NO. COA02-639
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).
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