Opinion
No. COA12–1080.
2013-06-4
STATE of North Carolina v. Leon Gerald MARTIN.
Attorney General Roy Cooper, by Assistant Attorney General M. Denise Stanford, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Mary Cook, for Defendant.
Appeal by defendant from judgment entered 17 April 2012 by Judge Marvin K. Blount in Wayne County Superior Court. Heard in the Court of Appeals 27 February 2013. Attorney General Roy Cooper, by Assistant Attorney General M. Denise Stanford, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Mary Cook, for Defendant.
ERVIN, Judge.
Defendant Leon Gerald Martin appeals from a judgment sentencing him to a term of 80 to 105 months imprisonment based on his convictions for obtaining property by false pretenses and having attained habitual felon status. On appeal, Defendant argues that the trial court erred by denying his motion to dismiss the charge that had been lodged against him on the grounds that there was a fatal variance between the evidence presented at trial and the allegations contained in the indictment. After careful consideration of Defendant's challenge to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court's judgment should remain undisturbed.
I. Factual Background
A. Substantive Facts
On 8 May 2009, Defendant entered Sportsman's World and spoke with Richard Narron, who co-owned the store. After Defendant placed an order for T-shirts, the two men engaged in “warm and fuzzy” small talk. Although Mr. Narron ordinarily required the payment of a deposit in similar circumstances, he made an exception in Defendant's case based upon their conversation and the fact that Defendant appeared to be an “honorable customer.” As a result, Defendant was simply required to pay the $381.00 cost at the time that he picked the T-shirts up.
On 15 May 2009, Defendant picked up his order and paid for it using a check signed by Defendant and drawn on the account of Strategic Locations, a business owned by Defendant. On 27 May 2009, BB & T returned Defendant's check to Sportsman's World as unpayable. Kay Goulding, an employee in the accounting department at Sportsman's World, called Defendant concerning this problem. At that time, Defendant told Ms. Goulding that the Internal Revenue Service had frozen his account and that he would bring the payment associated with his order to the store. Although Mr. Narron also attempted to contact Defendant after the sale, his attempts to do so proved unsuccessful because Defendant had provided him with an incorrect number. After not hearing anything from Defendant within a reasonable period of time, Ms. Goulding contacted BB & T for the purpose of inquiring about the check in question.
After Sportsman's World presented the check for payment, BB & T returned the check because it had been unable to locate a record of the account number which appeared on the face of that instrument. Michelle Greene, a senior corporate investigator for BB & T, subsequently determined that the check in question was, in fact, legitimate and was associated with an actual account that had been closed on 22 October 2003 as the result of unaddressed overdrafts. At the time that the account was closed, there was a balance of -$65.04. The records maintained by BB & T concerning this account contained no information tending to show that Defendant had received notice that the account had been closed. According to Ms. Greene, the check in question did not appear to have been “forged” given that the signature appeared to be Defendant's.
B. Procedural Facts
A warrant for arrest charging Defendant with obtaining property by false pretenses was issued on 25 June 2009. On 8 September 2009, the Wayne County grand jury returned bills of indictment charging Defendant with obtaining property by means of false pretense, forgery, uttering, and having attained the status of an habitual felon.
The charges against Defendant came on for trial before the trial court and a jury at the 16 April 2012 criminal session of the Wayne County Superior Court. At the conclusion of the State's evidence, the trial court dismissed the forgery and uttering charges for insufficiency of the evidence while rejecting Defendant's challenge to the sufficiency of the evidence to support the obtaining property by false pretenses charge. After Defendant rested without putting on any evidence, the jury returned a verdict convicting Defendant of obtaining property by false pretenses. Subsequently, the jury found that Defendant had attained the status of an habitual felon. Based on the jury's verdicts, the trial court entered a judgment sentencing Defendant to a term of 80 to 105 months imprisonment. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
In his sole challenge to the trial court's judgment, Defendant argues that the trial court erred by denying his motion to dismiss the obtaining property by false pretenses charge that had been lodged against him on the grounds that there was a fatal variance between the allegations of the indictment returned against him in this case and the evidence presented against him at trial. We do not find this argument persuasive.
A. Standard of Review
“When ruling on a defendant's motion to dismiss, the trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007) (citing State v. Earnhardt, 307 N.C. 62, 65–66, 296 S.E.2d 649, 651 (1982) and N.C. Gen.Stat. § 15A–1227). “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). “In making its determination, 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, 115 S.Ct. 2565, 132 L.Ed.2d 818 (1995). This Court reviews challenges to the denial of a defendant's dismissal motion using a de novo standard of review. Smith, 186 N.C.App. at 62, 650 S.E.2d at 33. “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
B. Applicable Legal Principles
A motion to dismiss is in order when the prosecution fails to offer sufficient evidence the defendant committed the offense charged. A variance between the criminal offense charged and the offense established by the evidence is in essence a failure of the State to establish the offense charged.
State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971). “In order to prevail on such a motion, the defendant must show a fatal variance between the offense charged and the proof as to the gist of the offense.” State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997) (quotation marks omitted). “A variance will not result where the allegations and proof, although variant, are of the same legal significance,” so that, “[i]f a variance in an indictment is immaterial, it is not fatal.” State v. Roman, 203 N.C.App. 730, 734, 692 S.E.2d. 431, 434 (2010). Moreover, since “[a]llegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage,” “[t]he use of superfluous words should be disregarded” in determining whether a fatal variance between the allegations in the indictment and the proof presented by the State at trial actually exists. State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972).
An individual is guilty of obtaining property by false pretenses in the event that there is “(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. Compton, 90 N.C.App. 101, 103, 367 S.E.2d 353, 354 (1988) (citing State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980)). “The gist of obtaining property by false pretense is the false representation of a subsisting fact intended to and which does deceive one from whom property is obtained.” State v. Linker, 309 N.C. 612, 614–15, 308 S.E.2d 309, 310–11 (1983). “The State must prove, as an essential element of the offense alleged, that defendant made the misrepresentation as alleged,” so that, “[i]f the State's evidence fails to establish that the defendant made this misrepresentation but tends to show some other misrepresentation was made, then the State's proof varies fatally from the indictment[ ].” Id. A defendant who obtains property by writing and using a worthless check is guilty of obtaining property by false pretenses. State v.. Rogers, 346 N.C. 262, 264, 485 S.E.2d 619, 620–21 (1997) (expressly disavowing and disapproving “any language in this Court's opinion in [State v. Freeman, 308 N.C. 502, 302 S.E.2d 779 (1983),] to the extent that it may tend to indicate that an additional misrepresentation beyond the presentation of a worthless check in exchange for property is required to uphold a conviction for obtaining property by false pretenses”).
C. Analysis of Variance Issue in this Case
The indictment returned against Defendant in this case alleges, in pertinent part, that
On or about the 8th day of May, 2009, up to and including the 15th day of May, 2009, in Wayne County, Leon Gerald Martin unlawfully, willfully and feloniously did knowingly and designedly with the intent to cheat and defraud obtain sixty (60) T-shirts of the value of $381.00 from Richard Narron, Jeff McBarron and Sportsman's World, Inc., by means of a false pretense which was calculated to deceive and did deceive. The false pretense consisted of the following: this property was obtained by means of the defendant ordering sixty (60) T-shirts from Richard Narron on May 8, 2009; [Defendant] picked up the T-shirts on May 15, 2009, from Jeff McBarron and presented to Jeff McBarron a Branch Banking and Trust Company check, number 1138, on the Strategic Locations account made payable to Sportsman's World for the amount of $381.00 as payment and represented the check as a good and [bona fide] check when in fact the check that the defendant presented as payment is a false and fictitious check and the defendant knew the check would not be honored when presented for payment.
In seeking to persuade us that the record reveals the existence of a fatal variance between the indictment returned against Defendant and the evidence presented against Defendant at trial, Defendant argues, as he did before the trial court, that the State's evidence tended to show that the check in question “was a real, valid BB & T check” rather than “a forged check or a counterfeit check” and that the fact that the check in question was written on a previously valid account and had been signed by Defendant establishes that the check in question was not “false and fictitious.” In essence, Defendant argues that, given that the check in question was written on a genuine BB & T check form and was signed by Defendant, the presentation of that check in payment for the T-shirts did not establish that Defendant made the false representation alleged in the indictment. We do not find this argument persuasive.
As we have already noted, the “gist” of the offense of obtaining property by false pretenses is the making of a “false representation of a subsisting fact intended to and which does deceive one from whom property is obtained.” Linker, 309 N.C. at 614–15, 308 S.E.2d at 310–11. The indictment returned against Defendant purporting to charge him with obtaining property by false pretenses alleged, in pertinent part, that Defendant “represented the check as a good and [bona fide] check when in fact the check that [Defendant] presented as payment is a false and fictitious check and [Defendant] knew the check would not be honored when presented for payment.” Thus, given that the false pretenses indictment returned against Defendant alleges that Defendant “represented the check as a good and [bona fide] check” when that was not the case, it is clear that the representation that Defendant allegedly made to Sportsman's World, instead of resting upon the presentation of a “false and fictitious” check, involved an assertion that the check actually presented in payment for the T-shirts was a “good and [bona fide]” instrument. As a result, since the State's evidence clearly established that Defendant represented that the check in question would effectuate payment for the T-shirts despite the fact that the check was not, in fact, a valid means for achieving that end, we do not believe that there is a variance between the false pretenses indictment returned against Defendant and the evidence presented at trial concerning the false representation made by Defendant.
Secondly, even if the allegedly “false and fictitious” nature of the check constituted the portion of the indictment spelling out the false representation that Defendant allegedly made, we still do not believe that the evidence concerning the reason that the check in question was not sufficient to effectuate payment varied in any material way from the allegations of the false pretenses. Although Defendant does not spell out in detail what he believes constitutes a “false and fictitious” check, it appears that he contends that such a check must necessarily be one written on a form not actually prepared or disseminated by a financial institution or one bearing a forged signature. However, Defendant has cited nothing indicating that, in the false pretenses context, the words “false and fictitious” have the connotation inherent in his argument or are otherwise a term of art. In ordinary English usage, the word “false” means “not according to truth or fact; incorrect,” and the word “fictitious” means “not real or true, being imaginary or having been fabricated.” New Oxford English Dictionary 624, 641 (3rd ed.2010). According to the record, the check that Defendant used to pay for the T-shirts which he had ordered from Sportsman's World was drawn on an account which had been closed for years and which had a negative balance at the time that it was closed. Although the words “false and fictitious” would certainly describe a forged check or a check written on a counterfeit form, such checks are not the only instruments which can be described as “false and fictitious.” Instead, when taken in the light most favorable to the State, the record clearly suggests that Defendant attempted to pay for the T-shirts that he had ordered from Sportsman's World using a check drawn on an account that had been closed for more than five years and which he had every reason to believe would be insufficient to result in payment of the amount that he owed to the seller. Such a check, rather than being a “good and [bona fide]” means of payment, can readily be described as “false and fictitious” given Defendant's knowledge that it would not result in paying the debt that he owed to Sportsman's World. As a result, regardless of whether the false representation alleged in the false pretenses indictment was that the check was “good and [bona fide]” or that Defendant represented that a “false and fictitious” check would effectuate payment for the T-shirts, we conclude that there was no fatal variance between the allegations of the false pretenses indictment and the evidence presented by the State at trial.
Finally, even if there were a technical variance between the allegations of the false pretenses indictment and the evidence adduced at trial, we believe that the description of the check presented in order to effectuate payment for the T-shirts that Defendant ordered from Sportsmen's Word as “false and fictitious” was mere surplusage which the trial court was entitled to disregard in determining whether to grant Defendant's dismissal motion. In the event that the reference to the check in question as being “false and fictitious” were to be deleted, the indictment would still allege that Defendant “represented the check as a good and [bona fide] check when in fact ... [Defendant] knew the check would not be honored when presented for payment.” As a result, since the redacted version of the false pretenses indictment clearly alleges that Defendant obtained property by falsely representing that a check that purported to be “good and [bona fide]” “would not be honored when presented for payment,” the indictment at issue here clearly alleges the making of a false representation sufficient to support a conviction for obtaining property by false pretenses without materially changing the information provided to Defendant concerning the charge that he needed to refute at trial.
In seeking to persuade us to reach a different result, Defendant places substantial weight upon the Supreme Court's decision in Linker, in which, as we have already noted, the Supreme Court held that the “[S]tate must prove, as an essential element of the crime, that [the] defendant made the misrepresentation as alleged.” Linker, 309 N.C. at 615, 308 S.E.2d at 311. In Linker, the defendant was indicted for obtaining property by false pretenses based on allegations that he had represented himself as Barry W. Linker instead of Barry Lee Linker, which was his real name, in order to obtain money from Barry W. Linker's account. Id. at 613, 308 S.E.2d at 309–10. The evidence presented at trial, however, showed that, instead of representing himself to be Barry W. Linker, the defendant handed an identification card bearing his real name to the bank teller. Id. at 615, 308 S.E.2d at 311. As a result, the “false representation of a subsisting fact intended to and which [did] deceive one from whom property [was] obtained,” alleged in the indictment returned against the defendant never occurred. Linker, 309 N.C. at 614–15, 308 S.E.2d at 310–11. In this case, however, the State's evidence clearly supported the assertion that a check which Defendant represented as being “good and [bona fide]” in the course of obtaining property was, arguably, “false and fictitious” and, certainly, destined for dishonor upon presentation for payment. As a result, the situation at issue here is very different from the situation at issue in Linker.
As this Court has previously stated, “the purpose of the rule as to variance between indictment and proof [in criminal cases] is to avoid surprise ... and the discrepancy must not be used to ensnare the defendant or to deprive him of an opportunity to present his defense.” Watson v. N.C. Real Estate Comm., 87 N.C.App. 637, 646, 362 S.E.2d 294, 300 (1987) (quoting State v. Guffey, 39 N.C.App. 359, 362, 250 S.E.2d 96, 98 (1979)) (alteration in original) (quotation marks omitted), disc. review denied, 321 N.C. 746, 365 S.E.2d 296 (1988). The indictment in this case clearly informed Defendant that he was charged with presenting a check which he represented to be “good and [bona fide]” in order to pay for the T-shirts that he had ordered from Sportsman's World despite knowing that the check in question “would not be honored when presented for payment.” As a result of the fact that the State's evidence clearly permitted the jury to infer that Defendant had obtained property by presenting what appeared to be a valid check despite knowing that the check would be dishonored when presented for payment, we believe that Defendant was amply informed as to the nature of the accusation that had been lodged against him and is entitled to nothing more.
III. Conclusion
Thus, for the reasons set forth above, we hold that the trial court did not error by denying Defendant's dismissal motion. As a result, the trial court's judgment should, and hereby does, remain undisturbed.
NO ERROR. Judges BRYANT and ELMORE concur.
Report per Rule 30(e).