Opinion
No. COA12–1516.
2013-07-2
STATE of North Carolina v. Robert Gene BAILEY.
Attorney General Roy Cooper, by Assistant Attorney General Michael Bulleri, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for Defendant.
Appeal by Defendant from judgment entered 21 August 2012 by Judge D. Jack Hooks in Cumberland County Superior Court. Heard in the Court of Appeals 24 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Michael Bulleri, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for Defendant.
STEPHENS, Judge.
A jury found Defendant Robert Gene Bailey guilty of felonious conversion by a bailee, as proscribed by N.C. Gen.Stat. § 14–168.1, and obtaining property by false pretense, whereupon he pleaded guilty to habitual felon status. The trial court consolidated the offenses for judgment and imposed an active prison sentence of 94 to 122 months. Defendant gave notice of appeal in open court.
Defendant first claims the trial court erred in denying his motion to dismiss the felonious conversion by a bailee and obtaining property by false pretense charges, contending that the State failed to present sufficient evidence to send either charge to the jury. We disagree.
In ruling on a motion to dismiss for insufficiency of the evidence,
[t]he trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness[ ] credibility.
State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001) (citations and quotation marks omitted), cert. denied, 535 U.S. 1114, 153 L.Ed.2d 162 (2002).
Our General Statutes provide:
Every person entrusted with any property as bailee, lessee, tenant or lodger, or with any power of attorney for the sale or transfer thereof, who fraudulently converts the same, or the proceeds thereof, to his own use, or secretes it with a fraudulent intent to convert it to his own use, shall be guilty of a Class 1 misdemeanor.
If, however, the value of the property converted or secreted, or the proceeds thereof, is in excess of four hundred dollars ($400.00), every person so converting or secreting it is guilty of a Class H felony. In all cases of doubt the jury shall, in the verdict, fix the value of the property converted or secreted.
N.C. Gen.Stat. § 14–168.1 (2011) (emphasis added). A defendant's intent to defraud “may be shown by direct evidence, or by evidence of facts and circumstances from which it may reasonably be inferred.” State v. Morris, 156 N.C.App. 335, 340, 576 S.E.2d 391, 395 (citation and quotation marks omitted), cert. denied,357 N.C. 510, 588 S.E.2d 379 (2003).
Here, Defendant specifically challenges the sufficiency of the State's evidence only as to his intent to defraud the owner of the subject property. Viewed in the light most favorable to the State, the evidence tended to show that, in June of 2010, Defendant rented a 2010 Chevrolet Malibu from EAN Holdings, LLC, doing business as Enterprise Rent–A–Car (“Enterprise”). The rental agreement did not authorize Defendant to transfer the car to another person for money. The Malibu was originally due back to Enterprise on 8 July 2010, a date later extended to 16 August 2010. On 13 August 2010, Defendant purported to sell the Malibu to Ernestine Watson. Watson took possession of the Malibu and gave Defendant a down-payment of $2,500 on an agreed purchase price of $20,000. Assuring Watson that he would deliver the car's title and registration in “a couple of days[,]” Defendant gave her a receipt and putative “credit application” and even recommended a particular bank for financing. Based upon Defendant's representation that “he ha[d] sold [her] a car,” Watson made two monthly payments of $300 each to Defendant in September and October 2010.
On 20 August 2010, Defendant called Enterprise and claimed that he had been robbed of the keys to the Malibu at gunpoint, but still had the car itself. Enterprise sent Defendant a demand letter on 27 September 2010, to no avail. After Watson was ticketed for driving the Malibu with expired tags, she contacted Defendant to obtain title to the car. He promised to deliver the title and registration and take care of the ticket, but never did either. Watson went to Defendant's residence hoping to return the Malibu and get her money back. Defendant refused to take back the car or return Watson's money. Watson then reported the transaction to the North Carolina Division of Motor Vehicles (“DMV”) and gave a written statement to an inspector in DMV's License and Theft Bureau. Following his arrest, Defendant told the magistrate that he failed to return the vehicle to Enterprise because he had been robbed of the keys at gunpoint.
We conclude that the trial court properly denied Defendant's motion to dismiss the charge of felonious conversion by a bailee. The evidence showed that, after obtaining possession of the Malibu from its owner pursuant to a rental agreement, Defendant purported to sell the vehicle to Watson and transferred possession to her in exchange for a $2,500 down-payment. Defendant disregarded a demand letter from Enterprise and falsely reported a theft of the vehicle's keys while receiving monthly payments from Watson and promising her title to the car. This evidence supports a reasonable inference that Defendant intended to defraud Enterprise of its property. Defendant's argument is overruled.
The essential elements of obtaining property by false pretenses are “(1) a false representation of a subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which one person obtains or attempts to obtain value from another.” Parker, 354 N.C. at 284, 553 S.E.2d at 897 (citation and quotation marks omitted). Defendant challenges the sufficiency of the evidence as to the first element, arguing that Watson's testimony negated the State's theory that he falsely represented that he was selling the Malibu to her. Specifically, Defendant points to Watson's acknowledgment on cross-examination that her receipt for the transaction “says that the [$]2,500 was for [Defendant] to find [her] a deal that would be fundable (sic) in order to complete the deal [.]” We are unpersuaded by Defendant's argument.
The State adduced substantial evidence that Defendant obtained the $2,500 from Watson by falsely claiming that he was selling her the Malibu. Watson testified that Defendant represented the transaction as a sale and promised to transfer the car's title and registration to her in “a couple days.” Immediately following the testimony excerpted by Defendant, Watson testified that Defendant explained the language on the receipt as necessary to account for some outstanding “legal issues” that he would resolve. Moreover, any inconsistency in Watson's testimony was an issue for the jury. Parker, 354 N.C. at 278, 553 S.E.2d at 894. Defendant's argument is overruled.
Defendant next asserts that the trial court committed plain error in allowing Watson to offer improper hearsay testimony regarding his unfavorable “courthouse reputation[,]” testimony to which Defendant did not object at trial. Again, we are not persuaded.
To establish plain error, Defendant must show not only that the evidence was admitted erroneously but that the error “had a probable impact on the jury's finding that the defendant was guilty.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation and quotation marks omitted). While acknowledging he failed to object to this testimony, seeN.C.R.App. P. 10(a)(1), Defendant asserts that Watson's references to anonymous out-of-court statements about him constituted both improper character evidence and hearsay, which “deprived him of his fundamental right to a fair trial where the State was required to prove its case by competent, admissible evidence.”
It is axiomatic that “a statement is not hearsay if it is offered for a purpose other than to prove the truth of the matter asserted.” State v. Canady, 355 N.C. 242, 248, 559 S.E.2d 762, 765 (2002). “Specifically, statements are not hearsay if they are made to explain the subsequent conduct of the person to whom the statement was directed.” State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473,cert. denied,537 U.S. 896, 154 L.Ed.2d 165 (2002).
In the course of recounting her experience with the Malibu, Watson described going to court for driving with expired tags:
I went to my court date and I tried to explain what happened and this was actually after—after I explained what happened, then they told me— I mentioned his name and everyone was like, oh, Mr. Bailey.
(Emphasis added). After Defendant refused to return her money, Watson went to the DMV and, at trial, described the following exchange:
... I was telling them about [D]efendant] and the whole situation. They already knew. So they kind of gave me a bunch of information on him and how to resolve it. They said you need to go next door because there's nothing we can do. Can't give you the title or anything. So I went and I spoke to [the DMV investigator.]
(Emphasis added).
Watson's account of what she was told in court and at DMV was admissible to explain her subsequent act of reporting Defendant to law enforcement. See State v. Chapman, 359 N.C. 328, 355, 611 S.E.2d 794, 816 (2005). Further, even assuming arguendo that this testimony should have been excluded, Defendant offers no explanation of its probable impact on the jury's verdict. Given the overwhelming evidence of Defendant's fraudulent sale of the rental car to Watson, we find no likelihood that Defendant would have been acquitted but for Watson's brief references to others' opinions of Defendant. Accordingly, we overrule this argument.
We do observe sua sponte that the judgment entered by the trial court includes an erroneous finding that Defendant was being sentenced as a violent habitual felon and, therefore, also fails to record Defendant's prior record level (“PRL”) of IV. The record on appeal reveals these defects to be clerical errors. The trial transcript shows the court sentenced Defendant as a PRL IV based on the convictions to which he stipulated on the sentencing worksheet. We further note that Defendant's sentence falls within the presumptive range for a Class C felony and PRL IV. To ensure the accuracy of the trial court's records, however, we remand for correction of the judgment. See State v. Spencer, 187 N.C.App. 605, 614, 654 S.E.2d 69, 74 (2007) (clerical error as to violent habitual felon status); State v. McIlwaine, 169 N.C.App. 397, 402, 610 S.E.2d 399, 402 (2005) (clerical error in PRL).
Violent habitual felon status carries a mandatory sentence of life imprisonment without parole in non-capital cases. N.C. Gen.Stat. § 14–7.12 (2011).
NO ERROR; REMANDED for clerical correction in judgment. Judges McGEE and ELMORE concur.
Report per Rule 30(e).