Opinion
No. COA09-1599
Filed 15 June 2010 This case not for publication
Appeal by defendant from judgment entered 1 July 2009 by Judge J.B. Allen in Durham County Superior Court. Heard in the Court of Appeals 7 June 2010.
Attorney General Roy Cooper, by David L. Elliott, for the State.
Mercedes O. Chut for defendant-appellant.
Durham County No. 08 CRS 049465.
Where defendant's sole assignment of error is the failure of the trial court to dismiss the charges for insufficiency of the evidence, and defendant failed to make a motion to dismiss at the close of the State's evidence and at the close of all of the evidence, defendant's appeal must be dismissed.
I. Factual and Procedural Background
On 6 May 2008, Michael McCullen (McCullen), an employee of Riverview Auto Center, Inc. (Riverview) in Durham, received a call from defendant reporting that her car had broken down. McCullen sent a wrecker to tow the vehicle to Riverview. McCullen subsequently called and notified defendant of the estimated cost to repair the vehicle. Defendant authorized repair of the vehicle, and upon completion of the repairs, McCullen called defendant and told her that the vehicle was ready. Defendant stated that she did not have the money to pay for the repairs. The vehicle remained at Riverview for approximately two months.
On or about 25 June 2008, defendant called John Powell (Powell), owner of Riverview, and advised that she had the money to pay the repair bill. Powell accepted payment by credit card over the telephone. Defendant indicated that someone would come to pick up the vehicle, and approximately five to ten minutes later, a man picked up the vehicle.
Clellie White (White) testified that when she reviewed her credit card bill, she discovered a charge in the amount of $450.10 to Riverview. White knew the charge was not hers because neither she nor her husband had a vehicle at that time. White called her neighbor, who took the credit card bill to Riverview and spoke with Powell about the charge. Powell investigated, and the charge was for the repair to defendant's vehicle. The neighbor called White and gave her defendant's name. White recognized defendant as one of her husband's home health care nurses. White did not give defendant permission to use the credit card.
Detective Arthur Holland (Detective Holland) of the Durham Police Department investigated the report filed by the White family. He interviewed defendant who stated that the Whites gave her permission to use the credit card to pay for the repairs to her vehicle. He then talked to White who denied giving defendant authorization to use their credit card to pay for the repair.
Defendant was indicted for the felonies of identity theft and obtaining property by false pretenses. On 1 July 2009, a jury found defendant guilty of both charges. As to the obtaining property by false pretenses charge, the trial court continued judgment from term to term. On the identify theft charge, defendant was found to be a Level III for felony sentencing and received an active prison term of 16-20 months.
Defendant appeals.
II. Failure to Make Motion to Dismiss Charges
In her sole assignment of error, defendant contends the trial court committed plain error in failing to dismiss the charges at the close of all the evidence. We disagree.
In order to challenge on appeal the sufficiency of the evidence to support a criminal conviction, a defendant must have moved to dismiss the charges at the close of all of the evidence at trial. N.C.R. App. P. 10(b)(3). Absent such motion, the appellate court is not required to address the issue of the sufficiency of the evidence. State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995). Plain error review is limited to jury instructions and evidentiary matters in criminal cases, and is not available for this type of alleged error. State v. Freeman, 164 N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004) (citation omitted). Defendant did not move to dismiss the charges at the end of the State's evidence or at the end of all of the evidence. Defendant's appeal is therefore dismissed. Id.
DISMISSED.
Judges HUNTER, ROBERT C. and BRYANT concur.
Report per Rule 30(e).