Opinion
No. COA12–1315.
2013-08-6
STATE of North Carolina v. James Gregory ARMISTEAD.
Attorney General Roy Cooper, by Assistant Attorney General Larissa S. Williamson, for the State. W. Michael Spivey, for Defendant.
Appeal by Defendant from judgment entered 1 May 2012 by Judge W. Russell Duke, Jr., in Beaufort County Superior Court. Heard in the Court of Appeals 27 March 2013. Attorney General Roy Cooper, by Assistant Attorney General Larissa S. Williamson, for the State. W. Michael Spivey, for Defendant.
DILLON, Judge.
James Gregory Armistead (Defendant) appeals from a judgment entered following a jury verdict finding him guilty of two counts of obtaining property by false pretenses and for having attained the status of an habitual felon. We conclude there was no error at trial.
On 3 August 2009, Defendant enrolled in the federally funded Workforce Investment Act (WIA) Adult Program or Job Link Program, which provided, inter alia, “assistance with tuition, books, fees and supplies and other training related costs for vocational and technical training for eligible individuals.” Defendant was required to sign a contract to participate in the program, which provided in part:
ONLY ITEMS REQUIRED FOR TRAINING WILL BE APPROVED FOR PAYMENT. Required items are defined as items required by all students in the class or program. You must obtain prior approval from your WIA Career Consultant if required items are needed that is (sic) not included on your ITA (individual training account) voucher.
A participant who needed items for a class could obtain the items by delivering a letter from the instructor to the participant's case manager. However, there was no provision requiring a participant to return the items once he had completed the class or program.
Defendant was enrolled at Beaufort County Community College and in the WIA program in the fall semester of 2009, studying electrical and electronics engineering. When Defendant started classes, he had not received all of the tools and books necessary for his classes. Defendant filed an appeal with Job Link and testified that after he “was denied a couple of times, ... finally [,] at that last hearing[,] they told [him] to get the information that [he] needed to obtain the tools[.]” Defendant provided a letter from his school containing a list of the items he needed for his classes, and payment for the items was approved. Relevant to the facts of this case are three checks which Defendant received from the WIA program for the purchase of approved items.
On 8 December 2009, the WIA program gave Defendant a check payable to Office Depot for $161.24 to purchase a calculator. However, the day after the purchase, Defendant successfully returned the calculator for a cash refund of $161.24.
On 14 December 2009, the WIA program gave Defendant a check payable to Lowe's for $170.50 to purchase tools. Soon thereafter, Defendant attempted to return the tools for a cash refund, but Lowe's had a fifteen day waiting period. On 29 December 2009, exactly fifteen days after the purchase, Defendant returned the tools to Lowe's and received a cash refund of $170.50.
On 8 December 2009, the WIA program gave Defendant a check for $83.51 payable to the Beaufort Community College Bookstore to purchase books Defendant was to use for classes in the spring semester. However, on 15 December 2009, an unidentified person called the bookstore about book returns, and later, an unidentified person—who was not Defendant—went to the bookstore with Defendant's bookstore charge form for the spring semester of 2010. The person attempted to return two of the three books listed on Defendant's bookstore charge form for a refund. The bookstore would not make the refund because its policy was not to make cash refunds for books purchased with Job Link funds. The bookstore manager wrote a letter to Job Link on 17 December 2009 telling Job Link that Defendant had attempted to return two books.
Job Link submitted a complaint to the police department in Washington, North Carolina, where Defendant lived, and Detective Ron Black contacted Defendant by phone. When Detective Black told Defendant that he was investigating Defendant's purchase and return of a calculator and tools for cash, Defendant said, “I returned the tools back to the store, got the money so I could pay my light bill.” Defendant also said, “there was nowhere saying that I can't do that.” Defendant told Detective Black that “he didn't understand the charges,” and reiterated that “Job Link bought the tools for me. They're my tools. So I returned the tools back to the store for money so I could pay my light bill.”
Defendant was indicted on two counts of obtaining property by false pretenses, and, after a trial on the merits, the jury found Defendant guilty of both charges. The jury also found Defendant guilty of having attained the status of an habitual felon. The two obtaining property convictions were consolidated for judgment, and the trial court sentenced Defendant to 108 to 139 months incarceration. From this judgment, Defendant appeals.
I: Facial Validity of Indictments
In Defendant's first argument, he contends the trial court lacked jurisdiction to enter the judgment in this case because the indictments were facially invalid, since they failed to allege the essential elements of the offense of obtaining property by false pretenses in violation of N.C. Gen.Stat. § 14–100 (2011). We disagree.
“[W]here an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court.” State v. Seelig, ––– N.C.App. ––––, ––––, 738 S.E.2d 427, 431,disc. review denied, ––– N.C. ––––, ––– S.E.2d –––– (2013) (citation and quotation marks omitted). “On appeal, we review the sufficiency of an indictment de novo.” Id.
“North Carolina law has long provided that [t]here can be no trial, conviction, or punishment for a crime without a formal and sufficient accusation. In the absence of an accusation the court a[c]quires no jurisdiction [whatsoever], and if it assumes jurisdiction a trial and conviction are a nullity.” State v. Kelso, 187 N.C.App. 718, 722, 654 S.E.2d 28, 31 (2007), disc. review denied,362 N.C. 367, 663 S.E.2d 432 (2008) (citation and quotation marks omitted). “[A]n indictment must allege every element of an offense in order to confer subject matter jurisdiction on the court.” Id.
“Obtaining property by false pretenses consists of four elements: (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.” Seelig, ––– N.C.App. at ––––, 738 S.E.2d at 431;see alsoN.C. Gen.Stat. § 14–100 (2011) (citation and quotation marks omitted). “Regarding [this crime], it is the general rule that the thing obtained ... must be described with reasonable certainty, and by the name or term usually employed to describe it.” State v. Ledwell, 171 N.C.App. 314, 317, 614 S.E.2d 562, 565 (2005). However, an indictment charging the offense of obtaining property by false pretenses is sufficient if “the allegations [are] ‘sufficient to raise a reasonable inference that [property was obtained] because [the victim] was deceived by defendant's false representations.’ “ Seelig, ––– N.C.App. at ––––, 738 S.E.2d at 432 (emphasis in original) (quoting State v. Cronin, 299 N.C. 229, 236, 262 S.E.2d 277, 282 (1980)).
In this case, Defendant contends that the two indictments charging him with obtaining property by false pretenses are facially invalid. The first indictment, which concerned the transaction involving the calculator, alleged, in pertinent part, the following:
[T]he defendant named above unlawfully, willfully and feloniously did knowingly and designedly with the intent to cheat and defraud obtain U.S. Currency, from Mid–East Commission, JobLink Career Center, 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 returning items purchased at Office Depot for a cash refund after having purchased the items using a check provided to him by Mid–East Commission as part of the Workforce Investment Act Program. The defendant knew that the monies were provided by Mid–East Commission for the specific purpose of purchasing items necessary for classes the defendant was enrolled in at Beaufort County Community College.
(emphasis added). The second indictment, which concerned the transaction involving the tools, contained indistinguishable language.
Defendant specifically argues that the indictments in this case are invalid because “[t]he indictments ... do not allege that [D]efendant made any false representation by either word or deed, nor do they allege that, had he done so, there is any causal relationship between the false representation and obtaining the property.” In support of his argument, Defendant relies on State v. Whedbee, 152 N.C. 770, 774, 67 S.E. 60, 62 (1910), which states that an indictment “must directly and distinctly aver every fact or circumstance that is essential, and it cannot be helped out by ... inference.” (Emphasis added.) We agree with Defendant that the indictment fails to allege “directly and distinctly” the facts regarding Defendant's false representation. However, we conclude, in accordance with Seelig, ––– N.C.App. at ––––, 738 S.E.2d at 432, that the indictments were facially valid.
Seventy years after the Whedbee decision, our Supreme Court held that the allegations in an indictment charging a defendant with obtaining of property by false pretenses were “sufficient to raise a reasonable inference that the bank made the loan because it was deceived by defendant's false representations.” State v. Cronin, 299 N.C. 229, 238, 262 S.E.2d 277, 283 (1980) (emphasis added). Our Court explained Cronin in State v. Seelig, ––– N.C.App. at ––––, 738 S.E.2d at 432, stating that “[t]o the extent the Whedbee Court precluded reliance on inferences in reviewing indictments, that aspect of the opinion has been effectively overruled by Cronin.” Id.
In Seelig, the charging indictments stated, in relevant part, the following:
... [T]he defendant named above unlawfully, willfully and feloniously did knowingly and designed with the intent to cheat and defraud, obtain U.S. Currency, having a value of [monetary value] from [name of the victim], by means of a false pretense which was calculated to deceive and did deceive.
The false pretense consisted of the following: The defendant sold bread products to the victim that were advertised and represented as Gluten Free when in fact the defendant knew at the time that the products contained Gluten.
Id. at ––––, 738 S.E.2d at 431. The defendant argued that the indictments were fatally defective because the indictments did not state that it was the defendant who “advertised and represented” the bread as being gluten free, but simply employed the passive voice. Id. However, our Court, relying on Cronin, stated that the allegations contained in the first paragraphs of the indictments were sufficient to raise a “reasonable inference” that the defendant was the actor who “advertised and represented” the false representation:
We conclude that, as in Cronin, the allegations in the indictments were “sufficient to raise a reasonable inference” that defendant, who was expressly alleged to have obtained value from the victim by means of a false pretense, was also the person who made the false representation that the products contained gluten.
Id. at ––––, 738 S.E.2d at 432 (emphasis in original).
In the case sub judice, the second half of each indictment alleges that Job Link “provided” the funds to Defendant “for the specific purpose of purchasing items he needed for classes; i.e., Job Link provided the funds with the belief that Defendant would use the funds to purchase items he would be using in his classes. Admittedly, this part of each indictment does not “directly and distinctly” state that Mid–East Commission derived its belief from any representation made by Defendant. See Whedbee, supra. However, we believe the allegations in the first part of each indictment—that Defendant “obtain [ed] U.S. Currency, from [Job Link] by means of a false pretense which was calculated to deceive and did deceive”—created a reasonable inference that Job Link derived its belief from a false representation by Defendant that he would use the items purchased with the provided funds in his classes. Accordingly, following our rationale in Seelig, we believe Defendant's contention that the indictments fail to allege that he made a false representation is without merit.
We next address the second part of Defendant's argument, namely that the indictments failed to allege a causal connection sufficient to survive a facial challenge. With regard to the causal connection, “no particular form of allegation is required; an allegation that the money or property was obtained by means of a false pretense is sufficient to allege the causal connection where the facts alleged are adequate to make clear that the delivery of the property was the result of the false representation.” State v.. Childers, 80 N.C.App. 236, 241, 341 S.E.2d 760, 763,disc. review denied, 317 N.C. 337, 346 S.E.2d 142 (1986) (citation and quotation marks omitted). The indictments in this case allege that Defendant “obtained by means of returning items purchased at [two stores] for a cash refund after having purchased the items using a check provided to him by [Joblink][.]” The following causal connection between Defendant's acquisition of “U.S. Currency ... by means of false pretenses” and the fraudulent conduct he engaged in to procure the “U.S. Currency” can be reasonably inferred from the language in these indictments: Defendant represented that he would purchase items to use for classes with funds provided by Joblink; thereafter, Joblink delivered funds to Defendant; then, Defendant purchased items for classes; however, Defendant, in fact, never used the items for class but simply returned the items for cash. We believe this is sufficient to establish a causal connection. See State v. Ledwell, 171 N.C.App. 314, 318, 614 S.E.2d 562, 565 (2005) (holding that the indictments were sufficient when they alleged that the defendant attempted to obtain “United States currency” by communicating false pretenses, specifically, by “represent[ing] to an employee of Wal–Mart that he was entitled to a refund for a watch band, when in truth and in fact, the defendant knew that he had unlawfully taken the watch band and was not entitled to a refund”).
II: Motion to Dismiss
In Defendant's second argument, he contends the trial court erred by denying his motion to dismiss the charges of obtaining property by false pretenses for insufficiency of the evidence. We disagree.
“This Court reviews 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). “Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense[;][i] f so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455,cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000) (citation and quotation marks omitted). “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).
Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citations and quotation marks omitted) (emphasis in original).
In this case, Defendant challenges the sufficiency of the evidence to support the false pretense and causal connection elements, which are described in Section I above. Specifically, Defendant argues that “[Job Link] issued the checks for the purchase of the calculator and tools based upon a letter from Beaufort Community College representing that these items were needed ... not upon any representation by [Defendant].” Defendant also reiterates the testimony of Defendant's case manager, whose “understanding was that he needed [the tools] for ... the fall semester ... [and] the rest of his curriculum [;]” however, Defendant points out that the case manager “did not testify that it was defendant who gave her this ‘understanding’ rather than simply her own assumption.” Defendant, essentially, argues that he never made a false representation; and, therefore, there was no causal connection. However, the false pretense “need not come through spoken words, but instead may be by act or conduct.” Parker, 354 N.C. at 284, 553 S.E.2d at 897 (citation omitted). In any event, we believe that there was sufficient evidence from which a jury could infer that Defendant did make a false representation through his words and/or “act or conduct,” and, therefore, this argument is misplaced.
By signing the WIA/Job Link contract, Defendant represented that he understood that he would request funding only for those items that he needed for his classes. Defendant himself testified that in November 2009, he “made them aware that [he] hadn't received the necessary tools that [he] was supposed to have had for [his] classes .” The evidence shows that it was the Defendant who obtained and supplied Job Link with letters from instructors stating his need for items. In fact, Defendant's case manager testified that Defendant represented, quite forcefully, that he needed funding for items required in classes:
[A]t some point, his behavior was starting to escalate. He was becoming more forceful in his communication. And so I was under the impression that he was not being able to perform some of the work needed in the classroom because he did not have these tools.
The case manager subsequently testified that based on Defendant's representations and behavior, he took it upon himself to procure quotes for the items and ultimately the check, which he provided to Defendant. Accordingly, we believe there is sufficient evidence from which a jury could infer that Defendant represented to Job Link that he would use the funds to purchase items that he would use in his classes. Moreover, there is sufficient evidence from which a jury could infer that Defendant's Job Link case manager relied upon Defendant's representation and that Defendant had no intent to use the items for his classes but intended to use them solely as a means to obtain cash.
Defendant cites State v. Davis, 48 N.C.App. 526, 269 S.E.2d 291 (1980), for the proposition that there was no causal connection in this case. Davis is distinguishable from this case. In Davis, this Court held that the defendant's motions for nonsuit should have been granted as to obtaining property by false pretenses because, in that case, there was no evidence that the “expense voucher, the alleged misrepresentation, was the means by which defendant obtained property from the Town.” Id. at 531, 269 S.E .2d at 294. The defendant was “a town official with the authority to draw checks[,]” and the expense “voucher” could be filled out “at the same time ... the check was drawn.” Id. at 529–31, 269 S.E.2d at 292–94. Therefore, although the expense voucher contained false information, the expense voucher was not the means by which the defendant obtained property. Id. Rather, the defendant used his position of trust to obtain the checks, and the vouchers were merely supplied as a record of the transaction. Id. However, in the case sub judice, it could be inferred from the evidence that Defendant would not have been given the funds from Job Link had he not represented that he needed the funds to purchase items he would use for his classes. Therefore, the logic applied in Davis is inapplicable here.
III: Plain Error; Jury Instruction
In Defendant's third argument, he contends the trial court committed plain error by failing to instruct the jury that the State must prove beyond a reasonable doubt that the property allegedly obtained by false pretenses must be property belonging to some person or entity other than Defendant. We disagree.
“It is the duty of the trial court to instruct the jury on all substantial features of a case raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988) (citation omitted).
“In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N .C.R.App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied,555 U.S. 835, 172 L.Ed.2d 58 (2008). Plain error arises when the error is “so basic, so prejudicial, so lacking in its elements that justice cannot have been done [.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983), cert. denied,459 U.S. 1018, 74 L.Ed.2d. 513 (1982) (citation and quotation marks omitted). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N .C. 431, 440, 426 S.E.2d 692, 697 (1993); see also State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).
In this case, the trial court gave the following jury instruction:
The defendant has been charged with Obtaining Property by False Pretenses, two counts. For you to find the defendant guilty of this offense, on either or both counts, the State must prove five things beyond a reasonable doubt:
First, that the defendant made a representation to another.
Second, that this representation was false or not true.
Third, that this representation was calculated and intended to deceive....
Fourth, that the victim was in fact deceived by this representation.
And, fifth, that the defendant thereby obtained the property from the victim.
(emphasis added). Defendant contends, on appeal, that the property was his once he used the funds supplied by Job Link to buy the tools necessary for his classes, and that he could not “defraud [him]self.” Therefore, Defendant argues, there was no victim in this case, and Defendant cites Cronin for the proposition that the trial court committed plain error by failing to instruct the jury that “[t]he property or value must belong to someone other than the defendant.” However, we believe the trial court sufficiently instructed the jury on this point by stating that the State had to prove Defendant “obtained the property from the victim.” (emphasis added). As “from the victim” implies someone other than Defendant, we do not believe Defendant has demonstrated on appeal how the trial court committed plain error by not giving the specific instruction Defendant argues should have been given.
IV: Conclusion
In conclusion, Defendant had a fair trial, free from error, and was sentenced in accordance to law.
NO ERROR. Judge CALABRIA and Judge ERVIN concur.
Report per Rule 30(e).