Opinion
No. COA09-1334
Filed 3 August 2010 This case not for publication
Appeal by Defendant from judgment entered 27 March 2009 by Judge James F. Ammons Jr., in Cumberland County Superior Court. Heard in the Court of Appeals 26 April 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Ted R. Williams and Assistant Attorney General LaShawn S. Piquant, for the State. Glenn Gerding, for Defendant.
Cumberland County Nos. 06 CRS 065710-13, 065715, 06 CRS 067436, 09 CRS 002014-18, 09 CRS 002020-22.
Defendant appeals from 14 convictions of obtaining property by false pretenses. For the following reasons we conclude that there is no error.
Between 2005 and 2006 Defendant, Dalia T. Harrison, engaged in numerous acts of obtaining property by false pretenses from local churches in Cumberland County, North Carolina. Beginning in 2005, Defendant began meeting with members and leaders of several churches in Cumberland County. After her initial introduction, Defendant would generally represent that she possessed the skill and experience necessary to assist the churches with obtaining federal grants. After negotiating her fees, the churches would employ Defendant to provide various professional services including investing money, writing grants, preforming tax audits, and providing other business-related services as requested by the church leader or member. However, despite receiving payment, Defendant failed to perform the tasks for which she was employed. Additionally, the State presented evidence that Defendant would often feign progress on grant writing and other related matters while no work was being completed, or progress made.
Following a police investigation, Defendant was arrested and indicted with 15 counts of obtaining property by false pretenses. Defendant was eventually convicted of 14 of the crimes for which she was indicted and acquitted of the other. Defendant appeals her convictions, arguing that the trial court erred by: (I) ordering a felony sentence for obtaining property by false pretenses, where the general assembly has created a greater offense of obtaining advances under promise to work that is punished only as a misdemeanor; (II) denying her request to instruct the jury that it could not consider her failure to comply with her contractual obligation as evidence of fraudulent intent; and (III) committing plain error in failing to instruct jurors on the offense of obtaining advances under the promise of work.
I.
In her first argument, Defendant essentially contends that because the felony offense of obtaining property by false pretenses is a lesser included offense of misdemeanor obtaining advances upon a promise to work, the receipt of a felony conviction for a lesser offense is cruel and unusual punishment. We disagree.
"[U]nder the Eighth Amendment 'a criminal sentence must be proportionate to the crime for which the defendant has been convicted.'" State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 440 (1983) (quoting Solem v. Helm, 463 U.S. 277, 290, 77 L. Ed. 2d 637, 649 (1983)). However, "[o]nly in exceedingly rare noncapital cases will sentences imposed be so grossly disproportionate as to be considered cruel or unusual." State v. Green, 348 N.C. 588, 609, 502 S.E.2d 819, 832 (1998) (citing Rummel v. Estelle, 445 U.S. 263, 272, 63 L. Ed. 2d 382, 389 (1980)). Defining a lesser included offense, our Supreme Court has explained that "all of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense." State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 379 (1982), overruled on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993).
Here, the offense of obtaining property by false pretenses is not a lesser included offense of obtaining advances under promise to work.
To sustain a conviction for obtaining property by false pretenses, the State must establish: "(1)[A] false representation of a past or 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 the defendant obtains or attempts to obtain anything of value from another person."
State v. Wright, ___ N.C. App. ___, ___, 685 S.E.2d 109, 115 (2009) (quoting State v. Saunders, 126 N.C. App. 524, 528, 485 S.E.2d 853, 855-56 (1997)), appeal dismissed by, 363 N.C. 812, 693 S.E.2d 142 (2010); see also N.C. Gen. Stat. § 14-100 (2009). In contrast, the offense of obtaining advances under promises occurs
[i]f any person, with intent to cheat or defraud another, shall obtain any advances in money, provisions, goods, wares or merchandise of any description from any other person or corporation upon and by color of any promise or agreement that the person making the same will begin any work or labor of any description for such person or corporation from whom the advances are obtained, and the person making the promise or agreement shall willfully fail, without a lawful excuse, to commence or complete such work according to contract, he shall be guilty of a Class 2 misdemeanor.
N.C. Gen. Stat. § 14-104 (2009).
When comparing the two statutes it becomes apparent that all the essential elements of obtaining property by false pretenses are not covered by the offense of obtaining advances under promise to work, as alleged by Defendant. Notably, the crime of obtaining property by false pretenses can punish those that "attempt to obtain value from another," whereas an attempt to obtain value under a false promise to work does not. Moreover, while N.C. Gen. Stat. § 14-100 punishes "a false representation of a past or subsisting fact or a future fulfillment or event," N.C. Gen. Stat. § 14-104 is applicable only to false promises to work. While the two statutory provisions are similar, comparison reveals that obtaining property by false pretenses is not a lesser included offense of obtaining advances under promise to work. Accordingly, Defendant's first argument is without merit.
II.
Defendant next argues that the trial court erroneously denied her request to instruct the jury that it could not consider her failure to comply with contractual obligations as evidence of fraudulent intent. We disagree.
The trial court's decision to deny Defendant's requested jury instruction is reviewed for an abuse of discretion. See State v. Parker, 187 N.C. App. 131, 137, 653 S.E.2d 6, 9 (2007). "[W]hen a defendant requests an instruction which is supported by the evidence and is a correct statement of the law, the trial court must give the instruction, at least in substance." State v. Garner, 340 N.C. 573, 594, 459 S.E.2d 718, 729 (1995) (citations omitted). However, "a trial court's failure to submit a requested instruction to the jury is harmless unless defendant can show he was prejudiced thereby." State v. Muhammad, 186 N.C. App. 355, 361, 651 S.E.2d 569, 574 (2007), appeal dismissed by, 362 N.C. 242, 660 S.E.2d 537 (2008).
Here, Defendant suggested that because many of the indictments involved a failure to perform contractual obligations, the trial court should inform jurors that evidence of ineptness or lack of diligence is insufficient to convict her of obtaining property by false pretenses. At trial, Defendant cited State v. Compton in support of her proposed jury instruction. 90 N.C. App. 101, 367 S.E.2d 353 (1988). There, the defendant entered into a contract to sell land to a buyer in exchange for valuable property and money. Id. at 101-02, 367 S.E.2d at 353-54. On the day that the parties signed the contract, the defendant and his wife went to the buyer's home and selected the items of personal property they wanted in exchange for the land. Id. at 102, 367 S.E.2d at 354. The defendant and his wife returned to their residence in New York with most of the newly acquired property. Id. Approximately one month after the parties entered into the contract, the buyer informed the defendant that he had obtained the funds necessary to complete the purchase of the tract of land. Id. However, before the parties could actually close, the entire tract of land was foreclosed upon. Id.
The defendant in Compton could only return a portion of the buyer's property and was subsequently convicted of obtaining property by false pretenses. Id. at 102-03, 367 S.E.2d at 354. However, at trial, the State failed to present any evidence suggesting that the defendant had no intention of selling the land when entering into the contract. Id. at 104, 367 S.E.2d at 355. On review, our Court overturned the defendant's conviction holding that "[e]vidence of conduct which shows merely that the defendant was inept or that he failed to diligently pursue the accomplishment of his promise, is insufficient to allow an inference that the promise was made without the present intention to comply with it." Id. In the instant case, Defendant's counsel argued that the jury should be provided with an instruction on obtaining property by false pretenses based on the holding in Compton.
Unlike the facts in Compton, in the case sub judice, the State did not merely rely upon evidence of Defendant's ineptness or her failure to diligently pursue the accomplishment of her promises. At trial, the State presented evidence that Defendant represented she was the former director of the Cumberland County Department of Social Services, and that she had successfully obtained several federal grants in the past. The evidence suggests that Defendant used these fabrications to gain trust from the church leaders and induce them to enter into a contractual relationship. Because Defendant's relationships with the churches were based upon falsities, and Defendant's business relationships did not produce results as promised, there is evidence that her failure to obtain the federal grants was based upon more than mere ineptness. Moreover, evidence that Defendant received payment for promises to multiple churches she never fulfilled is indicative of a scheme to obtain money through intentional deceit and not merely a failure to provide professional services. See State v. Barfield, 127 N.C. App. 399, 402, 489 S.E.2d 905, 908 (1997) (holding that a trial court properly denied a motion to dismiss an obtaining property by false pretenses charge where the state presented substantial evidence that the defendant failed to fulfill promises made to two other witnesses.)
Accordingly, we hold that the trial court's failure to inform jurors of Defendant's requested instruction was not an abuse of discretion that prejudiced Defendant at trial.
III.
In her final argument, Defendant contends that if "this court concludes that the offense of obtaining advances under promise of work is not a greater offense but is a lesser offense of obtaining property by false pretenses, then the trial court committed plain error in failing to instruct the jury on the lesser offense." We disagree.
When considering whether to submit to the jury a lesser included offense, the trial court must determine whether (1) the lesser offense is, as a matter of law, an included offense for the crime for which the defendant is indicted and (2) there is evidence in the case which will support a conviction of the lesser included offense.
State v. Smith, 186 N.C. App. 57, 65, 650 S.E.2d 29, 35 (2007) (citation and quotations omitted). Here, as discussed in the first section, the offense of obtaining advances under promises to work and obtaining property by false pretenses have differing essential elements. While one action may violate both statutes, one is not a lesser included offense of the other. One statute prohibits false representations related to promises to work and the failure to complete that work; the other statute prevents false representations made with the intent to deceive. Because neither statute in question is a lesser included offense of the other, the trial court did not erroneously fail to provide jurors with an instruction as to the offense of obtaining advancements under promises to work statute. Accordingly, we conclude there is no error.
No Error.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).