Opinion
No. COA11–1230.
2012-08-7
STATE of North Carolina v. Kristi Tehre SILER, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Tenisha S. Jacobs, for the State. Reece & Reece, by Michael J. Reece, for defendant-appellant.
Appeal by defendant from judgments entered 15 February 2011 by Judge W. Erwin Spainhour in Randolph County Superior Court. Heard in the Court of Appeals 6 March 2012. Attorney General Roy Cooper, by Assistant Attorney General Tenisha S. Jacobs, for the State. Reece & Reece, by Michael J. Reece, for defendant-appellant.
GEER, Judge.
Defendant Kristi Tehre Siler appeals her convictions of obtaining property by false pretenses. Defendant primarily contends on appeal that the trial court committed plain error when it failed to conduct its own comparison of handwriting samples before submitting them to the jury. While such a preliminary comparison is required by State v. Owen, 130 N.C.App. 505, 503 S.E.2d 426 (1998), defendant has failed to demonstrate that the trial court's failure to perform the comparison constituted plain error.
Facts
The State's evidence tended to show the following facts. Defendant opened an account with the North Carolina State Employee's Credit Union on 30 May 2002. She then closed that account three months later on 2 August 2002. After, however, the account had been closed for almost four years, five checks were written on defendant's closed account between 16 and 23 March 2006 and deposited in the Suntrust bank account of a business named Fashion Zone. Fashion Zone was owned and run by defendant's mother and stepfather.
Each of the checks was signed with defendant's name. One of the checks had defendant's driver's license number written on it indicating that defendant was the person who presented the check for deposit. Defendant's stepfather signed each of the deposit slips.
Defendant was indicted for five counts of obtaining property by false pretenses on 5 October 2009. The jury found defendant guilty on all five counts, and the trial court sentenced defendant for each count to a term of six to eight months imprisonment. The court suspended the sentences and placed her on supervised probation for 36 months. Defendant timely appealed to this Court.
Discussion
Defendant first contends that the trial judge committed plain error in failing to first himself compare the signature on defendant's license with the checks before admitting the driver's license into evidence for comparison by the jury. As our Supreme Court has recently explained:
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. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]
State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted).
This Court held in Owen:
In determining the authenticity of a document, it is a well-settled evidentiary principle that a jury may compare a known sample of a person's handwriting with the handwriting on a contested document without the aid of either expert or lay testimony. N.C. Gen.Stat. § 8C–1, Rule 901(b)(3); State v. LeDuc, 306 N.C. 62, 291 S.E.2d 607 (1982), overruled in part on other grounds by State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987). However, before handwritings may be submitted to a jury for its comparison, the trial court must satisfy itself “that there is enough similarity between the genuine handwriting and the disputed handwriting, such that the jury could reasonably infer that the disputed handwriting is also genuine.” LeDuc, 306 N.C. at 74, 291 S.E.2d at 614.
130 N.C.App. at 509, 503 S.E.2d at 429.
Thus, under Owen, before the trial judge, in this case, could allow the jury to compare defendant's signature on her license with the signature on the checks, the trial judge was required to satisfy himself that the signatures were sufficiently similar to permit the jury to reasonably infer that the signature on the checks belonged to defendant. See also 2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 247, at 963 (7th ed.2011) (suggesting that under Rules of Evidence, prior rule remained applicable that “in the absence of expert testimony, the judge, before allowing the jury comparison [of handwriting samples], must find sufficient similarity between the disputed and genuine samples to permit the jury to find the former to be genuine”).
Even though the submission of the license to the jury without the initial comparison violated Owen, defendant still bears the burden of showing “after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.” Lawrence, ––– N.C. at ––––, 723 S.E.2d at 334 (internal quotation marks omitted). We have ourselves compared the signature on defendant's driver's license with the signatures on the disputed checks. We hold that there is enough similarity between the signatures for submission to the jury. See Owen, 130 N.C.App. at 510, 503 S.E.2d at 429 (conducting review on appeal and concluding that trial court properly determined that signatures were sufficiently similar to warrant submission to jury). Consequently, even if the trial judge had conducted the required comparison, there would have been no impact on the ultimate outcome because the driver's license would have still been submitted to the jury for comparison. Defendant has, therefore, failed to show plain error.
Defendant next contends that the trial court erred in denying her motion to dismiss. “This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “ ‘Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, 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 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 913, 918 (1993)). “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).
Here, defendant was tried for obtaining property by false pretenses. 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.” State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980); see alsoN.C. Gen.Stat. § 14–100 (2011). The passing of a worthless check is sufficient to sustain a conviction under N.C. Gen.Stat. § 14–100. See State v. Rogers, 346 N.C. 262, 263, 485 S.E.2d 619, 620 (1997) (“The sole issue on appeal is whether the writing and passing of a worthless check in exchange for property, standing alone, is sufficient to uphold a conviction for obtaining property under false pretenses. We conclude that it is....”).
The State contended both that defendant was directly guilty and, alternatively, that even if defendant did not herself pass the worthless check, she could be found guilty based on having acted in concert. “ ‘Under the doctrine of acting in concert, if two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others in pursuit of the common plan.’ “ State v. McCullers, 341 N.C. 19, 29–30, 460 S.E.2d 163, 169 (1995) (quoting State v. Abraham, 338 N.C. 315, 328, 451 S.E.2d 131, 137 (1994)).
In this case, the State presented evidence that defendant opened an account at the State Employee's Credit Union on 30 May 2002 and closed that account on 2 August 2002. On 16 through 23 March 2006, five checks from defendant's account were deposited into the bank account of a business owned by defendant's mother and stepfather. A jury could reasonably find that defendant signed each check.
In addition, on one check, a SunTrust teller had written down defendant's driver's license number. According to SunTrust, a teller would have done so only after requesting the license from the person presenting the check. A jury could, therefore, reasonably conclude that defendant personally presented at least one of the checks.
Further, defendant made each of the checks payable to her mother and stepfather's business and indicated on the memo line that the checks were for a wedding gown, bridesmaid dresses, and, for three of the checks, a “wedding” generally. Because defendant was purporting to buy items for a wedding, but she had never been married or even engaged, a jury could infer that defendant was actively involved in the fraud.
Taking the evidence in the light most favorable to the State, the evidence presented was sufficient for a jury to determine that defendant committed the offense of obtaining property by false pretenses in connection with each worthless check. The trial court, therefore, properly denied the motion to dismiss.
No error. Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).