Opinion
No. COA12–899.
2013-05-7
STATE of North Carolina v. Demiko Dion HERNANDEZ, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Ann W. Matthews, for the State. Guy J. Loranger for defendant.
On a writ of certiorari by defendant from judgment entered 27 October 2011 by Judge Joseph E. Turner in Moore County Superior Court. Heard in the Court of Appeals 14 March 2013. Attorney General Roy Cooper, by Assistant Attorney General Ann W. Matthews, for the State. Guy J. Loranger for defendant.
ELMORE, Judge.
On 14 March 2011, Demiko Dion Hernandez (defendant) was convicted of one count of attempted obtaining property by false pretenses and one count of uttering a forged instrument in violation of N.C. Gen.Stat. §§ 14–100 and 14–120 in case number 10 CRS 53979 for his alleged conduct at the Southern Pines branch of Crescent State Bank. Defendant filed a petition for writ of certiorari on 28 September 2012 in this Court, seeking review of the criminal judgment entered 27 October 2011. This Court will hear defendant's appeal pursuant to defendant's petition for writ of certiorari for the purpose of reviewing the criminal judgment. After careful consideration, we vacate the trial court's judgment of attempted obtaining property by false pretenses and remand the case for sentencing on the uttering conviction only.
I. Background
On 2 November 2010, defendant entered the Southern Pines branch of Crescent State Bank in Moore County and allegedly attempted to cash check number 1886, purportedly drawn on the account of Young's Tree Tech, LLC., and made out to defendant. Bank teller Sandi Lowe testified that during the transaction defendant became “extremely nervous,” reached over, grabbed the check, and left. After reviewing footage from the surveillance camera, the bank comprised a photograph of defendant. Lowe sent an email including the check number, the account holder's name, defendant's name, and the photograph to the employees at nearby branches of Crescent State to alert them of the suspicious behavior.
Later that same day, Brooke Paterson, a teller at Crescent State Bank's Sanford branch, recognized defendant from the email when he entered the Sanford branch. Defendant presented Patterson with check number 1888 for the amount of $652.10, drawn on the account of Young's Tree Tech, LLC., and made out to himself. Patterson testified that the check was a “Versa check,” which was a “flag” to her because this type of check is commonly used in counterfeiting. During the transaction, Patterson stated that defendant “started getting anxious” and asked her to return the check; she refused and defendant left the bank.
At trial, defendant moved for dismissal based on alleged flaws in the indictment; he argued that count I charging him with attempted obtaining property by false pretense and count II charging him with uttering a forged instrument were fatally flawed. The trial court denied the motions for dismissal, and the jury returned a guilty verdict on both counts in 10 CRS 53979. Pursuant to a plea agreement, defendant admitted attaining habitual felon status in case 11 CRS 559. In exchange, the State dismissed pending charges of forgery, identification theft, uttering a forged instrument, and another habitual felon indictment in case 11 CRS 50751 and 11 CRS 2846. The trial court consolidated the charges and sentenced defendant for a Class C felony, prior record level II, to 68 months minimum and 91 months maximum imprisonment. Defendant now appeals.
II. Analysis
Defendant argues that the trial court lacked subject matter jurisdiction over the indictment charging him with attempted obtaining property by false pretenses where the indictment failed to describe with reasonable certainty the thing of value defendant allegedly attempted to obtain. We agree.
At trial, defendant did not challenge the trial court's subject matter jurisdiction; however, this issue is reviewable for the first time on appeal. In re SDA, 170 N.C.App. 354, 357–358, 612 S.E.2d 362, 364 (2005). “[W]e review the sufficiency of an indictment de novo.” State v. McKoy, 196 N.C.App. 650, 652, 675 S.E.2d 406, 409 (2009). Our Supreme Court has held that “[t]he purpose of an indictment is at least twofold: First, to make clear the offense charged ...; second, to put the defendant on reasonable notice so as to enable him to make his defense.” State v. Gregory, 223 N.C. 415, 420, 27 S.E.2d 140, 143 (1943).
An indictment couched in the language of the statute is generally sufficient to charge the statutory offense.” State v. Palmer, 293 N.C. 633, 638, 239 S.E.2d 406, 410 (1977). Pursuant to N.C. Gen.Stat. § 14–100, the essential elements of the crime of attempted obtaining property by false pretenses are as follows: “(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) (citation omitted). Additionally, the indictment must describe the thing of value allegedly obtained by the name or term usually employed to describe it; for example, an indictment charging the defendant with obtaining money by false pretenses should describe the money by the amount in dollars and cents. State v. Smith, 219 N.C. 400, 401, 14 S.E.2d 36, 36–37 (1941) (citation omitted).
However, in State v. Ledwell we recognized an exception. 171 N.C.App. 314, 614 S.E.2d 562 (2005). We concluded that an indictment alleging that the defendant attempted to obtain “United States currency” by “represent[ing] to an employee of Wal–Mart that he was entitled to a refund for a watch band” while knowing “he had unlawfully taken the watch band and was not entitled to a refund” was sufficient because it included the location where the alleged crime occurred and provided how the watch band was used to obtain “the United States currency.” Id. at 318, 614 S.E.2d at 565.
In the case sub judice, the indictment provides that on 2 November 2010 in Moore County defendant:
did knowingly and designedly with the intent to cheat and defraud, attempt to obtain goods and services, to wit: money, by means of a false pretense which was calculated to deceive and did deceive. The false pretense consisted of the following: The defendant attempted to cash a counterfeit check, knowing the check to have been forged and knowing that he was not entitled to any funds from the account.
Defendant specifically contends that the indictment is insufficient on its face because it provides only that defendant attempted to obtain “money,” instead of including the amount in dollars and cents. Alternatively, the State asserts that the case at hand and Ledwell are analogous, and, as such, the indictment for count I in case 10 CRS 53979 is sufficient without alleging an exact dollar amount.
We agree with defendant. Here, money—the thing alleged to have been obtained—is not described in terms of dollars and cents. Moreover, the indictment is without other sufficient identifying information, including (1) the check number, (2) the name of account holder, and (3) the location where defendant allegedly presented the forged check for payment. Thus, the facts presented in Ledwell are distinguished from those in the case sub judice. Additionally, we note that defendant stood accused of multiple offenses at the time of trial, including one for a similar transaction that also allegedly occurred on 2 November 2010 at a BB & T bank in Moore County. Given this, the lack of specificity in the indictment neglected to make clear the offense charged and failed to afford defendant reasonable notice so as to allow him to prepare his defense. Thus, neither purpose of the indictment was served. Parker, supra.
Alternatively, the State contends that the two counts in the indictment should be read together. We disagree. “[I]t is settled law that each count of an indictment containing several counts should be complete in itself. It is also settled that allegations in one count may be incorporated by reference in another count.” State v. Phillips, 162 N.C.App. 719, 721, 592 S.E.2d 272, 274 (2004). In the case sub judice, “count I in the indictment is neither complete in itself ..., nor does count I incorporate by reference information contained in count II.” Id.; see also State v. Hackney, 12 N.C.App. 558, 559, 183 S.E.2d 785, 786 (1971) (finding that the forgery count of an indictment was insufficient even though the full text of the check allegedly forged and uttered was included in the uttering count of the indictment). Therefore, we reject the State's contention that the specifics included in count II can be deemed sufficient to provide the defendant with adequate notice of the charges in count I.
III. Conclusion
In sum, we conclude that the indictment charging defendant with attempted obtaining property by false pretenses is insufficient as a matter of law. Accordingly, we vacate that judgment and remand the case for sentencing on the uttering conviction only.
Vacated and remanded; new sentencing hearing. Judges STEELMAN and STROUD concur.
Report per Rule 30(e).