Opinion
No. COA12–655.
2013-01-15
STATE of North Carolina v. Charlie Sampson WILSON.
Attorney General Roy Cooper, by Assistant Attorney General Caroline Farmer, for the State. Unti & Lumsden, LLP, by Sharon L. Smith, for defendant-appellant.
Appeal by defendant from judgment entered 12 January 2012 by Judge Phyllis M. Gorham in Sampson County Superior Court. Heard in the Court of Appeals 24 October 2012. Attorney General Roy Cooper, by Assistant Attorney General Caroline Farmer, for the State. Unti & Lumsden, LLP, by Sharon L. Smith, for defendant-appellant.
CALABRIA, Judge.
Charlie Sampson Wilson (“defendant”) appeals from a judgment finding him guilty of obtaining property by false pretenses and attaining the status of an habitual felon. We find no error at trial, but remand for a new hearing to determine defendant's habitual felon status.
I. Background
On 29 May 2010, defendant entered a store known as the Big Blue Store (“the store”) in Clinton, North Carolina. Defendant approached a cashier, Wendy Liseria (“Liseria”) and attempted to return two vice grips. Since defendant did not have a receipt for the tools, Liseria enlisted the help of assistant manager Mike Justice (“Justice”) to complete the return. Both Liseria and Justice checked the store computer. Neither of them could locate the purchase in the store computer. In addition, inventory records in the computer showed that there had only been one sale of vice grips, six months previously, and that there were two vice grips in stock. However, when Justice checked the shelves for the vice grips, both were missing. Initially, Justice and Liseria were reluctant to issue a refund, but when defendant became “a little loud and rowdy,” Justice told Liseria to issue defendant a gift card for the return value of the vice grips. After receiving a card with a value of $44.47, the return price of the two vice grips, defendant left the store.
A few days later, Justice reviewed the store security video clips with his general manager, the only store employee with access to the security video. The video showed defendant entering the store empty-handed and going to the aisle with the vice grips. Next defendant was seen picking up the vice grips, and taking them to the front of the store to return them for a refund. Subsequently, law enforcement was contacted and a stock clerk at the store was able to identify defendant.
Defendant was charged and indicted for obtaining property by false pretenses and attaining the status of an habitual felon. At trial in Sampson County Superior Court, defendant made a motion to dismiss at the close of all evidence. The motion was denied, and the jury returned a verdict finding defendant guilty of obtaining property by false pretenses. During the habitual felon phase of the trial, defendant stipulated to three prior felony convictions. The trial court sentenced defendant as an habitual felon to a minimum of 87 and a maximum of 114 months in the North Carolina Division of Adult Correction. Defendant appeals.
II. Petition for Certiorari
We note at the outset that defendant's Notice of Appeal does not comply with the requirements of Rule 4 of our Rules of Appellate Procedure. However, defendant has filed a petition for a writ of certiorari and we choose to grant defendant's motion.
Pursuant to Rule 4, notice of appeal may be given either orally at trial, or in a writing filed “with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days after entry of the judgment[.]” N.C.R.App. P. 4 (2011). While compliance with Rule 4 is essential for conferring jurisdiction upon this Court, we may liberally construe the notice of appeal to confer jurisdiction. Specifically, “if a party technically fails to comply with procedural requirements in filing papers with the [C]ourt, the [C]ourt may determine that the party complied with the rule if the party accomplishes the “ functional equivalent ” of the requirement.” Von Ramm v. Von Ramm, 99 N .C.App. 153, 157, 392 S.E.2d 422, 424 (1990).
In the instant case, defendant gave handwritten notice of his intent to appeal on 17 January 2012, five days after the conclusion of his trial. Appellate entries were made, giving the State notice of the appeal. Counsel for defendant was appointed on 31 January 2012. There is no indication in the record that the State was misled, or that the State did not receive notice of defendant's appeal. Therefore, we consent to hear defendant's appeal.
III. Motion to Dismiss
Defendant argues that the trial court erred by denying his motion to dismiss. Specifically, defendant contends that the State presented no evidence at trial of actual deception, an essential element of obtaining property by false pretenses. We disagree.
Initially, we note that the verdict sheet is missing from the record on appeal. However, the transcript reflects that the jury received the verdict sheet, completed it and gave it to the Clerk of Court when they returned to the courtroom with their verdict. Furthermore, the trial court polled the jury to confirm that the verdict finding defendant guilty of obtaining property by false pretenses was unanimous. This information in the record has been found to be sufficient to allow an appellate court to determine the appeal. See State v. Simmons, 165 N.C.App. 685, 688–89, 599 S.E.2d 109, 111–12 (2004); State v. Gray, 347 N.C. 143, 177–78, 491 S.E.2d 538, 553 (1997), abrogated by State v. Long, 354 N.C. 534, 557 S.E.2d 89 (2001).
“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) (citation omitted). “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).
Pursuant to Section 14–100 of our General Statutes,
[i]f any person shall knowingly and designedly by means of any kind of false pretense whatsoever ... obtain or attempt to obtain from any person within this State any money ... with intent to cheat or defraud any person of such money ... such person shall be guilty of a felony ...
N.C. Gen.Stat. § 14–100(a) (2011). Our Supreme Court has interpreted this statute to require the following elements for obtaining property by false pretenses,
(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. An essential element of the offense is that the defendant acted knowingly with the intent to cheat or defraud. Moreover, the false pretense need not come through spoken words, but instead may be by act or conduct.
State v. Parker, 354 N.C. 268, 283–84, 553 S.E.2d 885, 897 (2001) (internal citations omitted). This Court has long held that actual deception is not necessary for the offense of attempting to obtain property by false pretenses to be complete. State v. Wilburn, 57 N.C.App. 40, 46, 290 S.E.2d 782, 786 (1982). Where a defendant is charged with the completed offense, however, we have required some evidence that the victim was in fact deceived at the time of the offense. State v. Simpson, 159 N.C.App. 435, 439, 583 S.E.2d 714, 716–17 (2003). However, the State need only present evidence that supports an inference of deception. Id. at 439, 583 S.E.2d at 717.
In Simpson, the defendant pawned three cameras in two separate transactions. Id. at 436, 583 S.E.2d at 715. The owner of the pawnshop was suspicious as to the provenance of the cameras after he noticed a security device still attached to one of them. Id. The pawnshop owner contacted law enforcement, who confirmed that the cameras were stolen. Id. This Court held that since the pawnshop owner was “suspicious” and did in fact contact the sheriff's department, the jury could reasonably infer from his testimony that he was actually deceived. Id. at 439, 583 S.E.2d at 717. In State v. Edwards, the defendant presented a forged purchase order from his employer to a cashier at a hardware store to obtain several tools. 150 N.C.App. 544, 545, 563 S.E.2d 288, 289 (2002). Although the cashier was suspicious, and unsuccessfully tried to contact the store manager, she testified at trial that she believed the defendant was purchasing the items for his employer. Id. at 545–47, 563 S.E.2d at 289–90. This Court held that actual deceit was present even though the cashier had called the store manager for approval before processing the transaction. Id. at 547–48, 563 S.E.2d at 290.
In the instant case, defendant does not argue the State failed to present sufficient evidence that defendant (1) made a false representation which was (2) calculated and intended to deceive by which (3) defendant obtained value from the Big Blue Store. Parker, 354 N.C. at 284, 553 S.E.2d at 897. Rather, defendant contends that the State failed to produce evidence that his actions did, in fact, deceive. When Liseria could not find a recent purchase of vice grips, she requested Justice's assistance. Even though Justice determined that the vice grips should have been in the inventory, he issued defendant a gift card. Defendant contends that Justice was not deceived and the issuance of the gift card to defendant was a business decision.
However, Justice's testimony confirms that he was suspicious that the vice grips were stolen. He was not certain that the vice grips were stolen, because he did not see defendant pick up the vice grips when he was in the store and take them to the counter. Nevertheless, Justice communicated his suspicion to the store manager and asked to review the surveillance footage. The video clips, viewed by both Justice and the store manager after the transaction was complete, confirmed that defendant had taken the vice grips from the shelf and brought them to the counter to request a refund. Just as the State in Simpson presented evidence that supported an inference of deception, Justice's testimony supports an inference of deception. The jury could reasonably infer deception from Justice's suspicions and the act of giving defendant a gift card rather than a refund. Therefore, the State presented sufficient evidence for the jury to infer that employees in the store were deceived. Because there was “relevant evidence as a reasonable mind might accept as adequate to support” the conclusion that there was actual deception, we find no error in the trial court's judgment. Smith, 300 N.C. at 78, 265 S.E.2d at 169.
IV. Habitual Felon Status
Defendant argues, and the State concedes, that the trial court erred in sentencing him for attaining the status of an habitual felon when the charge was not submitted to the jury and defendant did not enter a guilty plea to the charge. We agree.
Pursuant to Section 14–7.1 of our General Statutes, “[a]ny person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared to be an habitual felon and may be charged as a status offender[.]” N.C. Gen.Stat. § 14–7.1 (2011). If a defendant is tried by jury, and is found guilty of the principal offense, “the bill of indictment charging the defendant as an habitual felon may be presented to the same jury.” N.C. Gen.Stat. § 14–7.5 (2011). Alternatively, the defendant may choose to plead guilty to the habitual felon charge. State v. Gilmore, 142 N.C.App. 465, 471, 542 S.E.2d 694, 699 (2001).
Guilty pleas must be entered in accordance with Section 15A–1022 of our General Statutes. N.C. Gen.Stat. § 15A–1022 (2011). A defendant wishing to enter a plea of guilty must be addressed personally by the judge, who must (1) inform him of the right to remain silent and that statements he makes may be used against him; (2) determine whether he understands the charge; (3) inform him of his right to plead not guilty; (4) inform him that by pleading guilty he waives his right to a trial by jury and to confront witnesses against him; (5) determine, if the defendant is represented, whether the defendant is satisfied with his attorney's representation; (6) inform him of the maximum and any mandatory minimum sentences for the charge at issue; and (7) ensure that, if the defendant is not a citizen, he is informed of the possible immigration consequences resulting from a conviction. N.C. Gen.Stat. § 15A–1022(a) (2011). In Gilmore, the defendant stipulated to three prior convictions, however he did not plead guilty to attaining the status of an habitual felon, and the issue of whether he was an habitual felon was never submitted to the jury. Gilmore, 142 N.C.App. at 471, 542 S.E.2d at 699. The Court held that the defendant's stipulation “in the absence of an inquiry by the trial court to establish a record of a guilty plea” was “not tantamount to a guilty plea” and reversed and remanded his habitual felon conviction. Id.
In the instant case, the jury found defendant guilty of obtaining property by false pretenses. Outside the jury's presence, defendant stipulated to three felony convictions. However, defendant did not plead guilty to attaining the status of an habitual felon, and the habitual felon charge was not submitted to the jury. The trial court found that “defendant admitted his status as an habitual felon” and sentenced him accordingly. Although defendant stipulated to three felony convictions, he did not enter a guilty plea as mandated by Section 15A–1022. Therefore, defendant's conviction of attaining the status of an habitual felon is remanded for a new hearing to determine defendant's habitual felon status.
V. Conclusion
The trial court did not err in denying defendant's motion to dismiss, as the State provided sufficient evidence for the jury to infer that the employees of the store were deceived. However, the trial court erred by sentencing defendant as an habitual felon, since defendant did not plead guilty to attaining the status of an habitual felon and the jury did not find him guilty of attaining the status of an habitual felon. Therefore, we remand for a new hearing to determine defendant's habitual felon status.
No error at trial; remanded for resentencing. Judges HUNTER, ROBERT C. and HUNTER, JR., ROBERT N. concur.
Report per Rule 30(e).