STATE OF NORTH CAROLINA
v. Pasquotank County
No. 00 CRS 2942
CHARLES ERVIN McGILBERRY
Attorney General Roy Cooper, by Assistant Attorney General M.
Lynne Weaver, for the State.
Paul Pooley for defendant-appellant.
McGEE, Judge.
Defendant was found guilty of obtaining property by false
pretenses and was sentenced within the mitigated range to
imprisonment for a minimum of seven months and a maximum of nine
months.
The State presented evidence at trial tending to show that at
approximately 9:30 a.m. on 11 July 2000, defendant entered the
electronics department of a K-Mart store in Elizabeth City, North
Carolina. Doris Wise, the electronics department manager, assisted
defendant with the selection of a video cassette recorder (VCR).
Defendant paid cash for the VCR, which was priced at $89.99, at Ms.
Wise's register. Defendant walked out of the store carrying his
purchase in a bag provided by Ms. Wise. Approximately five to ten minutes later, defendant returned to
the store. Carrying nothing in his hands, he walked past Ms. Wise.
Ms. Wise next saw defendant walking down the aisle and carrying a
VCR identical to the one he had just purchased and a bag.
Defendant approached and asked Ms. Wise for a refund. Ms. Wise
directed defendant to go to the service desk at the front of the
store to receive a refund. Meanwhile, Ms. Wise observed that a VCR
was missing from the bottom shelf. Ms. Wise was also aware that no
purchases had been made from the electronics department since the
time defendant made his purchase. As defendant walked to the
service desk, Ms. Wise alerted the service desk attendant as to
what she had observed. The service desk attendant asked defendant
to complete paperwork while she awaited the arrival of police.
Defendant did not present any evidence.
Defendant first contends the trial court erred by denying his
motion to dismiss. In deciding a motion to dismiss, a court must
determine whether there is substantial evidence (1) of each
essential element of the charged offense, and (2) that defendant
was the perpetrator. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d
114, 117 (1980). The court must view the evidence in the light
most favorable to the State, giving it the benefit of every
reasonable inference that may be drawn from the evidence. State v.
Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). In
evaluating the evidence, the trial court is to determine only
whether the evidence is sufficient to allow the jury to draw a
reasonable inference of the defendant's guilt of the crime charged. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982).
The offense of obtaining property by false pretenses is
defined in N.C. Gen. Stat. § 14-100(a) (1999) in pertinent part as
follows:
(a) 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 . . . or
other thing of value with intent to cheat or
defraud any person of such money, goods,
property . . . or other thing of value, such
person shall be guilty of a felony[.]
Defendant contends that the trial court should have granted his
motion because the evidence failed to show that anyone was actually
deceived by defendant into parting with any money, goods, property
or thing of value.
The statute makes it a crime to "obtain or attempt to obtain"
from any person money, goods or any thing of value by any kind of
false pretense. N.C. Gen. Stat. § 14-100(a). The offense is
therefore complete once the attempt is made to take the property of
another by the means of a false pretense, even when the victim is
not fooled or deceived. For example, in State v. Armstead, 149
N.C. App. 652, 562 S.E.2d 450 (2002), our Court held that the
offense was committed when a store cashier declined to believe the
defendant's claim that an initialed check had been "pre-approved."
We also held that language in the indictment that the false
pretense "did deceive" was mere surplusage. Id. Similarly, in
State v. Wilburn, 57 N.C. App. 40, 290 S.E.2d 782 (1982), thedefendant approached a store owner and offered to obtain for the
store owner merchandise normally valued at $40,000 for the sum of
only $17,450. The defendant directed the store owner to deliver
the money to a particular individual at a designated location. The
store owner became suspicious and contacted law enforcement
officers. An officer of the State Bureau of Investigation
accompanied the store owner to the designated delivery point. The
defendant refused to show the agent and the store owner the goods
without first receiving money. In affirming the defendant's
conviction of attempted taking of property by false pretenses, this
Court stated that it was not necessary to show the store owner was
actually deceived. This argument is overruled.
Defendant next contends that the trial court erred in
instructing the jury that it was not necessary for the victim to
actually be deceived. Defendant did not object to the trial
court's instructions and he has not assigned plain error to them.
In order to obtain appellate review of an alleged instructional
error, the defendant must specifically and distinctly contend by
assignment of error and argument in his brief that the alleged
instructional error amounted to plain error. See N.C.R. App. P.
10(c)(4); see also State v. Nobles, 350 N.C. 483, 514-15, 515
S.E.2d 885, 904 (1999); State v. Truesdale, 340 N.C. 229, 232-33,
456 S.E.2d 299, 301 (1995). This contention is therefore not
properly before this Court.
Defendant's remaining argument is that the trial court erred
by failing to submit to the jury the offense of attempted larceny. Defendant did not request the instruction and he did not object to
the instructions that were given by the trial court. He
acknowledges the lack of objection but argues an objection was not
necessary because of N.C. Gen. Stat. § 15A-1446(d)(13), which
states an instructional error may be asserted on appeal in the
absence of an objection. Alternatively, he contends the court
committed plain error.
In State v. Bennett, 308 N.C. 530, 302 S.E.2d 786 (1983), our
Supreme Court held that rules of practice and procedure adopted by
the Court supersede statutory provisions. Therefore, given the
lack of an objection, any review in this case is for plain error.
To establish plain error, the defendant must show that the error is
so fundamental that justice could not have been done. State v.
Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). This showing
has not been made in this case. The failure to submit an offense
to the jury is not error when there is no evidence from which the
jury may find commission of the offense. State v. Peacock, 313
N.C. 554, 558, 330 S.E.2d 190, 193 (1985).
The elements of larceny are that the defendant (1) took the
property of another, (2) carried it away, (3) without the other's
consent, and (4) with the intent permanently to deprive the owner
of the property. State v. Perry, 305 N.C. 225, 233, 287 S.E.2d
810, 815 (1982). One of the key elements of obtaining property by
false pretenses, which is not an element of larceny, is that an
intentionally false and deceptive representation was made. All of
the evidence in this case shows defendant attempted to obtainproperty, being a refund, by means of an intentionally false and
deceptive representation made by him. The trial court thus did not
err by not instructing the jury on attempted larceny.
For the foregoing reasons, we find no error.
No error.
Judges WYNN and CAMPBELL concur.
Report per Rule 30(e).
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