Opinion
No. COA04-1511
Filed 15 November 2005 This case not for publication
Appeal by defendant from judgment entered 8 April 2004 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 10 October 2005.
Attorney General Roy Cooper, by Special Deputy Attorney General Jill B. Hickey, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant-appellant.
Wake County No. 03 CRS 3701.
Paula Jean Coppola ("defendant") appeals from a judgment entered on a jury verdict finding her guilty of obtaining property by false pretenses. We find no error.
The State presented evidence at trial tending to show that on 6 January 2003, a debit card number for the joint account of Chad and Melissa Manion ("Manion") was used to make an automated, telephonic payment of defendant's motor vehicle and real estate taxes. The following day, Manion checked the balance of the joint account. Noting a discrepancy, she inquired into and learned the details of the transaction in defendant's favor.
Manion and defendant were acquainted through Family Wellness Chiropractic, where Manion was a manager and defendant was receiving treatment for personal injuries. Manion testified that she, her husband, and defendant all utilized the parking lot at the back of the business, and defendant would at times spend over an hour in the parking area with her dog. Manion and her husband routinely left their cars unlocked, containing debit card receipts and bank statements bearing the zip code of her previous Wilmington address. The debit card number and zip code, in conjunction with a tax bill identification number mailed to and associated solely with defendant's accrued taxes, were entered into the telephonic system in order to make the tax payment in defendant's favor.
Due to disclosures involving defendant's treatment, Manion was aware that defendant was represented by counsel in a separate legal proceeding involving her personal injuries. Hoping to resolve the matter without police involvement, Manion contacted defendant's attorney, explained the circumstances surrounding the payment transaction, and gave the attorney forty-eight hours to contact defendant. Defendant's attorney failed to respond within forty-eight hours, so Manion again contacted him and understood from the conversation that defendant was denying any involvement with the payment. Accordingly, Manion filed a police report on 8 January 2003, after the payment cleared the account.
Defendant testified on her own behalf at trial. Defendant stated she paid her taxes in person and by check for approximately ten years and was unaware that payments could be made by phone. On 9 January 2003, defendant's attorney informed her that her taxes had been paid but would not divulge where he obtained the information or who paid the taxes. He further told her that he would try "to work it out . . . if [she] would sign [her] release and sign the checks for [her] vehicle accident[.]" Defendant refused because she believed her attorney was trying to "manipulate [her into] sign[ing] the checks. . . ." The following day, defendant went to the tax office and requested to pay her taxes. When the tax office confirmed that the taxes had already been paid, defendant inquired as to who made the payment and the details surrounding the transaction. Defendant informed the tax office that she had not made the previous payment and made the tax payment by personal check before leaving. The tax office subsequently reversed the previous telephonic payment involving the use of the Manions' debit card number.
Defendant was charged with one count of obtaining property by false pretenses. Both at the close of the State's evidence and the close of all the evidence, defendant moved to dismiss the charge for insufficiency of the evidence, which the trial court denied. Following closing arguments, the district attorney informed the court that she saw one of the jurors making gestures she characterized as inappropriate during her closing arguments. No further discussion and no objection was proffered. The jury returned a verdict of guilty, and defendant was sentenced for a term of five to six months in the North Carolina Department of Correction, the execution of which was suspended, and defendant was placed on supervised probation for twenty-four months. Defendant appeals.
In her first assignment of error, defendant asserts the trial court erred in denying her motion to dismiss the charge of obtaining property by false pretenses. "When considering a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004). "If substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to deny the motion." Id. Such evidence may be direct, circumstantial, or both. State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
The crime of obtaining property by false pretenses consists of the following 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.'" State v. Parker, 354 N.C. 268, 284, 553 S.E.2d 885, 897 (2001) (quoting State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980)). Defendant argues the State offered "no direct evidence that [she] made the false representation" and the allegations were "based entirely on the fact that the [debit] card number was used to pay [defendant's] tax bill." We disagree.
As our Supreme Court made clear in King, direct evidence is not required as long as there exists substantial circumstantial evidence of the elements of the charged offense. The fact that the only unauthorized use of the Manions' debit card was in defendant's favor was not the only evidence tending to implicate her. The evidence at trial also indicated the telephonic system required the entry of the tax bill number appearing on the tax statement mailed to defendant before a payment could be made in her favor; the debit card number and the zip code entered into the telephonic system were reflected on documents left in the Manions' cars, which they parked unattended and unlocked behind Manion's workplace where defendant was a patient; and defendant parked and was known to loiter for over an hour in that same area when being seen as a patient. Viewing this evidence in the light most favorable to the State, we hold there was sufficient evidence presented at trial to justify the denial of defendant's motion to dismiss.
Defendant alternatively argues the State failed to offer any evidence that defendant made a false representation to the Manions in order to deprive them of property. Defendant contends that the State must present substantial evidence that she made an untrue statement to the Manions in depriving them of property; however, under N.C. Gen. Stat. § 14-100 (2003), which criminalizes obtaining property by false pretenses, it is not "necessary to prove . . . that the person to whom the false pretense was made was the person defrauded, but it shall be sufficient to . . . prove that the party accused made the false pretense charged with an intent to defraud." Here, the State presented evidence that defendant made a false pretense to Voice Data Solutions in making the telephonic payment with an intent to defraud the Manions. This assignment of error is overruled.
In her final assignment of error, defendant asserts the trial court abused its discretion when it failed to further investigate a report by the district attorney that one juror made a waiving motion with his hand and mouthed what she speculated was "something about winding up" during her closing argument. Following the report, however, defendant neither objected to nor even commented on the alleged misconduct. As a result of this failure to object, defendant has waived any purported error. See State v. Steen, 352 N.C. 227, 254-255, 536 S.E.2d 1, 17 (2000) (concluding that a defendant had failed to preserve the issue of juror misconduct for appellate review where there was "no indication in the record that [the] defendant objected to the trial court's response or requested that the trial court further inquire into the matter"); N.C.R. App. P. 10(b)(1).
No error.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).