Filed February 19, 2008.
Wake County No. 04 CRS 10672.
Appeal by defendant from judgment entered 21 September 2006 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 21 January 2008.
Attorney General Roy Cooper, by Special Deputy Attorney General Grady L. Balentine, Jr., for the State. McCotter, Ashton Smith, P.A., by Rudolph A. Ashton, III, and Charles K. McCotter, Jr., for defendant-appellant.
Defendant Latawinia Figinia Anderson appeals from her conviction of attempting to obtain property by false pretenses. She primarily argues on appeal that the indictment failed to properly charge a false pretense and that, in any event, there was a fatal variance between the allegations of the indictment and the evidence. The indictment's allegations that defendant presented a check to Food Lion knowing that she was not entitled to its proceeds were, however, sufficient. Further, the evidence presented at trial was consistent with the material allegations of the indictment. Since we find defendant's arguments on appeal unpersuasive, we hold that defendant received a fair trial, free of prejudicial error.
The State's evidence tended to show the following facts. On 18 January 2004, a woman subsequently identified as defendant walked into a Food Lion grocery store in Holly Springs, N.C. carrying a dog. She approached the store's office assistant and said that she needed a check cashed and a carton of cigarettes. Defendant handed the office assistant a $300.00 check that appeared to be written on the account of "Apex Accounting," was made payable to "Angel Hicks," and had a somewhat illegible signature that looked like "Ssaljahern" or "Sally Ahern."
The office assistant gave the check to the store's customer service manager, and the manager asked defendant for a driver's license. Defendant handed a license to the manager, who copied the license number onto the check. When the manager returned the license, she told defendant that the license had been defaced, and she was going to call Apex Accounting. Defendant responded that she would just take the check to the bank, but the manager insisted on calling the purported payor on the check. When the manager went to make the call, defendant told the office assistant that she was going to take her dog to her car. The assistant saw defendant exit the store and drive away in a white car. The customer service manager retained the check and called law enforcement. Subsequently, various Food Lion employees picked defendant out of a photo lineup as the person who attempted to cash the check. The owner of Apex Accounting, John Christenberry, testified that the check presented by defendant was not one of his company's checks. The checks were different colors, had different lettering, and identified a bank other than the one with which his company had an account. In addition, only Mr. Christenberry signed Apex Accounting checks. He did not know a person by the name of Angel Hicks and did not know of any reason why a check would have been issued to a person by that name.
On 4 May 2004, defendant was indicted for attempting to obtain property by false pretense. At trial, defendant presented evidence showing that her fingerprints were not found on the check presented to the Food Lion. In addition, one of defendant's friends testified that defendant was house-sitting at her apartment in North Raleigh and that defendant had no means of transportation on the day of the alleged crime.
The jury found defendant guilty of attempting to obtain property by false pretense. Defendant, however, failed to return to court for the verdict or for sentencing. The court entered an order for defendant's arrest, and the State took a dismissal with leave on 21 December 2005. After defendant was arrested on a separate matter, the State filed a notice of reinstatement on 17 August 2006. The trial court then entered a presumptive range sentence of 10 to 12 months to run concurrent with a sentence that defendant was already serving. Defendant timely appealed.
Sufficiency of Indictment
Defendant first contends that the indictment was fatally defective. An indictment must charge each of the essential elements of the charged offense. State v. Ledwell, 171 N.C. App. 314, 317, 614 S.E.2d 562, 565 (2005). Specifically:
[A]n indictment must contain, "[a] plain and concise, factual statement in each count which . . . asserts, facts supporting every element of a criminal offense, and the defendant's commission thereof with sufficient, precision clearly to apprise the defendant or, defendants of the conduct which is the subject of the, accusation."
Id. (quoting N.C. Gen. Stat. § 15A-924(a)(5) (2003)). When the indictment charges a statutory offense, it "is sufficient, as a general rule, when it charges the offense in the language of the statute." State v. Penley, 277 N.C. 704, 707, 178 S.E.2d 490, 492 (1971).
N.C. Gen. Stat. § 14-100(a) (2005), the offense with which defendant was charged, states:
If any person shall knowingly and designedly by means, of any kind of false pretense whatsoever, whether the, false pretense is of a past or subsisting fact or of a, future fulfillment or event, obtain or attempt to, obtain from any person within this State any money, goods, property, services, chose in action, or other, thing of value with intent to cheat or defraud any, person of such money, goods, property, services, chose, in action or other thing of value, such person shall, be guilty of a felony. . . .
This Court has held that the elements of the crime set forth in § 14-100 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. Childers, 80 N.C. App. 236, 242, 341 S.E.2d 760, 764 (quoting State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980)), disc. review denied, 317 N.C. 337, 346 S.E.2d 142 (1986).
Defendant argues that the indictment in this case failed to properly allege a false pretense or false representation. The indictment states:
The jurors for the State upon their oath present that, on or about January 18, 2004, in Wake County the, defendant named above unlawfully, willfully and, feloniously did knowingly and designedly with the, intent to cheat and defraud, obtain and attempt to, obtain United States currency having a value of $300.00, (three hundred) from Del Haize Incorporated DBA Food, Lion by means of a false pretense which was calculated, to deceive and did deceive.
The false pretense consisted of the following: The, defendant presented a check on a Central Carolina Bank, Trust bank account belonging to Apex Accounting, made payable to Angel Hicks, to another, Food Lion, to, receive cash back knowing that she was not entitled to, this money. This act was done in violation of, N.C.G.S. 14-100.
Defendant argues that these allegations are insufficient because this indictment does not allege that the check she presented was "worthless, false, or otherwise invalid."
Such an allegation was unnecessary. The second paragraph of the indictment states that defendant presented a check payable to someone other than herself to Food Lion in order to "receive cash back" and that she did so "knowing that she was not entitled to this money." The false representation and pretense is defendant's implied representation to Food Lion that she was a proper payee and entitled to receive money from the cashing of the check. The language of the indictment tracks N.C. Gen. Stat. § 14-100(a) and expressly identifies the false pretense "with sufficient precision clearly to apprise the defendant . . . of the conduct which is the subject of the accusation." N.C. Gen. Stat., § 15A-924(a)(5). Therefore, this assignment of error is overruled.
Motion to Dismiss
Defendant next argues that the trial court erred when it denied defendant's motion to dismiss. "`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. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." Id. at 597, 573 S.E.2d at 869. On review of a denial of a motion to dismiss, this Court must "examine the evidence in the light most advantageous to the State, drawing all reasonable inferences from the evidence in favor of the State's case." State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781, cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403, 123 S. Ct. 495 (2002). Defendant first asserts that there was a fatal inconsistency between the indictment and the evidence presented at trial. Defendant points to the fact that the indictment alleged that the check belonged to Apex Accounting, but the trial evidence established that the check did not belong to Apex Accounting. As this Court explained in State v. Qualls, 130 N.C. App. 1, 8, 502 S.E.2d 31, 36 (1998) (internal quotation marks omitted), aff'd per curiam, 350 N.C. 56, 510 S.E.2d 376 (1999), "[a]lthough the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense, a variance which is not essential is not fatal to the charged offense." Thus, "`[a]llegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage.'" State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996) (quoting State v., Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972)).
In this case, the indictment alleges that defendant attempted to cash a check made payable to a person named "Angel Hicks" knowing that she was not entitled to the money. Whether the check actually "belonged" to Apex Accounting was not necessary to prove the offense. The allegation is thus surplusage and no fatal variance occurred.
Defendant next argues that the State failed to prove that she made a false representation because there was no evidence that the check was not a valid check. Whether or not the check was valid is immaterial since the State presented evidence that defendant was, regardless of the check's validity, not entitled to the proceeds of the check. As our Supreme Court explained in 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, 122 S. Ct. 2332 (2002), "the false pretense need not come through spoken words, but instead may be by act or conduct." The Court noted that the statutory language defining the offense was expansive, encompassing "`any kind of false pretense whatsoever.'" Id. (emphasis omitted) (quoting N.C. Gen. Stat. § 14-100(a) (1999)). Here, the evidence shows that defendant, in an attempt to obtain cash and payment for merchandise, presented an unendorsed check made payable to another person. Defendant used a defaced driver's license as identification. When store personnel insisted upon calling the supposed payor of the check for verification, defendant exited the store and drove away. We conclude that this evidence is sufficient to permit a jury to find that defendant, through this conduct, made a false representation. See id. at 285, 553 S.E.2d at 897-98 (holding "defendant's actions constituted a false pretense" where defendant drove to bank teller window and, while holding victim hostage in passenger seat, presented victim's driver's license and withdrawal slip to teller in order to obtain cash; Court concluded that "[d]efendant falsely represented to the bank that the withdrawal was legitimate and had the continuing support of the victim"); State v. Perkins, 181 N.C. App. 209, 216, 638 S.E.2d 591, 596 (holding that when defendant used a credit card that did not belong to her to make purchases at Food Lion, "jury could reasonably infer that defendant, through her actions, falsely represented to Food Lion her authority to use [the] credit cards and that her intent was to deceive Food Lion"), disc. review denied, 361 N.C. 222, 642 S.E.2d 708 (2007).
Defendant argues that the State failed to prove that her representation was calculated and intended to deceive the victim. As we stated in State v., Page, 32 N.C. App. 478, 481, 232 S.E.2d 460, 462, disc. review denied, 292 N.C. 643, 235 S.E.2d 64 (1977), however, "[a]ny attempt to obtain property by false pretense necessarily is done with intent to deceive."
Finally, defendant argues that the State failed to prove that the victim was in fact deceived. Defendant acknowledges this Court has held that when, as here, the charged offense is the attempt to obtain property by false pretenses, it is not necessary to prove actual deception. State v., Wilburn, 57 N.C. App. 40, 46, 290 S.E.2d 782, 786 (1982) ("`It is not necessary, in order to establish an intent [sic], that the [victim] should have been deceived, or should have relied on the false pretenses and have parted with his property. . . .'" (quoting 35 C.J.S. False Pretenses § 36 (1960))). Indeed, if defendant had actually deceived the manager at Food Lion, then she would have been successful in obtaining the property, and the appropriate charge would not have been "attempt." We, therefore, conclude that the trial court properly denied defendant's motion to dismiss.
Defendant also assigned plain error to the trial court's failure to instruct the jury that it was required to find actual deception, but recognizes that this argument need not be reached if the Court concludes, as we have, that actual deception is not an element of the charge of attempt to obtain property by false pretenses.
Chief Judge MARTIN and Judge TYSON concur.
Report per Rule 30(e).