STATE OF NORTH CAROLINA
v
.
JAMES ARMSTEAD
Michael F. Easley, Attorney General, by Assistant Attorney
General Gaines M. Weaver, for the State.
Dennis M. Kilcoyne for defendant-appellant.
THOMAS, Judge.
Defendant, James Armstead, was found guilty in a jury trial of
obtaining property by false pretenses. On appeal, he contends the
trial court should have allowed his motion to dismiss since the
State failed to prove all that it alleged in the indictment. We
disagree and find no error.
Larry Weston's (Weston) car was broken into and his wife's
purse was stolen while they were dining at a restaurant in
Greenville in February of 2000. Inside the purse were checks from
their personal and business banking accounts. Thereafter, some of
the checks were written and negotiated without the authorization of
Weston or his wife.
Later that month, a police pursuit of defendant's vehicle
began at a Food Lion store in Washington and ended at a second FoodLion store where defendant wrecked his vehicle. The pursuit began
when defendant attempted to cash a forged check at the first
grocery store. Washington Police Department Detective William Bell
(Bell) searched defendant's car and found torn deposit slips and
checks which had been stolen from Weston during the February break-
in.
Lisa Harris (Harris), a cashier, testified that while she was
working at the first Food Lion earlier on the day of the car chase,
defendant handed her a check with initials that Harris did not
recognize. According to Harris, defendant stated, “This check has
already been pre-approved.” Harris said she was not actually
deceived since her manager never pre-approved checks. Harris
immediately called for assistance and Cindy Dobbins (Dobbins), an
assistant manager, responded. After Dobbins took the check to the
manager's office, she saw defendant leave through the front door.
Dobbins followed him and wrote down his license plate number.
Dobbins also testified that she was not deceived by defendant.
At the conclusion of the State's evidence, defendant made a
motion to dismiss the charge of obtaining property by false
pretenses based on the fact that defendant did not succeed in his
attempt at deception. The motion was denied. A motion to dismiss
was again made by defendant at the close of all evidence. As
before, it was denied. Defendant was later found guilty and
sentenced to fifteen to eighteen months in prison.
Defendant acknowledges the holding in State v. Wilburn, 57
N.C. App. 40, 290 S.E.2d 782 (1982), that actual deception of avictim is not a necessary element of the crime of obtaining
property by false pretenses. However, he contends in his sole
assignment of error that because the indictment charged that
defendant did “obtain and attempt to obtain” property by means of
a false pretense which was “calculated to deceive and did deceive,”
the State must establish: (1) that defendant actually obtained
property in addition to attempting to obtain it; and (2) the
property was obtained by actual deception. Defendant argues that
the State proved neither, and his conviction constitutes error. We
disagree.
The indictment in the present case reads:
The jurors for the State upon their oath
present that on or about the date of offense
shown and in the county named above the
defendant named above unlawfully, willfully
and feloniously did knowingly and designedly
intent [sic] to cheat and defraud obtain and
attempt to obtain assorted merchandise and
U.S. Currency from Food Lion, Inc. by means of
a false pretense which was calculated to
deceive and did deceive. The false pretense
consisted of the following: The defendant
represented that he was Larry Brown for the
purposes of cashing a check when in fact he
was not Larry Brown.
(Emphasis added). N.C. Gen. Stat. § 15A-924(a)(5) requires that
every bill of indictment must contain:
A plain and concise factual statement in each
count which, without allegations of an
evidentiary nature, 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.
N.C. Gen. Stat. § 15A-924(a)(5) (1999). N.C. Gen. Stat. § 14-100provides:
If any person shall knowingly and designedly
by means of any kind of false pretense. . .
obtain[s] or attempt[s] to obtain from any
person [or corporation or organization] . . .
any . . . thing of value . . . such person
shall be guilty of a felony . . . it shall not
be necessary to prove either an intent to
defraud any particular person or that the
person to whom the false pretense was made was
the person defrauded, but it shall be
sufficient to allege and prove that the party
accused made the false pretense charged with
an intent to defraud.
N.C. Gen. Stat. § 14-100(a) & (c) (1999).
To be effective, an indictment charging a defendant with
violating section 14-100 must allege that defendant “obtained or
attempted to obtain” something, since it is an essential element of
the offense. State v. Hadlock, 34 N.C. App. 226, 228, 237 S.E.2d
748, 749 (1977) (arresting judgment of trial court where indictment
failed to allege this element). Here, the indictment stated that
defendant did “obtain and attempt to obtain.” In fact, our Supreme
Court addressed this issue in State v. Swaney:
“Where a statute sets forth disjunctively
several means or ways by which the offense may
be committed, a warrant thereunder correctly
charges them conjunctively.” 4 Strong's N.C.
Index 2d, Indictment and Warrant § 9, p. 353;
State v. Chestnutt, 241 N.C. 401, 85 S.E.2d
297. The indictment should not charge a party
disjunctively or alternatively, in such a
manner as to leave it uncertain what is relied
on as the accusation against him. The proper
way is to connect the various allegations in
the indictment with the conjunctive term
“and,” and not with the word “or.”
Swaney, 277 N.C. 602, 611-612, 178 S.E.2d 399, 405 (1970), appeal
dismissed and cert. denied, 402 U.S. 1006, 29 L. Ed. 2d. 428(1971), overruled on other grounds by State v. Hurst, 320 N.C. 589,
594, 359 S.E.2d 776, 779 (1987). The indictment here, therefore,
correctly charged that defendant did “obtain and attempt to obtain”
property by means of a false pretense. In addition, an indictment
charging a completed offense is sufficient to support a conviction
for an attempt to commit the crime charged. N.C. Gen. Stat. § 15-
170 (1999).
An indictment charging an offense under section 14-100 must
also allege that defendant acted with an intent to defraud. See
State v. Moore, 38 N.C. App. 239, 241, 247 S.E.2d 670, 672, disc.
review denied, 295 N.C. 736, 248 S.E.2d 866 (1978). Here, the
indictment includes language that defendant pretended to be someone
else in order to cash a check he was not authorized to cash. It
alleges that he obtained and attempted to obtain the property “by
means of a false pretense which was calculated to deceive and did
deceive.” Thus, in addition to alleging that defendant acted with
an intent to deceive, the indictment charges defendant with
actually deceiving his victim. The language, “and did deceive,”
indicating actual deception of a victim, is surplusage and is not
fatal to the indictment. See State v. Westbrooks, 345 N.C. 43, 57,
478 S.E.2d 483, 492 (1996) (“Thus, the allegation of the indictment
that defendant acted in concert . . . is an allegation beyond the
essential elements of the crime charged and is, therefore,
surplusage.”); see also State v. Rogers, 30 N.C. App. 298, 303, 226
S.E.2d 829, 832 (holding additional allegation of a false promise
in an indictment charging violation of section 14-100 is surplusagesince it could be separated from the false representation), disc.
review denied, 290 N.C. 781, 229 S.E.2d 35 (1976).
The indictment asserts facts supporting the essential elements
that defendant feloniously attempted to obtain property with an
intent to defraud. Notice to defendant was complete and,
accordingly, we find no error.
NO ERROR.
JUDGES WYNN and WALKER concur.
*** Converted from WordPerfect ***