Opinion
No. COA10-283
Filed 18 January 2011 This case not for publication
Appeal by defendant from judgment entered 9 September 2009 by Judge Kenneth C. Titus in Wake County Superior Court. Heard in the Court of Appeals 11 October 2010.
Roy Cooper, Attorney General, by Gregory P. Roney, Assistant Attorney General, for the State. Gilda C. Rodriguez, for defendant-appellant.
Wake County No. 07 CRS 071692.
Defendant appeals from a judgment entered upon jury verdicts finding him guilty of forgery and obtaining property by false pretenses. At his trial, the State presented the following evidence: In July 2007, Danielle Doyle, a Child Protective Services employee, began investigating a report she had received from law enforcement involving defendant and his daughter, J.D. For several weeks Ms. Doyle attempted to reach the Davis family, but was unsuccessful. Ms. Doyle's first contact with the family occurred about a month after receiving the report from law enforcement, when she spoke to J.D. at Kingswood Elementary School in Cary. At that time, "[a]s part [of her] routine investigation[,]" Ms. Doyle "looked at [J.D.'s educational] file and made notes on it." About two weeks later, Ms. Doyle visited the school again, and photocopied the records in J.D.'s file.
To protect the identity of defendant's minor child, we refer to her as J.D.
According to the copy of J.D.'s birth certificate in her educational file, J.D. was born on 28 June 2000, her mother was Myriam Davis, and Myriam Davis was born in 1970. Upon discovering this, Ms. Doyle became concerned because the report she had received from law enforcement indicated that Myriam Davis was J.D.'s stepmother and that Myriam Davis was born in 1983 or 1984. Ms. Doyle contacted the Social Security office, the Department of State, and Wake County Human Services, which provided her copies of defendant's Medicaid records, and learned that J.D. was born on 28 June 2001.
Ms. Doyle gave the information she had gathered to Michelle Savage, a detective with the Cary Police Department. Based on it and on information discovered by Detective Savage, Detective Savage obtained and executed a search warrant for defendant's residence. During the search, officers discovered "numerous copies and versions of birth certificates," only one of which contained information matching the "correct birth certificate" from the Department of State.
Elaine Hoffelt, then the data manager for Kingswood Elementary School, testified that in 2005 a child became eligible to begin kindergarten if he or she had attained the age of five "on or before October 16." Defendant had registered J.D. for kindergarten, and she had begun kindergarten, in 2005 — one year before she was eligible.
A warrant was issued for defendant's arrest alleging that he had committed the offense of forgery, and he was subsequently indicted on the charge. A superseding indictment was later returned, adding the charge of obtaining property by false pretenses. Immediately before trial, defendant moved in limine to exclude the educational and Medicaid records from the evidence. After a hearing, the motion was denied.
On appeal, defendant first contends the trial court erred by denying his motion in limine to exclude from the evidence at his trial the copies of J.D.'s educational records that Ms. Doyle obtained. We disagree.
During his trial, defendant objected to Ms. Doyle's testimony concerning information from law enforcement records, but failed to object when Ms. Doyle testified about information in J.D.'s educational file and when the State introduced J.D.'s educational records into evidence. See N.C.R. App. P. 10(a)(1) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context."). Although defendant objected to the admission of the evidence in his motion in limine and "enter[ed] an exception" after the trial court heard and denied the motion, "[r]ulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered, and thus an objection to an order granting or denying the motion is insufficient to preserve for appeal the question of the admissibility of the evidence." State v. Tutt, 171 N.C. App. 518, 520, 615 S.E.2d 688, 690 (2005) (alteration in original) (internal quotation marks omitted). Defendant has therefore failed to preserve this issue for review.
Nevertheless, defendant also asserts that it was plain error to deny his motion in limine and admit the challenged evidence. See N.C.R. App. P. 10(a)(4) ("In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error."). However, in his brief, defendant merely defines the plain error standard and states that the trial court's denial of his motion in limine was plain error "since it is likely that a different result would have been reached at trial had the documents taken from J.D.'s school file not been admitted into evidence." Even assuming this argument or analysis was sufficient to support application of plain error review, see State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000) ("The right and requirement to specifically and distinctly contend an error amounts to plain error does not obviate the requirement that a party provide argument supporting the contention. . . ."), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001), we do not conclude that the denial of defendant's motion in limine was plain error.
Defendant argues on appeal that Ms. Doyle should have been prohibited from accessing J.D.'s educational records pursuant to N.C.G.S. §§ 7B-302(e) and 7B-3100. Defendant contends the records were obtained in violation of the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, which provides that, "No funds shall be made available . . . to any educational agency or institution which has a policy or practice of permitting the release of educational records. . . ." 20 U.S.C. § 1232g(b)(1) (2006). Although our Supreme Court has held that FERPA "does not forbid . . . disclosure of information concerning a student[; it] . . . simply cuts off Federal funds," Student Bar Ass'n v. Byrd, 293 N.C. 594, 599, 239 S.E.2d 415, 419 (1977), defendant argues that N.C.G.S. §§ 7B-302(e) and 7B-3100, by providing access to confidential information and records only "to the extent permitted by federal law and regulations," N.C. Gen. Stat. § 7B-302(e) (2009), and by authorizing the sharing of information only "to the extent permitted by federal law and regulations," N.C. Gen. Stat. § 7B-3100 (2009), incorporate FERPA, and therefore mandate compliance with FERPA. Defendant contends that because none of the exceptions enumerated in FERPA permitted disclosure of J.D.'s educational records in this case, Ms. Doyle should not have had access to them. On this basis, defendant argues that it was plain error for the trial court to deny his motion in limine and admit the evidence at trial. However, defendant did not assert this basis for exclusion of the evidence in his motion in limine, and a thorough review of the record and the transcript indicates that the trial court was not presented with and did not rule on the grounds for exclusion of the evidence that defendant presents to this Court.
"Plain error is error `so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'" State v. Holbrook, 137 N.C. App. 766, 767, 529 S.E.2d 510, 511 (2000) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)). Our Courts have applied the plain error doctrine to the trial court's instructions to the jury, see State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983), and to the admission of evidence. See State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983).
"[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
Id. at 740-41, 303 S.E.2d at 806-07 (alterations and omission in original) (internal quotation marks omitted) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)); see also State v. Thompson, 59 N.C. App. 425, 430, 297 S.E.2d 177, 181 (1982) ("Generally, a `plain error' is one which is obvious, which affect[s] the substantial rights of the accused, and which, if uncorrected, would be an affront to the integrity and reputation of judicial proceedings." (alteration in original) (internal quotation marks omitted), appeal dismissed and disc. review denied, 307 N.C. 582, 299 S.E.2d 650 (1983).
Previously, this Court has noted that "the essence of the plain error rule is that it be obvious and apparent that the error affected defendant's substantial rights." Holbrook, 137 N.C. App. at 769, 529 S.E.2d at 511. Because defendant did not argue in the trial court that North Carolina law incorporated the provisions of FERPA, it was not "obvious and apparent" to the trial judge that the evidence could be inadmissible on that basis, and that "the error affected defendant's substantial rights." Id. Under these circumstances, we decline to apply the plain error doctrine. See id. (declining to apply the plain error rule where the case did "not involve the cumulative effect of a single blatant error, such as admission of testimony on one issue" (emphasis added)); see also State v. Morgan, 168 N.C. App. 409, 607 S.E.2d 706 (2005) (unpublished) ("We decline to attribute plain error to a court based upon its failure to adopt, sua sponte, a novel application of law without any prompting from the parties and without any precedent to support such an application. To find plain error in this circumstance `would be departing from the fundamental requirements of the plain error rule of obviousness and apparentness of error.'" (quoting Holbrook, 137 N.C. App. at 769, 529 S.E.2d at 511)).
Defendant next contends the trial court erred by admitting into evidence the testimony of Brenda Honeycutt, the Medicaid case manager who handled defendant's Medicaid applications. Defendant argues the testimony was admitted in violation of N.C.G.S. § 8C-1, Rules 401, 402, 403, and 404(b). Again, defendant failed to object at trial and contends it was plain error to admit the evidence. See N.C.R. App. P. 10(a)(4).
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, 404(b) (2009). Rule 404(b) is a rule of inclusion, "subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged." State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2009). Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403 (2009).
Ms. Honeycutt testified that Wake County Human Services received defendant's first Medicaid application on 22 November 2004. The application attested that J.D. was born on 21 June 2001. In April 2005, however, defendant's re-enrollment application attested that J.D. was born on 28 June 2000. Accompanying the application was a note stating, "Please make correction to child's date of birth [J.D.] 6-28-2000." Following that application, defendant mailed or faxed re-enrollment applications to Wake County Human Services approximately every six months attesting that J.D. was born on 28 June 2000, as well as a certified copy of a birth certificate for J.D. indicating that she was born 28 June 2000. Although submitted by mail and fax, the applications were signed with defendant's name.
Ms. Honeycutt's testimony that, before presenting a false birth certificate to Kingswood Elementary School, defendant requested a change in J.D.'s birth date in the Medicaid file was relevant to show defendant's intent and plan to alter J.D.'s birth certificate to gain her admission to school in 2005. It was also highly relevant to the issue of the identity of the perpetrator of the offenses. For any of these non-character bases, the evidence was admissible under Rule 404(b). Further, because the evidence was highly probative, it was not substantially outweighed by the danger of unfair prejudice. Thus, we conclude there was no error, and certainly not plain error, in the trial court's admission of Ms. Honeycutt's testimony. See State v. Robinson, 346 N.C. 586, 604, 488 S.E.2d 174, 185 (1997) (finding "no error, much less plain error," in the trial court's admission of testimony relevant to a non-character theory).
Defendant next contends the trial court erred by denying his motion to dismiss his charges at the close of the State's evidence because, he argues, there was insufficient evidence that he was the perpetrator of the offenses and insufficient evidence that he obtained anything of value, an element of the crime of obtaining property by false pretenses.
"`When a defendant moves for dismissal, the trial court is to determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.'" State v. Fraley, 182 N.C. App. 683, 688, 643 S.E.2d 39, 42 (2007) (quoting State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)). "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). "`If there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.'" Id. (quoting State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988)). "In ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn therefrom." Id. (internal quotation marks omitted).
The 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. Cagle, 182 N.C. App. 71, 75, 641 S.E.2d 705, 708 (2007) (quoting State v. Parker, 354 N.C. 268, 284, 553 S.E.2d 885, 897 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002)); see N.C. Gen. Stat. § 14-100 (2009). The essential elements of forgery are (1) a false making or alteration of some instrument in writing; (2) a fraudulent intent; and (3) the instrument must be apparently capable of effecting a fraud. State v. King, 178 N.C. App. 122, 128, 630 S.E.2d 719, 723 (2006). Furthermore, "[t]here is a presumption that one in possession of a forged instrument, who attempts to obtain money or goods with that instrument, has either forged or consented to the forging of the instrument." State v. Seraphem, 90 N.C. App. 368, 373, 368 S.E.2d 643, 646 (1988); see State v. Brady, 147 N.C. App. 755, 760, 557 S.E.2d 148, 152 (2001) ("Since there is evidence Defendant presented the . . . prescription and had it in his possession, it is presumed he either forged the document or had knowledge it was a forgery.").
The primary argument in defendant's brief asserts that, because Ms. Hoffelt was unsure whether defendant completed the registration forms at the school or completed them elsewhere, there was insufficient evidence that he was the perpetrator of the offenses. We disagree.
The State's evidence included uncontroverted testimony that defendant presented a false birth certificate when he registered J.D. for kindergarten, that defendant completed a data sheet and several forms in J.D.'s education file stating that J.D.'s date of birth was 28 June 2000, that "numerous copies and versions of birth certificates" were found in defendant's home during the officers' search, and that defendant included a false birth date for J.D. on his Medicaid application in 2005 accompanied by a note requesting a change in her birth date. Drawing all reasonable inferences from this evidence in favor of the State, there was substantial evidence that defendant was the perpetrator of the offenses, and the trial court did not err by denying defendant's motion to dismiss the charges for insufficient evidence.
Defendant's argument that the State was required to present evidence of the monetary amount expended by the alleged victim, Wake County Public Schools, on J.D.'s education during the 2005 through 2006 school year is similarly unpersuasive. N.C.G.S. § 14-100 provides in relevant part that it is a Class C felony to obtain "money, goods, property, services, chose in action, or other thing of value" "less than one hundred thousand dollars. . . ." N.C. Gen. Stat. § 14-100(a) (2009) (emphasis added). This Court has stated that "the essence of [obtaining property by false pretenses] is the intentional false pretense — not the resulting economic harm to the victim." State v. Hines, 36 N.C. App. 33, 42, 243 S.E.2d 782, 787 (holding that the defendant's "compensation [to the victim] for a few days work" failed to negate the element that he obtained services by making a false pretense), disc. review denied and appeal dismissed, 295 N.C. 262, 245 S.E.2d 779 (1978). "The gravamen . . . is making the false pretense and, thereby, obtaining another person's property or services." Id. Further, "[t]he ultimate loss to the victim . . . is an issue which is irrelevant to the purpose of the criminal statute and is an issue properly within the province of the civil courts." Id.
The State presented evidence that in the 2008 through 2009 school year, approximately $8300.00 was expended per student in the Wake County Public Schools, that some of that funding is provided by county, state, and federal sources, and that a bit less money would have been expended in 2005. The State also presented evidence that a child is ineligible to begin kindergarten until he or she attains the age of five, and that J.D. began kindergarten when she was four. Drawing all reasonable inferences from this evidence in favor of the State, there was sufficient evidence of the element that defendant obtained value — one year of Wake County Public School services for which J.D. was ineligible — such that it was not error to deny his motion to dismiss.
Finally, defendant contends he was deprived of effective assistance of counsel as a result of his trial counsel's failure to object when J.D.'s educational records were admitted into evidence, when testimony concerning defendant's Medicaid applications was admitted into evidence, and when several portions of witnesses' testimony, which he contends were "irrelevant and prejudicial" and "accused [him] of being a bad parent," were admitted into evidence. We disagree.
"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components." Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984). "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. Second, "[t]he 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." Id. at 694, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 80 L. Ed. 2d at 697. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 80 L. Ed. 2d at 698. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697, 80 L. Ed. 2d at 699.
Defendant contends his trial counsel was ineffective for failing to object when J.D.'s educational records were admitted into evidence. But, defendant does not argue on appeal that the trial court erred by denying his motion in limine on the grounds he argued in the trial court. Thus, he cannot demonstrate that if his counsel had objected during his trial, there is a reasonable probability that the result at his trial would have been different. Due to our previous conclusion that testimony related to defendant's Medicaid applications was admissible, we also overrule defendant's argument that his counsel was ineffective for failing to object to the admission of that evidence.
Finally, we are unpersuaded by defendant's argument that he received ineffective assistance of counsel as a result of his counsel's failure to object to "irrelevant and prejudicial evidence that accused [him] of being a bad parent." Defendant asserts several portions of the testimony of various witnesses were irrelevant and prejudicial, and that cumulatively, admission of such testimony prejudiced the outcome of his trial. Defendant points to testimony that he failed to attend a parent-teacher conference and a student support meeting, frequently brought J.D. to school late, was not receptive to J.D. receiving school-based mental health services, that J.D. was not developmentally ready for kindergarten her first year, and that J.D. had "gone dramatically downhill" in first grade. While we agree that some of this testimony may not have been highly relevant to the State's case, given the State's evidence as previously discussed, defendant falls short of demonstrating there is a reasonable probability that the outcome of his trial would have been different had counsel objected to the admission of such evidence.
No error.
Judges STEPHENS and STROUD concur.
Report per Rule 30(e).