STATE OF NORTH CAROLINA
v. Wilson County
Nos. 99 CRS 55069,
DAVID TYRONE PERRY 55074
Attorney General Roy Cooper, by Assistant Attorney General
Mary Penny Thompson, for the State.
Angela H. Brown for defendant-appellant.
EAGLES, Chief Judge.
David Tyrone Perry (“defendant”) appeals from judgments
entered on the jury verdicts finding him guilty of obtaining
property by false pretenses and attempting to obtain property by
false pretenses. After careful consideration of the briefs and
record, we discern no error.
The State's evidence tended to show that on 26 May 1999,
defendant cashed a check in the amount of $1,400.15 at Centura Bank
in Wilson, North Carolina. This check listed Visions, Incorporated
as the drawer and David Perry as the payee. The check subsequently
“came back” to the bank. Defendant was not an employee of Visions,
Inc. In addition, all Visions, Inc. paychecks were blue while thecheck cashed by defendant on 26 May 1999 was pink. Defendant
returned to the bank on 30 June 1999 and attempted to cash a second
check which listed Saturn Electronics and Engineering, Incorporated
as the drawer. However, the bank's service leader, Sharon Rouse,
remembered defendant from the previous transaction on 26 May 1999.
Rouse did not cash the Saturn check for defendant. Significantly,
the check presented by defendant for cashing was different in color
from all other Saturn checks and it lacked the Saturn logo that was
present on every Saturn check. A bank employee called the police.
Officer Phillip Flood, of the Wilson Police Department,
responded to the call for assistance. After Rouse explained to him
the circumstances, Officer Flood approached defendant and asked him
if he would come down to the police station and speak with a
detective about the matter. Defendant was cooperative but became
extremely nervous and agitated -- sweating profusely and his heart
visibly pounding through his shirt. Detective J.B. Gibson of the
Wilson Police Department questioned defendant at the police
station. Defendant stated that he had received the checks in the
mail and assumed that they were payment for his services stuffing
envelopes for a mail order company. Defendant was charged with two
counts of obtaining property by false pretenses and one count of
attempting to obtain property by false pretenses.
Upon defendant's motion to dismiss at the close of the State's
evidence, the trial court dismissed one count of obtaining property
by false pretenses. Defendant then presented evidence which tended
to show that the checks he presented at the Centura Bank were sentto him in a plain white envelope, postmarked 28 May 1999. He was
unable to explain on cross-examination how he cashed one of those
checks two days before the postmark date. Defendant testified that
he did not know who sent the checks.
The trial court denied defendant's motion to dismiss the two
remaining charges at the close of all of the evidence. The jury
returned verdicts finding defendant guilty of the two charges. The
trial court entered judgment on those verdicts and sentenced
defendant to a 60-day active sentence, suspended defendant's two
consecutive 6-8 month sentences and placed him on supervised
probation for 36 months. Defendant appeals.
Defendant has not brought forth his first assignment of error.
Accordingly, it is abandoned. See N.C. R. App. P. 28(b)(6).
By his second assignment of error, defendant argues that the
trial court erred in denying his motion to dismiss at the close of
all the evidence based upon insufficient evidence. We disagree.
In ruling on a motion to dismiss, the trial court must
determine “'whether the evidence is legally sufficient to support
a verdict of guilty on the offense charged, thereby warranting
submission of the charge to the jury.'” State v. Walston, 140 N.C.
App. 327, 331, 536 S.E.2d 630, 633 (2000) (quoting State v. Thomas,
65 N.C. App. 539, 541, 309 S.E.2d 564, 566 (1983)). The motion is
properly denied if “there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of such offense.” State v. Serzan, 119 N.C. App. 557,
560, 459 S.E.2d 297, 300 (1995), cert. denied, 343 N.C. 127, 468S.E.2d 793 (1996). When considering a motion to dismiss, the trial
court should consider the evidence in the light most favorable to
the State, giving the State all of the reasonable inferences to be
drawn therefrom. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d
138, 141 (1998).
To obtain a conviction of obtaining (and/or attempting to
obtain) property by false pretenses the State must show that the
defendant made “'(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.
Hutchinson, 139 N.C. App. 132, 138, 532 S.E.2d 569, 573 (2000)
(quoting State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286
(1980)); see also G.S. § 14-100(a) (2001). The presentation of a
worthless check in exchange for property has been held to be a
sufficient misrepresentation to sustain a conviction for obtaining
property by false pretenses. State v. Rogers, 346 N.C. 262, 264,
485 S.E.2d 619, 621 (1997). Intent to deceive is a key element of
the offense, but a mental attitude is “'seldom provable by direct
evidence.'” Walston, 140 N.C. App. at 332, 536 S.E.2d at 633
(quoting State v. Compton, 90 N.C. App. 101, 104, 367 S.E.2d 353,
355 (1988)). The defendant's intent must usually be discerned from
the facts and attenuating circumstances. Id. at 332, 536 S.E.2d at
634. Finally, “[t]o show that a defendant committed the offense of
obtaining property by false pretenses, the State must prove that
there is a causal relationship between the alleged falserepresentation and the obtaining of money, property, or something
else of value.” Id. at 333, 536 S.E.2d at 634.
Here, defendant contends that the State failed to establish
(1) that he in fact made a false representation, (2) that he
possessed the requisite intent to deceive, and (3) that there was
a causal relationship between the false representation and the
defendant obtaining property. However, upon a thorough review of
the record, we conclude that the State established each element of
the offenses charged.
In the light most favorable to the State, the evidence tends
to show that defendant presented a check drawn on Visions, Inc. and
Saturn Electronics and Engineering, Inc. to a teller at Centura
Bank in Wilson. The bank teller cashed the Vision check and gave
defendant $1,400.15. The Visions check “came back” to the Wilson
bank. The bank refused to cash the Saturn Electronics check when
defendant came and attempted to cash the check. An employee of the
bank called the police and defendant was extremely nervous when
approached by the police about this matter. Although defendant
contends that he received the checks in the mail and thought them
to be payment for his services stuffing envelopes for a mail order
company, testimony by employees of Visions and Saturn Electronics
established that defendant had never been employed by either
company and that the checks he possessed were different from the
companies' respective pay checks. Moreover, defendant could not
explain how he cashed one of the checks days prior to its allegedreceipt in the mail. At trial, defendant was unable to tell the
court who sent him the checks.
On these facts, the State proved that defendant did
“knowingly and designedly by . . . false pretense . . . obtain or
attempt to obtain . . . money [from employees of Centura Bank] with
intent to cheat or defraud [the employees of the bank]” in
violation of G.S. § 14-100. See G.S. § 14-100(a) (2001).
Accordingly, this assignment of error is overruled.
By his third and final assignment of error, defendant argues
that the trial court erred in admitting State's Exhibit 1, the
check listing Visions, Inc. as the drawer and defendant as the
payee, in evidence with the words “counterfeit” marked on it.
Defendant contends that the admission violated the hearsay rule as
the out-of-court declarant who delineated the check as a
counterfeit did not testify. In the event that the evidence was
admissible, defendant further contends that the trial court “should
have given the jury a limiting instruction requiring that it
disregard the extraneous hearsay matter on the face of the check
from Visions, Inc.”
We note that the record reveals that while defendant did
initially object to the admission of the Visions, Inc. check into
evidence and that objection was sustained by the court, defendant
did not subsequently object when the State again proffered that
same check into evidence. This Court has just recently reiterated
that “[t]he benefit of an objection is lost when the same or
similar evidence is later admitted without objection.” State v.Holadia, 149 N.C. App. 248, 256, 561 S.E.2d 514, 520, writ denied
and disc. review denied, __ N.C. __, 562 S.E.2d 432 (2002).
Similarly, despite ample opportunity, defendant failed to object to
the court's jury charge or request additional or alternative
instructions prior to the jury retiring. Pursuant to N.C. R. App.
P. 10(b)(2), that argument is also waived. While N.C. R. App. P.
10(c)(4) permits plain error review in instances where a criminal
defendant assigns error to a trial court's evidentiary ruling or
jury instruction, Rule 10(c)(4) requires that the defendant
“specifically and distinctly” assert that the judicial action in
question amounted to plain error. See N.C. R. App. P. 10(c)(4).
Defendant has not done so here and therefore, this assignment is
summarily overruled.
We hold that defendant received a fair trial, free of
prejudicial error.
No error.
Judges McCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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