An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-639

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2003

STATE OF NORTH CAROLINA

         v.                        Catawba County
                                No. 01 CRS 10064
DALE THOMAS HARRIS
    

    Appeal by defendant from judgment entered 14 March 2002 by Judge Julius A. Rousseau in Catawba County Superior Court. Heard in the Court of Appeals 12 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Donna D. Smith, for the State.

    Winifred H. Dillon for defendant appellant.

    TIMMONS-GOODSON, Judge.

    Dale Thomas Harris (“defendant”) appeals from his conviction of obtaining property by false pretenses. For the reasons that follow, we uphold defendant's conviction.
    The State's evidence at trial tended to show the following: On 11 January 2001, defendant contacted Larry Spierer (“Spierer”), an employee of Regency Home Fashions (“Regency”), seeking to purchase merchandise from Regency's warehouse (“the warehouse”). Spierer met defendant and Dwight Patterson (“Patterson”) at the warehouse, where they negotiated a price for the merchandise. Patterson did not participate in the negotiations. After negotiating a “per piece” price, the merchandise was placed ontrucks supplied by defendant and transported away from the warehouse. Defendant continued to have his trucks loaded for several hours before agreeing on a final count of the merchandise with Spierer. The purchase amount came to a total of $22,814.60. Defendant paid Spierer $15,000.00 in cash and tendered a check for the remaining balance of $7,814.60. According to Spierer, he accepted defendant's check although the agreement was for defendant to pay in cash. Spierer testified that he did not decline defendant's check, because “the merchandise had already left the warehouse.” The following day, Spierer arrived at his office and retrieved a voice mail message from defendant. Defendant's message instructed Spierer not to “cash that check” and that defendant would give Spierer the money for the check in three days. Spierer did not “cash” the check as requested by defendant; however, defendant failed to present Spierer with funds to replace the check within three days. Therefore, Spierer presented defendant's check to the bank and the bank in turn rejected the check for insufficient funds. Defendant then tendered two checks to Spierer totaling $3,000.00 accompanied by notes promising full payment by 1 May 2001 and 1 July 2001. Defendant failed to pay the $7,814.60 balance owed to Spierer.
    On 14 March 2002, a jury found defendant guilty of obtaining property under false pretense, for which the trial court sentenced defendant to a minimum of eight months' and a maximum of ten months' imprisonment. Defendant's sentence was suspended and he received supervised probation for thirty-six months. Defendantappeals.

____________________________

    Defendant argues that the trial court erred in (1) denying his motion to dismiss for insufficient evidence, and (2) expressing in the charge to the jury that the element of false representation had been conclusively established. For the reasons stated herein, we find no error.
    By his first assignment of error, defendant argues that his motion to dismiss was improperly denied. Specifically, defendant contends that there was insufficient evidence to establish the element of intent to deceive. We disagree.
    In reviewing the court's ruling, we must determine whether the evidence taken in the light most favorable to the State is sufficient to support a finding of defendant's guilt on each essential element of the offense beyond a reasonable doubt. See State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287, 289 (1993). The crime of obtaining property by false pretenses under North Carolina General Statutes section 14-100(a), consists of four elements: “'(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 N.C. Gen. Stat. § 14-100(a) (2001). Our Supreme Court has previously concluded that “the writing and passing of a worthless check in exchange for property, standing alone, issufficient to uphold a conviction for obtaining property under false pretenses.” State v. Rogers, 346 N.C. 262, 263, 485 S.E.2d 619, 620 (1997).
    In the instant case, the trial court properly denied defendant's motion to dismiss. The State adduced substantial evidence that defendant wrote a worthless check to Spierer after 8:00 p.m. on Thursday, purporting to pay for merchandise he was taking from the warehouse. Some time before 7:30 Friday morning, defendant left a phone message instructing Spierer not to deposit the check and promising to bring money to Spierer on Monday. However, defendant failed to tender any money to Spierer as promised and the bank rejected defendant's check for insufficient funds. A jury could reasonably infer that defendant intended to deceive Spierer when he presented him with a check which was of no value and that defendant obtained value from Spierer when he tendered the check to him.
    Defendant further asserts that there is a variance between the allegations in the indictment and the proof offered at trial. The indictment charged that defendant “knew . . . the check would be worthless” and “intended to stop payment on [the check].” Defendant contends that the State failed to show that he “stopped payment” on the check or intended to stop payment. As established by Rogers, however, defendant's knowledge that the check was worthless when written was sufficient to support his conviction under North Carolina General Statutes section 14-100(a). The additional allegation that he intended to stop payment on the checkwas properly “disregarded as surplusage.” See State v. Birdsong, 325 N.C. 418, 422, 384 S.E.2d 5, 7 (1989). Moreover, “[d]efendant waived his right to raise this issue by failing to raise the issue at trial.” State v. Baldwin, 117 N.C. App. 713, 717, 453 S.E.2d 193, 195 (1995); N.C.R. App. P. 10(b)(1) (2001).    
    In his final assignment of error, defendant argues that the trial court improperly instructed the jury that certain essential elements of the offense had been established by the State and therefore violated North Carolina General Statutes section 15A- 1232. Defendant acknowledges that he failed to object to the jury instruction at trial, see N.C.R. App. P. 10(b)(2) (2001), but cites precedent allowing appellate review of this error even absent a timely objection. See State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989) (“A defendant's failure to object to alleged expressions of opinion by the trial court in violation of [N.C. Gen. Stat. § 15A-1232] does not preclude his raising the issue on appeal.”).
    Defendant cites the following portion of the jury charge as an expression of judicial opinion:
        . . . [D]efendant has been accused of obtaining property by false pretenses. Now, for you to find the defendant guilty of that offense, the State . . . must prove five things beyond a reasonable doubt:
            First, that the defendant made a representation to another. Passing a check is a representation. A representation can be word-of-mouth or can be a nod of the head. He made a representation by passing a check.
            Second, that this representation was false. That is, that once the check was deposited, it did not clear. . . .
(emphasis added). According to defendant, “the trial court's instruction can only be understood as a directive to the jury to find that the [S]tate had proved it's [sic] case on the first two essential elements, that the [d]efendant made a representation and that the representation was false.” We disagree.     
    “In instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved[.]” N.C. Gen. Stat. § 15A-1232 (2001). When the trial court offers an opinion on the strength of the State's evidence, the court improperly “invad[es] the fact-finding province of the jury.” State v. Blue, 356 N.C. 79, 89, 565 S.E.2d 133, 140 (2002). However, in determining whether the court has expressed an opinion the jury charge “must be read as a whole” and “construed contextually.” State v. Rich, 351 N.C. 386, 393-94, 527 S.E.2d 299, 303 (2000). The jury charge should not be “'detached from the context and the incidents of the trial and then critically examined for an interpretation from which erroneous expressions may be inferred.'” State v. Chandler, 342 N.C. 742, 752, 467 S.E.2d 636, 641 (quoting State v. McWilliams, 277 N.C. 680, 685, 178 S.E.2d 476, 479 (1971)), cert. denied, 519 U.S. 875, 136 L. Ed. 2d 133 (1996). A court's articulation of the State's contentions does not amount to “an expression of judicial opinion” that the contentions are true. State v. Tucker, 329 N.C. 709, 723, 407 S.E.2d 805, 813 (1991).     Having carefully reviewed the charge in its entirety, we conclude that the trial court did not offer an opinion to the jury as to the existence of evidence. By instructing the jury that (1)“[p]assing a check is a representation,” and (2) passing a check that does not clear is a false representation, the court did not opine either that defendant had, in fact, passed a check or that the check did not clear. Rather, the court merely explained the legal significance of the acts alleged by the State. See Nunn v. Smith, 270 N.C. 374, 379, 154 S.E.2d 497, 501 (1967) (holding that the drawing and delivery of a check to a third person, without more, is a representation that drawer has funds sufficient to insure payment upon presentation). A trial court may tailor its jury instructions to the evidence adduced at trial and to the specific allegations raised against the defendant. See State v. Robinson, 40 N.C. App. 514, 520, 253 S.E.2d 311, 312 (1979).
    Viewed in isolation, the court's statement, “He made a representation by passing a check[,]” could be construed as an affirmation of fact. Read contextually, however, this statement is identified by the court as one of the “five things” that the State had to “prove beyond a reasonable doubt” in order to carry its burden. Moreover, immediately after setting forth the elements of the offense, the court issued the following instruction:
            . . . When you retire to make up your verdict, it is your duty to consider all the evidence . . . . [Y]ou should take whatever can be determined by your own recollection of the evidence and not anything I may have said or the lawyers. For, again, you are the sole judges of what the facts are in this case.

            So, . . . if you find from the evidence beyond a reasonable doubt that . . . defendant made a representation, that is passed a check, and this representation was false, that is it did not clear, and that the check was calculated and intended to deceive and thatRegency Home Fashion was in fact deceived by it and the defendant thereby obtained property from Regency Home Fashion, it would be your duty to return a verdict of guilty as charged. However, 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.

This additional instruction cured any potential ambiguity in the jury charge. See State v. Basden, 339 N.C. 288, 302, 451 S.E.2d 238, 245 (1994).
    For the reasons contained herein, we hold that the trial court did not err.
    No error.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).
    

*** Converted from WordPerfect ***