State v. Evans

Full title: STATE OF NORTH CAROLINA v. JAMES CHRISTOPHER EVANS

Court: NORTH CAROLINA COURT OF APPEALS

Date published: Aug 16, 2011

NO. COA10-1555 (N.C. Ct. App. Aug. 16, 2011)

Opinion

NO. COA10-1555 Rutherford County No. 09 CRS 199-200

08-16-2011

STATE OF NORTH CAROLINA v. JAMES CHRISTOPHER EVANS

Attorney General Roy Cooper, by Assistant Attorney General Brenda Eaddy, for the State. Kimberly P. Hoppin for Defendant.

McGEE

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Appeal by Defendant from judgments entered 3 June 2010 by Judge Mark E. Powell in Superior Court, Rutherford County. Heard in the Court of Appeals 10 May 2011.

Attorney General Roy Cooper, by Assistant Attorney General Brenda Eaddy, for the State.

Kimberly P. Hoppin for Defendant.

McGEE, Judge.

James Christopher Evans (Defendant) was indicted on 12 January 2009 on two counts under N.C. Gen. Stat. § 14-100, which includes obtaining and attempting to obtain property by false pretenses. Defendant filed a motion to dismiss, or in the alternative, a motion to suppress, on 13 April 2010. Defendant also filed a motion in limine "to exclude the purported confession of [] Defendant[]" on 1 June 2010. The trial court denied all of Defendant's motions at trial. Defendant pleaded not guilty to the charges.

At trial, Angela Ezell (Ms. Ezell) testified she made a purchase using her State Employees' Credit Union (SECU) debit card (the debit card) at a Wal-Mart on 24 February 2007. On the way out of the store, Ms. Ezell stopped near the entrance for her son to play "the crane machine." SECU called Ms. Ezell several days later to inform her that her debit card had been recovered. Ms. Ezell did not know her debit card was missing until she received the call from SECU. The following charges were made using Ms. Ezell's debit card on 24 February 2007, after Ms. Ezell left Wal-Mart: a charge of $5.00 at Ron & Teddy's, a gas station in Forest City, North Carolina; and two attempted charges of $173.35 each at Myrick's Discount and Grocery (Myrick's), also in Forest City. Ms. Ezell did not make these charges and did not authorize anyone else to use her debit card at those locations on 24 February 2007. Ms. Ezell had never met Defendant and had no knowledge of him before police informed her that he was a suspect.

Detective Tommy Turner (Detective Turner) of the Forest City Police Department testified that he and Detective James Hoppes (Detective Hoppes) went to Rutherford Manor (the apartment complex) to speak with Lesley Nanny (Ms. Nanny) and her boyfriend, Defendant. Brook Wall (Ms. Wall), a cashier at Myrick's, had identified Ms. Nanny as the woman who attempted the purchases at Myrick's. Detective Turner questioned Defendant, while Detective Hoppes questioned Ms. Nanny. Detective Turner testified that Defendant told him

that [Ms. Nanny] had found the card on top of the bubble gum machine at Wal-Mart at the entrance, and that she had gave [sic] the card to him. He continued, he said that he had purchased $5 worth of gas on the card from Ron & Teddy's . . . [Defendant] said that he went to Myrick's Grocery and tried to purchase groceries with the card and had the card run through twice. He said it was denied both times. He said after it was denied he took it back to Wal-Mart to turn it back into customer service.

Detective Turner and Detective Hoppes concluded their questioning and returned to their vehicle where they compiled their notes from the two interviews.

Defendant later came to the police department to speak with Detective Turner. Detective Turner testified that Defendant said "he knew that he should not have used the card, but he got $5 worth of gas." Defendant was not in custody at either time he was questioned. Detective Turner never obtained a signed statement from Defendant, nor did he make any recording. Detective Turner also did not retrieve a video from Wal-Mart

that may have shown the debit card being stolen or returned to Wal-Mart. Detective Turner testified that, once he obtained Defendant's statement, he did not believe he needed the video.

Myrick Willard (Mr. Willard), an owner of Myrick's, testified that he and Ms. Wall were both working at Myrick's on 24 February 2007 when the charges to the debit card were attempted. Mr. Willard testified he remembered "a guy and a girl" who came into Myrick's and that they tried to buy "66 to 70 pounds" of steaks. He assisted Ms. Wall in attempting to scan the debit card the couple presented but the transactions were denied. Ms. Wall testified that Ms. Nanny brought the card to her to charge the steaks. Ms. Wall recognized Ms. Nanny because they had graduated from high school together. Neither Mr. Willard nor Ms. Wall could conclusively identify Defendant as the man in Myrick's.

Shelly Vallecillo (Ms. Vallecillo), a financial services officer at SECU, testified concerning a log of the transactions on the debit card between 18 February 2007 and 26 February 2007, which was admitted into evidence. Ms. Vallecillo confirmed that the log showed an authorized transaction for $5.00 at Ron & Teddy's and two denied transactions of $173.35 each at Myrick's. All three transactions occurred on 24 February 2007.

Defendant testified at trial that the police had modified the statement he made to them. Defendant testified that he, not Ms. Nanny, found a card on a gumball machine near the entrance to Wal-Mart on 24 February 2007, but that he immediately took it to Wal-Mart's customer service. Defendant testified: "I never said I found this card and used it for nothing." Defendant also testified that he was not at Myrick's on 24 February 2007, but had been there the day before.

In rebuttal, Detective Hoppes, testified that, once he and Detective Turner returned to their vehicle, they conferred about what they had learned and Detective Turner compiled notes on the investigation. Detective Hoppes testified that Detective Turner's statements to him immediately following the questioning of Defendant were consistent with Detective Turner's notes and testimony.

Defendant was convicted on 3 June 2010 of one count of attempting to obtain property by false pretenses and one count of obtaining property by false pretenses. Defendant was sentenced on 3 June 2010 to six to eight months in prison, which was suspended. Defendant received thirty months of supervised probation, with the first six months in an intensive supervision program. Defendant appeals.

I. Motion to Dismiss

In Defendant's first argument, he contends that the trial court erred in denying his motion to dismiss at the close of all the evidence because the State failed to present sufficient evidence to support convictions for obtaining, or attempting to obtain, property by false pretenses. We disagree.

Our Court has stated the standard of review on a motion to dismiss as follows:

N.C.G.S. § 15A-1227 allows a defendant to move to dismiss a criminal charge when the evidence is not sufficient to sustain a conviction upon the close of all evidence and after return of a guilty verdict but before the entry of judgment. In ruling on a motion to dismiss for insufficiency of the evidence, the trial court must determine "whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Evidence is not substantial if it raises only a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it. If substantial evidence supports 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.
When ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. "Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal." The denial of a motion to dismiss for insufficient evidence is a question of law, which we review de
novo.

State v. Rouse, 198 N.C. App. 378, 381-82, 679 S.E.2d 520, 523 (2009) (citations 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. Ledwell, 171 N.C. App. 314, 317, 614 S.E.2d 562, 565 (2005) (citation omitted). Attempting to obtain and obtaining property by false pretenses are both covered by N.C. Gen. Stat. § 14-100 and contain the same elements. N.C. Gen. Stat. § 14-100 (2009).

Defendant contends that his alleged confession is insufficient to support his convictions in light of the corpus delicti rule. Defendant claims "the State may not rely solely on the extrajudicial confession of a defendant, but must produce substantial independent corroborative evidence that supports the facts underlying the confession."

In State v. Cruz, 173 N.C. App. 689, 620 S.E.2d 251 (2005), this Court discussed the corpus delicti rule and its modern application at length:

[T]o survive a motion to dismiss, the State must provide some evidence in addition to
defendant's statements or confession. This is known as the corpus delicti rule, and in North Carolina there are two methods of proving the additional evidence requirement. In State v. Parker, our Supreme Court "expanded" the corpus delicti rule in North Carolina after extensive evaluation of the rule's multiple variations. The more traditional application of the rule is "that there be corroborative evidence, independent of the defendant's confession, which tends to prove the commission of the crime charged." Another, more modern method has been called the "'trustworthiness' version of corroboration and is generally followed by the federal courts and an increasing number of states.[]" This method was adopted by our Supreme Court in Parker. Parker and Trexler offer an understanding of each method of corroboration.
In Trexler, the Court explained that the traditional approach to the corpus delicti rule was still applicable in "cases in which there is some evidence aliunde the confession which, when considered with the confession, will tend to support a finding that the crime charged occurred."

The rule does not require that the evidence aliunde the confession prove any element of the crime. The corpus delicti rule only requires evidence aliunde the confession which, when considered with the confession, supports the confession and permits a reasonable inference that the crime occurred. . . . The independent evidence must touch or be concerned with the corpus delicti. . . . The expanded rule enunciated in Parker applies in cases in which such independent proof is lacking but where there is substantial independent

evidence tending to furnish strong corroboration of essential facts contained in defendant's confession so as to establish trustworthiness of the confession.

This rule does not require the State to come forward with evidence, absent the defendant's confession, that supports each element of the crime charged. Rather, "[a]pplying the more traditional definition of corpus delicti, the requirement for corroborative evidence would be met if that evidence tended to establish the essential harm, and it would not be fatal to the State's case if some elements of the crime were proved solely by the defendant's confession."
In Parker, the Court explained the modified approach, or the trustworthiness rule, as follows:

We adopt a rule in non-capital cases that when the State relies upon the defendant's confession to obtain a conviction, it is no longer necessary that there be independent proof tending to establish the corpus delicti of the crime charged if the accused's confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime.
We wish to emphasize, however, that when independent proof of loss or injury is lacking, there must be strong corroboration of essential facts and circumstances embraced in the defendant's confession. Corroboration of

insignificant facts or those unrelated to the commission of the crime will not suffice. We emphasize this point because although we have relaxed our corroboration rule somewhat, we remain advertent to the reason for its existence, that is, to protect against convictions for crimes that have not in fact occurred.

State v. Cruz, 173 N.C. App. 689, 691-93, 620 S.E.2d 251, 253 (2005).

The State presented evidence at trial that tended to confirm the sequence of events in Defendant's original confession, providing trustworthiness to Defendant's statement. First, at trial, Defendant admitted to finding a debit card on the gumball machine at Wal-Mart on 24 February 2007. Second, Mr. Myrick testified that a couple came into his store and attempted to make purchases with a debit card. Third, Ms. Wall testified she was working as a cashier the day of the attempted purchases at Myrick's and she identified one of those people as Ms. Nanny, Defendant's girlfriend. Fourth, Ms. Vallecillo confirmed that the transaction log of Ms. Ezell's debit card showed an authorized transaction for $5.00 at Ron & Teddy's and two denied transactions for $173.35 each at Myrick's on 24 February 2007. Finally, Defendant admitted that he took the debit card back to Wal-Mart, though he contends he returned the card immediately after finding it.

The State presented "substantial independent evidence tending to establish [the confession's] trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime." Id. at 692, 620 S.E.2d at 253 (quoting State v. Parker, 315 N.C. 222, 236, 337 S.E.2d 487, 495 (1985)). Defendant contends that his admission to finding a debit card at Wal-Mart is not strong enough corroborating evidence. However, when combined with the testimony of the police and other witnesses, the evidence sufficiently corroborates the essential facts of Defendant's alleged confession, indicates that Defendant had the opportunity to commit the crime, and lends itself to establish the trustworthiness of Defendant's confession. See State v. Trexler, 316 N.C. 528, 533-35, 342 S.E.2d 878, 881-82 (motion to dismiss properly denied where defendant's admission was corroborated by evidence aliunde the admission).

We hold that the State satisfied the corpus delicti rule and presented sufficient evidence to sustain Defendant's conviction. The trial court did not err in denying Defendant's motion to dismiss.

II. Rebuttal Evidence Testimony of Detective Hoppes

Defendant argues next that the trial court erred by admitting the testimony of Detective Hoppes as rebuttal evidence, where the testimony was about a collateral matter. At trial, Defendant objected to the testimony of Detective Hoppes on the grounds of "lack of foundation and officer hearsay," claiming that if Detective Hoppes was allowed to testify, it would be "unduly prejudicial to . . . [D]efendant." Detective Hoppes testified on voir dire because Defendant wanted to "explore the foundation" of Detective Hoppes' testimony. Defendant reasoned that Detective Hoppes' testimony was based on hearsay from Ms. Nanny and Detective Turner. The transcript does not reflect that Defendant argued to the trial court that Detective Hoppes' testimony would be improper because it was based on a collateral matter. The State argued that Detective Hoppes' testimony was a prior consistent statement with Detective Turner's testimony, indicating only that Detective Turner conferred with Detective Hoppes about the sequence of events upon returning to their vehicle. The State asserted that the testimony was being offered to "establish credibility" because Defendant had "challenged the veracity of [Detective Turner]." Detective Hoppes did not testify to any information obtained from speaking with Ms. Nanny.

N.C.R. App. P. 10(a)(1) states that "[i]n 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." N.C.R. App. P. 10(a)(1) (2011). "'When the error asserted on appeal is not grounded in the objection before the trial court the alleged error is not preserved for appellate review.'" State v. Goode, 197 N.C. App. 543, 552, 677 S.E.2d 507, 514 (2009) (citation omitted), appeal dismissed, disc. review denied, 363 N.C. 746, 689 S.E.2d 140 (2009). The transcript does not reflect that Defendant objected to Detective Hoppes' testimony on the basis that the testimony was based on a collateral matter. Therefore, Defendant has failed to preserve this issue for appellate review. Id.

Assuming, arguendo, that Defendant had preserved this issue, and that the admission of Detective Hoppes' testimony constituted error, "[i]t is well settled that the burden is on the appellant not only to show error but to show that the error was prejudicial. An error is prejudicial if it is shown that there is a reasonable possibility that had the error not been committed a different result would have been reached at trial." State v. Murphy, 100 N.C. App. 33, 41, 394 S.E.2d 300, 305 (1990) (citations omitted); see also N.C. Gen. Stat. § 15A-1443(a) (2009).

In addition to Detective Hoppes' testimony, the State presented considerable circumstantial evidence tending to confirm Defendant's original confession, bolster the trustworthiness of that confession, and show that Defendant had opportunity to commit the crime. The State presented testimony from Detective Turner regarding Defendant's statements and testimony from Mr. Myrick and Ms. Wall regarding the attempted purchases at Myrick's. Also, Defendant's own testimony indicates that he found a debit card at Wal-Mart near the same place Ms. Ezell lost her debit card, and that Defendant returned it to Customer Service at Wal-Mart. Even without the testimony of Detective Hoppes, Defendant has not shown that there existed "a reasonable possibility that had the error not been committed a different result would have been reached at trial." Murphy, 100 N.C. App. at 41, 394 S.E.2d at 305 (citation omitted). Assuming arguendo it was error to admit Detective Hoppes' testimony, Defendant fails in his burden of proving prejudice.

III. Jury Instruction

Defendant's last argument is that "the trial court committed reversible and plain error by failing to properly instruct the jury on each element of obtaining property by false pretense[s]" for each of the offenses. We disagree.

Defendant made no objection to the jury instruction at trial. N.C.R. App. P. 10(a)(4) states that:

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.

N.C.R. App. P. 10(a)(4) (2011). To rise to the level of plain error, our Court must find that:

"the claimed error is a 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or '[that the error] is grave error which amounts to a denial of a fundamental right of the accused . . . or [that] it can be fairly said 'the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.'"

State v. Bowen, 139 N.C. App. 18, 23, 533 S.E.2d 248, 251-52 (2000) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). "'In deciding whether a defect in the jury instruction constitutes "plain error," the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.'" State v. Hunt, 192 N.C. App. 268, 270, 664 S.E.2d 662, 664 (2008), disc. review denied, 363 N.C. 133, 673 S.E.2d 868 (2009) (citations omitted).

Defendant contends that "the trial court, effectively, only instructed the jury on one charge" because the trial court did not clearly explain the elements and specifics of each offense separately nor did the verdict sheets. We disagree.

The trial court held a jury charge conference, conferring with both attorneys regarding the jury instructions. During the jury charge conference, Defendant made no objection to the instructions for obtaining or attempting to obtain property by false pretenses as presented. The trial court instructed the jury as follows:

[D]efendant has been charged with obtaining property by false pretenses. I'm going to go over the elements of that crime in just a moment. But I want to be real clear, you will have two verdict sheets. And one talks about whether the State has proven to you beyond a reasonable doubt, first in one case, that the defendant attempted to obtain property by false pretenses. The other verdict sheet talks about whether the State has proven beyond a reasonable doubt that [] [D]efendant did obtain property by false pretenses.
Under our law whether you actually obtain property by false pretenses or just attempt to, you still committed the same crime. So that's why this instruction is going to read the way it does. I'm not trying to be confusing. I just want you to understand that when I say in this instruction that the State has to prove that [] [D]efendant did obtain or attempted to obtain, I'm really talking about the same crime.
[] [D]efendant has been charged with obtaining property by false pretenses. For you to find [] [D]efendant guilty of this
offense the State must prove five things beyond a reasonable doubt.
First, that [] [D]efendant made a representation to another.
Second, that this representation was false.
Third, that this representation was calculated and intended to deceive.
Fourth, that the victim was, in fact, deceived by this representation.
And fifth, that [] [D]efendant thereby obtained or attempted to obtain property from the victim.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date [] [D]efendant made a representation and that this representation was false and that this representation was calculated and intended to deceive, that the victim was, in fact, deceived by it, and that [] [D]efendant thereby obtained or attempted to obtain property from the victim, it would be your duty to return a verdict of guilty.
If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

The jury instructions continued and included the following:

So we have the two charges and the two verdict sheets. One talks about whether [] [D]efendant is guilty of attempt to obtain property by false pretenses or not guilty. The second one talks about guilty of obtaining property by false pretenses or not guilty. Of course, the State has to prove
each of those cases, every element, beyond a reasonable doubt. (Emphasis added).

Defendant did not object to the jury instructions nor to the form of the verdict sheets.

Defendant cites State v. Evans, 162 N.C. App. 540, 591 S.E.2d 564 (2004), where the defendant complained that the trial court erred by instructing the jury on the elements of each offense as it pertained to one particular date, though the offenses occurred on different dates. Our Court held that "[a]ssuming arguendo that the trial court's failure to specifically instruct the jury as to the elements of each offense on each date of the alleged offenses was error, it was not plain error[,]" because the trial court "took care to instruct the jury that the charge for each individual count of a particular offense was identical, and that the same law applies for each charge." Id. at 544, 591 S.E.2d at 566. Evans is applicable to the facts before us, but does not support Defendant's argument.

Also applicable is State v. Wiggins, 161 N.C. App. 583, 589 S.E.2d 402 (2003). In Wiggins, the defendant asserted that "the trial court's failure to specifically differentiate each individual charge in its jury instructions and on the verdict sheet deprived him of a unanimous verdict." Id. at 592, 589 S.E.2d at 408. In Wiggins, our Court stated that verdict sheets do not require the same level of specificity as an indictment. Id. at 592, 589 S.E.2d at 409 (citation omitted). "A verdict is deemed sufficient if it 'can be properly understood by reference to the indictment, evidence and jury instructions.'" Id. "Normally, where the defendant appeals based on the content of

the verdict sheet but failed to object when the verdict sheet was submitted to the jury, any error will not be considered prejudicial unless the error is fundamental." Id. Our Court in Wiggins held that

[s]ince verdict sheets do not need to match the specificity of indictments, and the indictments in this case, which distinguished the offenses charged by their names and case numbers without pointing to any specific encounter . . . were proper, the verdict sheets did not lack the required degree of specificity needed for a unanimous verdict if they could be properly understood by the jury based on the evidence presented at trial.

Id. at 593, 589 S.E.2d at 409 (citations omitted). The Wiggins Court found that, since there were only two charges and the victim only testified to two incidents, there was no possibility that the jury's verdicts were not unanimous for each offense. Id. at 593, 589 S.E.2d at 409.

In the present case, the trial court instructed the jury on the elements of attempting to obtain and obtaining property by false pretenses. The trial court indicated to the jury that attempting to obtain and obtaining property by false pretenses constitute the same crime and contain the same elements. See N.C. Gen. Stat. §14-100 (2009). "I just want you to understand that when I say in this instruction that the State has to prove that the [D]efendant did obtain or attempted to obtain, I'm really talking about the same crime." As in Evans, the trial court in the present case was careful to make clear to the jury that there were two charges and two verdict sheets, both requiring "the State . . . to prove . . . every element, beyond a reasonable doubt." Also, as in Wiggins, there was no need or requirement for the verdict sheets to include more explicit information about the charges. There was no probability, based on the evidence presented at trial and the instructions given, that any instructional error impacted the jury's finding of guilt. Hunt, 192 N.C. App. at 270, 664 S.E.2d at 664. As in Evans, assuming arguendo that the trial court did err in its instructions, any error does not rise to the level of plain error. Defendant's argument is without merit.

No prejudicial error.

Judges STROUD and BEASLEY concur.

Report per Rule 30(e).