Opinion
No. COA09-992
Filed 1 June 2010 This case not for publication
Appeal by defendant from judgments entered 26 November 2008 by Judge Jack W. Jenkins in Pitt County Superior Court. Heard in the Court of Appeals 24 May 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Thomas R. Miller, for the State. Winifred H. Dillon for defendant-appellant.
Pitt County Nos. 07 CRS 11901-06.
Defendant Barbara Rupert Campbell appeals from judgments consistent with jury verdicts finding her guilty of five counts of obtaining property by false pretenses and one count of conspiracy to obtain property by false pretenses. After careful consideration of the argument advanced in defendant's brief in light of the record and the applicable law, we find no error in the proceedings leading to the entry of the trial court's judgments.
I. Factual and Procedural Background
Beginning in the 1980s, defendant operated a day care center in Farmville, North Carolina. Defendant's daughter and sister helped defendant run the facility, which was located on property leased from Mr. and Mrs. S. Edward Harris. During the 1990s, the Harrises began loaning money to defendant to assist in the operation of the day care center.
Starting in 1999 and continuing through 2003, defendant, her daughter or her sister hand-delivered letters to the Harris' residence. These letters, which purported to be from the North Carolina Department of Public Instruction or the Social Security Administration, requested money for the day care center. Each letter promised the Harrises that, if they would provide money to be used to pay some pending obligation of the day care, the agency in question would ensure repayment. Mrs. Harris believed these letters were authentic and, based on that belief, provided money to defendant.
By separate bills of indictment, defendant was charged with conspiracy to obtain property by false pretenses and obtaining property by false pretenses for each year from 1999 through 2003. More specifically, defendant was charged with conspiracy to obtain property by false pretenses in File No. 07 CRS 11901 and with obtaining money from Mrs. Harris by false pretenses: (1) in an amount of less than $100,000 between 1 January 1999 and 31 December 1999 (File No. 07 CRS 11904); (2) in an amount of $100,000 or more between 1 January 2000 and 31 December 2000 (File No. 07 CRS 11905); (3) in an amount of $100,000 or more between 1 January 2001 and 31 December 2001 (File No. 07 CRS 11906); (4) in an amount of less than $100,000 between 1 January 2002 and 31 December 2002 (File No. 07 CRS 11902); and (5) in an amount of $100,000 or more between 1 January 2003 and 31 December 2003 (File No. 07 CRS 11903).
Before the trial began, the trial court allowed the State's motion to amend the indictment relating to defendant's alleged conduct during 2003. The indictment originally returned against defendant in File No. 07 CRS 11903 stated as follows:
The jurors for the State upon their oath present that on or about the date of offense shown [1-1-03 and 12-31-03] and in the County named above [Pitt] the defendant named above [Barbara Rupert Campbell] unlawfully, willfully and feloniously did knowingly and designedly with the intent to cheat and defraud did obtain and attempt to obtain $100,000 or more in U.S. Currency from Joyce G. Harris d/b/a Eastern Area Management and Harris and Associates Rentals by means of a false pretense which was calculated to deceive and did deceive. The false pretense consisted of the following: The defendant represented documents purportedly written by authorities of the North Carolina Department of Public Instruction and/or others soliciting monies totaling $100,000 or more for the operation of day care and educational facilities for children in the Pitt County area with the expressed understanding that the State of North Carolina was guaranteeing the repayment of the monies; when in truth and fact, the documents were falsely made and counterfeited and no such persons were in positions of authority with the Department of Public Instruction. The false claims by the defendant enticed the victims into providing their money into this fraudulent scheme.
In response to the State's request to amend the indictment in File No. 07 CRS 11903, the trial court allowed the State to substitute the words "Social Security Administration" for "North Carolina Department of Public Instruction" and "State of North Carolina." In addition, the trial court allowed the State to delete the words "and no such persons were in positions of authority with the Department of Public Instruction."
Defendant's case then proceeded to trial. At the conclusion of the trial, the jury convicted defendant as charged. The trial court consolidated defendant's convictions for conspiracy to obtain property by false pretenses in File No. 07 CRS 11901 and obtaining property by false pretenses in 2003 in File No. 07 CRS 11903 for judgment and sentenced defendant to a term of 100 to 129 months imprisonment in the custody of the North Carolina Department of Correction; to a concurrent term of 8 to 10 months imprisonment in the custody of the North Carolina Department of Correction for obtaining property by false pretenses in 2002 in File No. 07 CRS 11902; to another concurrent term of 8 to 10 months imprisonment in the custody of the North Carolina Department of Correction for obtaining property by false pretenses in 1999 in File No. 07 CRS 11904; to another concurrent term of 100 to 129 months imprisonment in the custody of the North Carolina Department of Correction for obtaining property by false pretenses in 2000 in File No. 07 CRS 11905; and to a consecutive term of 100 to 129 months imprisonment in the custody of the North Carolina Department of Correction for obtaining property by false pretenses in 2001 in File No. 07 CRS 11906. Defendant noted an appeal from the trial court's judgments to this Court.
II. Analysis
In her sole argument on appeal, defendant contends that the trial court erred by allowing the State to amend the indictment in File No. 07 CRS 11903. According to defendant, the effect of the trial court's ruling, which substituted the words "Social Security Administration" for "North Carolina Department of Public Instruction" and "State of North Carolina," was to substantially alter the indictment returned against defendant in that case in violation of N.C. Gen. Stat. § 15A-923(e). We disagree.
As a general proposition, an indictment may not be amended. N.C. Gen. Stat. § 15A-923(e). "[T]he term `amendment' under N.C.[ Gen. Stat.] § 15A-923(e) [means] `any change in the indictment which would substantially alter the charge set forth in the indictment.'" State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996) (quoting State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984)). Nevertheless, under our case law, because "the purpose of an indictment is to give a defendant notice of the crime for which he is being charged," an amendment to an indictment is allowed if it does not substantially alter the charge, such that a court finds "that the proof was in line with the indictment." State v. Bowen, 139 N.C. App. 18, 27, 533 S.E.2d 248, 254 (2000).
The 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. State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980); N.C. Gen. Stat. § 14-100 (2009). The evidence offered by the State at trial in support of its contention that defendant obtained property by false pretenses from Ms. Harris corresponded to the allegations in the indictment essential to charge the offense, with the proof required of the State to convict under either the original or the amended indictment being essentially the same. In each instance, the State was required to prove that defendant utilized false documents to the effect that the repayment of monies provided by Ms. Harris for the operation of certain day care and educational facilities would be guaranteed by certain governmental agencies in order to entice Ms. Harris into providing money to defendant. The only difference between the original and the amended indictment was the name of the agency from which the letters purportedly originated, with the original indictment alleging that the letters came from the North Carolina Department of Public Instruction and the amended indictment alleging that they came from the Social Security Administration. The specific name of the agency is irrelevant to proving all essential elements of the charge. State v. Parker, 146 N.C. App. 715, 719, 555 S.E.2d 609, 612 (2001) (holding that the trial court did not err by allowing the amendment of a false pretenses indictment to change the identity of the property that the defendant falsely represented that he owned). For that reason, the change worked by the amendment involved a non-essential variance which did not substantially alter the charge set out in the original indictment. See Bowen, 139 N.C. App. at 27, 533 S.E.2d at 254. This is particularly true given that there is no indication in the record that defendant was unfairly surprised by the amendment. As a result, we hold that the original indictment properly served its purpose of providing defendant notice of the crime being charged and that the amendment did not "substantially alter" the charge given that the same set of operative facts underlay both charges.
The original indictment left open the possibility that the State might rely upon the use of letters from agencies other than the North Carolina Department of Public Instruction, since it alleged that the letters came from the North Carolina Department of Public Instruction "and/or others."
No ERROR.
Judges STEPHENS and BEASLEY concur.
Report per Rule 30(e).