make an inference that defendant had been previously convicted of criminal offenses. Nor was this testimony evidence of other crimes, wrongs, or acts that impugned defendant's character, or unfairly prejudiced him. Therefore, Deputy Clark's testimony does not implicate North Carolina Rules of Evidence 403, 404(b), or 609, and defendant's argument is overruled.
Alternatively, if the admission of Deputy Clark's testimony was error, in light of other testimony properly admitted, defendant cannot demonstrate that there is a reasonable possibility that the jury would have reached a different verdict had the trial court not admitted the testimony by Deputy Clark that he was certain of his identification and that he had known defendant for two years. N.C. Gen.Stat. § 15A–1443(a). The testimony admitted without objection included Deputy Clark's testimony that he was familiar with defendant through his work as a law enforcement officer. In addition, the uncontested evidence in the record on appeal includes Mr. Marshall's identification of defendant as the individual he drove through the bank's drive-through and who handed him the check to deliver to the bank as well as the testimony by Deputy Clark that Ms. Hudson stated that defendant's name was written on the payee line of the check. This was substantial evidence of each essential element of the crime charged and that defendant was the perpetrator of the crime, eliminating any reasonable possibility that the jury would have reached a different verdict had Deputy Clark's testimony that he was certain in his identification of defendant and that he had known defendant for two years not been admitted. Therefore, defendant's argument is overruled.
II. Denial of Defendant's Motion to Dismiss
Defendant argues that the trial court erred by denying defendant's motion to dismiss the charge of attempting to obtain property by false pretense because, defendant contends, there was insufficient evidence to prove that defendant made any false representations. We disagree.
We review the trial court's denial of a motion to dismiss de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). In doing so, we must determine “ ‘whether there is substantial evidence (1) of each essential element of the offense charged ... and (2) of defendant's being the perpetrator of such offense .’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). When considering a defendant's motion to dismiss, “the trial court must consider all evidence admitted, whether competent or incompetent, 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 (1995). “Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.” State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). “The evidence need only give rise to a reasonable inference of guilt in order for it to be properly submitted to the jury for a determination of defendant's guilt beyond a reasonable doubt.” Id.
“Attempting to obtain and obtaining property by false pretenses are both covered by N.C. Gen.Stat. § 14–100 and contain the same elements.” State v. Conley, –––– N.C.App. ––––, ––––, 724 S.E .2d 163, 170 (2012). The elements of attempting to obtain property by false pretense are “(1) a false representation of a subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which one person obtains or attempts to obtain value from another.” Id. (citation omitted).
Defendant argues that there was insufficient evidence that he made any false representations to the bank teller, Ms. Hudson, which would have allowed him to receive any money. Defendant relies on caselaw holding that “an essential element of the offense prescribed by [N.C. Gen.Stat. § 14–100] is that the accused ‘obtain or attempt to obtain’ something of value by means of any kind of false pretense.” State v. Hadlock, 34 N.C.App. 226, 228, 237 S.E.2d 748, 749 (1977) (emphasis added). Based on the evidence, defendant contends that the State failed to produce substantial evidence of an essential element of the crime because he contends that all of the evidence points to Mr. Marshall having committed the necessary acts.
We find defendant's argument to be without merit. The evidence tended to show that defendant possessed Mrs. Robinson's check, asked Mr. Marshall to take him to the bank so defendant could cash a check, instructed Mr. Marshall to go through the drive-through, and passed the check to Mr. Marshall along with a driver's license, and the check was altered to be payable to defendant for $600.00. This was substantial evidence that defendant made false representations to the bank in an attempt to cash Mrs. Robinson's check, and defendant cannot absolve himself of liability for his actions by the mere fact that he used Mr. Marshall to deliver the check to the teller. See State v. Parker, 354 N.C. 268, 284, 553 S.E.2d 885, 897 (2001) (“ [T]he false pretense need not come through spoken words, but instead may be by act or conduct.”), cert. denied, 535 U.S. 1114, 153 L.Ed.2d 162 (2002). We find that the trial court's denial of defendant's motion to dismiss was not error.
III. Jury Instruction
Defendant argues that the trial court's definition of a chose in action in the jury instruction relating to the charge of larceny of a chose in action was erroneous and affected the outcome of the trial. We disagree.
“[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). “Where jury instructions are given without supporting evidence, a new trial is required.” State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995). However, because defendant failed to object to the jury instructions at trial, we review for plain error. N.C. R.App. P. 10(a)(4). To establish plain error, defendant must show that the trial court's error was so fundamental that, in light of the entire record, the error “ ‘had a probable impact’ “ on the jury's determination that defendant was guilty and “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]’ “ State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). “In deciding whether a defect in the jury instruction constitutes ‘plain error,’ [we] must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.” State v. Goforth, 170 N.C.App. 584, 587, 614 S.E.2d 313, 315 (2005).
Defendant's reliance on State v. Grier, ––– N.C.App. ––––, 735 S.E.2d 434 (2012), is misplaced. There, the defendant was convicted of larceny of a chose in action, among other crimes, for stealing a checkbook from which she wrote a check to herself and cashed it. Id. at –––, 735 S.E.2d at 438. The Court defined a chose in action as, “[a] proprietary right in personam, such as a debt owed by another person ...” and larceny of a chose in action as, “[occuring] when ‘any person shall feloniously steal, take and carry away, or take by robbery, any bank note, check or other order for the payment of money issued by or drawn on any bank ... being the property of any other person....’ “ Id. at –––, 735 S.E.2d at 437 (citations and quotation marks omitted) (emphasis added). We concluded that because the check stolen in Grier was blank, there was no evidence of a debt or obligation that existed prior to the taking of the check. Id. at –––, 735 S.E.2d at 437–38. The stolen check therefore did not meet the definition of a chose in action, requiring reversal of the conviction for larceny of a chose in action. Id.
Here, the trial court's instruction that “[a] check is a chose in action,” did not specify that in order for the “check” to constitute a chose in action it had to be “issued by or drawn on any bank” and evidence a debt owed by another person. However, such omission did not prejudice defendant. The evidence established that the check stolen by defendant was not blank; it reflected a debt owed by Mrs. Robinson to the payee, American Labels, in the amount of $10.42, and meets the definition of a chose in action as set out in Grier. Thus, the trial court's definition of a check as a chose in action did not have a probable impact on the jury's finding of guilt, because the record established that the check stolen by defendant evidenced a debt owed by another person and was drawn on a bank. Accordingly, we find no prejudicial error.
IV. Conviction for Misdemeanor Possession of Stolen Property
Lastly, we must address the trial court's error in entering judgments for both larceny of a chose in action and misdemeanor possession of stolen property. This error has not been raised by defendant, and we therefore invoke Rule 2 of the North Carolina Rules of Appellate Procedure to address the error. N.C. R.App. P. 2.
A trial court errs when it enters judgment based on convictions for both larceny and possession of the same property. State v. Perry, 305 N.C. 225, 236–37, 287 S.E.2d 810, 817 (1982), overruled on other grounds by State v. Mumford, 364 N.C. 394, 402, 699 S.E.2d 911, 916 (2010). Accordingly, that portion of the judgment imposed for the conviction of misdemeanor possession of stolen property must be vacated, and the matter must be remanded to the trial court for resentencing on the conviction of attempting to obtain property by false pretense. See State v. Owens, 160 N.C.App. 494, 498–99, 586 S.E.2d 519, 522–23 (2003) (vacating and remanding the judgment where the trial court sentenced the defendant for both felonious larceny and possession of the same property since entering judgment on both convictions violated the principle enunciated in Perry). The judgment imposed for the conviction of larceny of a chose in action remains unaffected by this error.
Conclusion
Defendant's argument that Deputy Clark's testimony concerning his familiarity with defendant was erroneously admitted has no merit. We conclude that the admission of Deputy Clark's testimony about the length of time he had known defendant was not error. Additionally, substantial evidence exists to support the trial court's denial of defendant's motion to dismiss the charge of attempting to obtain property by false pretense, and the trial court's definition of a chose in action in its instructions to the jury did not prejudice defendant. Accordingly, we find no prejudicial error in the judgment imposed based upon defendant's conviction for larceny of a chose in action. Finally, we vacate that portion of the trial court's judgment imposed based upon defendant's conviction for misdemeanor possession of stolen property and remand this case to the trial court with instructions to resentence defendant on the remaining conviction for attempting to obtain property by false pretense.
NO PREJUDICIAL ERROR, in part, VACATED, in part, and REMANDED for resentencing. Judges STROUD and ERVIN concur.
Recommend report per Rule 30(e).