Opinion
No. COA12–808.
2012-11-20
STATE of North Carolina v. Steven MARTIN, Defendant.
Roy Cooper, Attorney General, by David D. Lennon, Assistant Attorney General, for the State. William B. Gibson, for defendant-appellant.
Appeal by defendant from judgment entered 15 November 2011 by Judge R. Allen Baddour, Jr. in Wake County Superior Court. Heard in the Court of Appeals 22 October 2012. Roy Cooper, Attorney General, by David D. Lennon, Assistant Attorney General, for the State. William B. Gibson, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Steven Martin appeals from a judgment entered upon a jury verdict finding him guilty of obtaining property by false pretenses in violation of N.C.G.S. § 14–100. We affirm the decision of the trial court.
On 9 February 2011, defendant Steven Martin was charged with feloniously obtaining property by false pretenses in violation of N.C.G.S. § 14–100 arising from the sale of an automobile to Michael Wells on or about 4 November 2010. Defendant listed a white 2010 Honda Odyssey EXL van (“the vehicle”) for sale on the Craigslist website. Wells, the owner of a used car dealership, saw the listing in late October or early November 2010 and wished to purchase the vehicle. Wells and defendant communicated via e-mail and telephone and eventually agreed to a sale price of $28,500.00 for the vehicle. Wells testified that in the course of their negotiations, defendant told Wells that defendant had to pay off an existing loan on the vehicle in order to obtain clear title, but that “it would have been no problem for [defendant] to pay the loan off immediately and expedite the title so that [Wells] got the title in [his] hands.” The two men met on 4 November 2011, and the transaction took place as planned and was documented by a pre-printed “Automobile Bill of Sale.” This form provided, among other things, that defendant would provide Wells with a clear title with no liens “within a maximum of 14 days from the date of sale.”
The record contains a portion of an e-mail from defendant to Wells, sent sometime before the fourteen-day period had passed, in which defendant informed Wells, “I know you will be expecting the title soon ..., so I wanted to ask you if you could wait or, if you just want me to get your money back to you....” (First omission in original.) Wells responded that he “[did] not want to return the vehicle,” and that defendant's e-mail, which asked if Wells was willing to wait until the first of December to receive the title was “totally unacceptable.” Wells also wrote,
I was perplexed during our conversations as to why you sold [the vehicle] to me for quite a bit less than what Car Max offered and now I see why. You could not take advantage of them because you had to come up with the difference right on the spot.
I am not interested in being taken advantage.
You told me that you were going to pay off your loan right away. I even asked you during negotiations if you had the difference to pay off your loan and you said yes.
Wells further testified he “began having a hard time getting a hold of [defendant],” and was unable to speak with defendant again until approximately two weeks after the original sales transaction. When he did hear from defendant, Wells said defendant told him “he had spent part of the—part of [Wells'] money that was used to pay for the van” and that he “had run into a little bit of trouble and that he was going to immediately get the loan paid off and get [Wells his] title.” Then, in an e-mail sent to defendant dated 29 November 2010, Wells wrote, “I gave you ‘cash’ and you seem to be stumbling on getting me the title. All I ask is that you be open and honest with me and give me an idea when I can expect the title in my hands.”
Having still not received the vehicle title more than two months after the sale, in late January 2011, Wells contacted the North Carolina DMV and described the situation to Matthew Nies, a field inspector for DMV's License and Theft Bureau. Nies contacted defendant and gave him an opportunity to provide clear title to the vehicle, which defendant failed to do.
At the conclusion of the State's evidence, defendant's counsel made a motion to dismiss based upon the sufficiency of the evidence, which was denied. Defendant then testified on his own behalf. Defendant testified that he was experiencing financial difficulties at the time of the sale. Defendant also testified that before the transaction with Wells, he had taken the vehicle to CarMax which appraised it at a value of $30,000. Defendant testified that he could not sell the vehicle to CarMax since he “did [not] have any money to pay [the car loan] off at the time. Because it's quite obvious if [he] did, [he] would have just went [sic] with the CarMax offer.” Defendant testified that after the transaction with Wells, he spent some of the money from Wells to pay off “some immediate bills to get [his] head above water” and also lost some of the money through bad investments in the stock market. Defendant failed to renew his motion to dismiss at the conclusion of all the evidence. At the charge conference, neither party objected to the court's proposed instructions, nor requested the addition of any special instructions.
The jury found defendant guilty of obtaining property by false pretenses. Defendant was sentenced to a term of six to eight months imprisonment, with the sentence suspended on 60 months supervised probation upon condition that defendant pay Wells restitution of $28,500.00 or, alternatively, provide clear title to the vehicle. Defendant gave timely notice of appeal.
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Defendant first argues his counsel's failure to renew the motion to dismiss at the close of all the evidence, thereby failing to preserve for appellate review the issue of the sufficiency of the evidence, constituted ineffective assistance of counsel. We disagree.
“To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286,cert. denied,549 U.S. 867, 166 L.Ed.2d 116 (2006). “[T]o establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (internal quotation marks omitted).
Even though defense counsel failed to preserve defendant's right to substantive appellate review of his first issue on appeal in accordance with the appellate rules promulgated by our Supreme Court, our courts have nevertheless determined that ineffective assistance of counsel claims “brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (emphasis added), reh'g denied, 354 N.C. 576, 558 S.E.2d 862 (2001), cert. denied, 535 U.S. 1114, 153 L.Ed.2d 162 (2002). Thus, the dispositive issue before us, even though not otherwise preserved, becomes whether there is a reasonable probability that the trial court would have granted defendant's motion to dismiss for insufficiency of the evidence had defense counsel renewed the motion at the close of all the evidence. The standard for ruling on a motion to dismiss “ ‘is whether there is substantial evidence (1) of each essential element of the offense charged, ... and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” ’ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v.. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “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). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 132 L.Ed.2d 818 (1995).
The North Carolina Supreme Court has defined the offense of obtaining property by false pretenses as “(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). Defendant challenges only the intent prong of the offense and argues there was insufficient evidence presented tending to establish defendant possessed the requisite intent to deceive when he represented that he would be able to provide clear title. We limit our review accordingly.
This Court has stated that in determining the existence of intent, “[a] person's intent is seldom provable by direct evidence, and must usually be shown through circumstantial evidence.” State v. Compton, 90 N.C.App. 101, 104, 367 S.E.2d 353, 355 (1988). “[I]n determining the presence or absence of the element of intent, the jury may consider the acts and conduct of the defendant and the general circumstances existing at the time of the alleged commission of the offense charged.” State v. Norman, 14 N.C.App. 394, 399, 188 S.E.2d 667, 670 (1972). “Evidence of conduct which shows merely that the defendant was inept or that he failed to diligently pursue the accomplishment of his promise, is insufficient to allow an inference that the promise was made without the present intention to comply with it.” Compton, 90 N.C.App. at 104, 367 S.E.2d at 355.
In the present case, defendant represented to Wells on multiple occasions that he would be able to pay off the loan on the vehicle in order to provide Wells with a clear title. However, both defendant and his wife were unemployed at the time of the sales transaction, and in the weeks following the sale, Wells testified that defendant told him several different stories as to how defendant planned to obtain the money to pay off the loan. Defendant testified that he turned down the opportunity to sell his vehicle to CarMax, which was $1,500 more than Wells' offer, because he was unable to obtain the funds to pay off his loan. At trial, defendant testified that had he possessed the money to pay off the loan, “it's quite obvious if I did, I would have just went [sic] with the CarMax offer.” Instead of applying the sales money to pay down the entirety of the loan, defendant testified that he used the money to pay “some immediate bills.” Defendant testified that part of the reason for his family's financial distress was that defendant had recently lost his family's life savings of some $200,000 in the stock market. In addition to this loss, defendant admitted to making “some bad investments with the rest of the money” from the sale of the vehicle to Wells.
Based on the evidence of defendant's conduct and the general circumstances existing at the time of the sales transaction, and contrary to defendant's assertion, we conclude there was ample evidence, beyond the mere failure of defendant to perform a contractual obligation, that defendant intended to defraud Wells, and that this evidence was sufficient to enable a reasonable mind to infer that defendant falsely represented his intention to convey the vehicle's title to Wells. Therefore, we hold that had defense counsel renewed the motion to dismiss at the close of all evidence, the motion would have been denied. Accordingly, defendant has failed to establish that his counsel's alleged deficient performance prejudiced his defense and this issue is overruled.
Defendant next contends his counsel was ineffective because his counsel failed to request that the court instruct the jury that N.C.G.S. § 14–100(b) provides that “[e]vidence of nonfulfillment of a contract obligation standing alone shall not establish the essential element of intent to defraud.” N.C. Gen.Stat. § 14–100(b) (2011). Defendant argues that the instruction was necessary because the evidence presented to the jury “was insufficient to prove that [defendant] made a false representation with the intention to deceive Michael Wells” and, without the instruction, “[t]he jurors were simply left in the dark as a point of law crucial to the defense.” Again, we disagree.
“[I]n order to show ineffective assistance of counsel because of the failure to request jury instructions, the defendant must show that without the requested instructions there was plain error in the charge.” State v. Swann, 322 N.C. 666, 688, 370 S.E.2d 533, 545 (1988) (citing State v. Seagroves, 78 N.C.App. 49, 54, 336 S.E.2d 684, 688 (1985), disc. review denied, 316 N.C. 384, 342 S .E.2d 905 (1986)).
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error “had a probable impact on the jury's finding that the defendant was guilty.”
State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, 334 (2012) (citation omitted) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)).
Defendant cannot meet his burden of showing that counsel's alleged error amounted to plain error. As discussed in the previous analysis, there was substantial evidence presented regarding defendant's intent which would allow a jury to reasonably conclude that defendant possessed a fraudulent intent in his dealings with Wells. In light of the numerous facts and circumstances tending to show that defendant possessed a fraudulent intent, defendant cannot show that, with the special instruction, the jury would probably have returned a different verdict. Therefore, defendant failed to show the requisite prejudicial effect to establish that the error was a fundamental error, and has failed to meet his burden of establishing plain error. Accordingly, this issue on appeal is overruled.
Affirmed. Judges STEELMAN and ERVIN concur.
Report per Rule 30(e).