An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1645

NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2003

STATE OF NORTH CAROLINA
                            Cumberland County
v .                         Nos. 00 CRS 18681
                                00 CRS 18682    
CEDRIC DEJVAN RAYFORD,                00 CRS 18683
        Defendant.                

    Appeal by defendant from judgment entered 28 August 2002 by Judge Jack A. Thompson in Cumberland County Superior Court. Heard in the Court of Appeals 12 June 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State.

    Winifred H. Dillon, for defendant-appellant.

    GEER, Judge.

    Defendant Cedric Dejvan Rayford appeals his convictions for perjury, conspiracy to commit perjury, and obstruction of justice, arguing that the State failed to present sufficient evidence to support his convictions. Although defendant did not properly preserve this issue for appellate review, we exercise our discretion under Rule 2 of the Rules of Appellate Procedure to address this issue and hold that defendant's convictions are supported by substantial evidence.
    The State's evidence tended to show the following. Defendant is the owner and Chief Executive Officer of RCS Meganet, a computer business. DeLas Brunson worked for defendant in marketing and sales. At some point before 19 May 2000, Brunson moved intodefendant's home. At that time, Brunson was on pre-trial release and under electronic house arrest. As conditions of his release, he was not allowed to leave Cumberland County and was required to be home by 9:30 p.m.
    Brunson testified that on Friday, 12 May 2000, he told defendant that he needed to take his girlfriend to the Raleigh- Durham Airport. His girlfriend had been visiting from California for a week. Defendant had picked her up from the airport when she arrived and knew she would be flying back out on 12 May 2000. Defendant gave Brunson the keys to his car so that he could go to the airport. On Brunson's way back to Fayetteville, the car broke down twice. Brunson called another employee of defendant, who picked him up and drove him to Fayetteville. Brunson arrived back at 10:30 p.m. and explained to defendant that the car had broken down in Cary.
    On 12 May 2000, Brunson's pre-trial release supervisor, Shellie Redmon, learned from the duty officer that Brunson had not returned home by his curfew. Shortly after Redmon instructed the duty officer to draw up warrants for Brunson's arrest, the duty officer called to report that Brunson had returned home. Brunson told the duty officer that his car had broken down on Highway 53 in Cumberland County. The duty officer directed Brunson to remain at defendant's house until further notice and told him that he would need to provide a receipt documenting the towing of the car. Brunson then reported to defendant that he would need a receipt showing that the car was towed from Highway 53.    On 15 May 2000, defendant faxed a signed letter to the pre- trial release office, stating that Brunson "was stranded because of company vehicle" on 12 May 2000 from 8:30 p.m. until 10:30 p.m. On 19 May 2000, however, Redmon received an anonymous fax of a tow receipt from Bishop's Towing. Upon investigating the towing receipt, Redmon learned that defendant's car was towed on 14 May 2000 from a Pantry Store near Cary and that the car had been parked at the Pantry Store since 12 May 2000. In response to a letter from Redmon questioning Brunson's whereabouts on 12 May 2000, defendant assured her on 19 May 2000 that the events of 12 May 2000 were as he and Brunson had stated, that the fax had come from a disgruntled girlfriend, and that he would provide her with a towing receipt.
    James McGrady, the owner and operator of McGrady Motor Company, received a telephone call from defendant in which defendant asked whether McGrady knew "anybody that did towing that would maybe help out in the area of a receipt." McGrady suggested that defendant call Sansbury Recovery, but said, "As far as them writing a receipt, I can't say they'll write a receipt."
    Andre Sansbury testified that defendant asked him for a towing receipt for a vehicle that Sansbury had not towed. Sansbury called McGrady asking, "Is this guy okay? Is he cool?" Ultimately, at defendant's direction, Sansbury prepared a receipt in Brunson's name for 12 May 2000 at 9:30 p.m. in the amount of $65.00 for a tow from Highway 53 in Cumberland County. In return for the receipt, defendant paid him $20.00. On 19 May 2000, defendant delivered thereceipt to the pre-trial release office.
    At Brunson's bond hearing on 2 June 2000, defendant initially testified that he had allowed Brunson to use his car to go on a computer call for his company on the evening of 12 May 2000. He also testified that he provided a tow receipt to the pre-trial release office. Later, on cross-examination, defendant admitted that he did not send Brunson "directly" out on a job, but stressed again that he had provided to the pre-trial release office the Sansbury towing receipt reflecting Brunson's breakdown in Cumberland County.
    Defendant was indicted on 26 March 2001 for perjury, conspiracy to commit perjury, and obstruction of justice. Defendant was found guilty of all of the charges on 28 August 2002 and the trial court imposed a consolidated sentence of 13 to 16 months. Defendant filed notice of appeal on 3 September 2002.

I
    On appeal, defendant first argues the sufficiency of the evidence to support his convictions. He acknowledges that his trial counsel failed to move to dismiss the charges at trial. N.C.R. App. P. 10(b)(3) states that "[a] defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action . . . at trial." Although N.C. Gen. Stat. § 15A-1446(d)(5) (2001) allows a defendant to challenge the sufficiency of the evidence on appeal even when the defendant failed to move to dismiss the charges at trial, our courts have stated that Rule 10(b)(3) of theAppellate Rules controls. State v. Richardson, 341 N.C. 658, 677, 462 S.E.2d 492, 504 (1995) (quoting State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987)) ("'To the extent that N.C.G.S. § 15A-1446(d)(5) is inconsistent with N.C. R. App. P. 10(b)(3), the statute must fail.'"). We nonetheless choose to exercise our discretion under N.C.R. App. P. 2 to review defendant's arguments.
    A person may be convicted of perjury if he knowingly makes a false statement under oath in a proceeding in a court of competent jurisdiction regarding a matter material to the issues before the court. State v. Horne, 28 N.C. App. 475, 477, 221 S.E.2d 715, 716 (1976). "In a prosecution for perjury, North Carolina requires that the falsity of the oath be established by the testimony of at least two witnesses, or from the testimony of one witness, along with corroborating circumstances." Id. Here, the State relied upon the testimony of Brunson and evidence of corroborating circumstances. When the State is relying upon only the testimony of one witness, "the falsity of the oath must be directly proved by one witness and there must be corroborating evidence of independent and supplemental character, sufficient to resolve the dilemma of weighing [one] oath against [another]." Id. (emphasis original; internal quotations omitted).
    Defendant first argues that any false statements that he made at the 2 June 2000 bond hearing were immaterial. Materiality was a question for the jury. State v. Linney, 138 N.C. App. 169, 177, 531 S.E.2d 245, 252, appeal dismissed and petition for disc. review dismissed ex mero motu, 352 N.C. 595, 545 S.E.2d 214 (2000). Wehold that a jury could have reasonably found that defendant's testimony regarding where Brunson was and what he was doing on the evening of 12 May 2000 was material to the bond hearing.
    As for the sufficiency of the evidence of falsity, defendant does not challenge Brunson's direct testimony, but rather argues that the record does not contain adequate evidence of corroborating circumstances. We disagree.
    Brunson testified that he told defendant that he needed to drive his girlfriend, Saeeda Muhammad, to the airport on 12 May 2000. This testimony would, if believed, tend to prove that defendant's testimony at the bond hearing was untrue. In addition to this testimony, Saeeda Muhammad testified that she had visited Brunson at defendant's home for a week prior to 12 May 2000; that when she flew into the Raleigh-Durham Airport, defendant had picked her up himself; and that defendant knew that she would be flying back to California on 12 May 2000. Since this testimony from a second witness establishes that defendant knew that Ms. Muhammad would have to be driven to the Raleigh-Durham Airport on 12 May 2000, it corroborates Brunson's testimony, especially when considered in connection with evidence regarding the towing receipt.
    According to the State's evidence, defendant assured Brunson's pre-trial release supervisor that he would produce a towing receipt to verify Brunson's whereabouts on 12 May 2000. He called James McGrady to ask for help in obtaining a receipt; McGrady referred him to Sansbury. Defendant paid Sansbury $20.00 to write a falsereceipt suggesting that Brunson had broken down in Cumberland County. Defendant knew Sansbury had not towed his car at all and yet he had Sansbury prepare a receipt stating otherwise and then presented the receipt to the pre-trial release office and the court (during the bond hearing) as if it were authentic. Ms. Muhammad's testimony and this evidence, when considered together, are sufficient to corroborate Brunson's testimony and sufficient to justify denial of defendant's motion to dismiss.
    With respect to the conspiracy charge, defendant argues that the State offered insufficient evidence of an intent to deceive or of an agreement between defendant and Brunson. The evidence regarding defendant's manufacturing of a towing receipt, his repeated assurances to the pre-trial release office, and his continued reliance at the bond hearing on the receipt was sufficient to permit a jury to conclude that defendant had an intent to deceive.
    As for the agreement element of the conspiracy charge, "it is not necessary that the parties should have come together and agreed in express terms to unite for a common object: A mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense." State v. Bindyke, 288 N.C. 608, 615-16, 220 S.E.2d 521, 526 (1975) (emphasis original; internal quotation marks omitted). The existence of a conspiracy may be proven through circumstantial evidence and ordinarily is a question for the jury. State v. Harris, 145 N.C. App. 570, 579, 551 S.E.2d 499, 505 (2001), disc. review denied andappeal dismissed, 355 N.C. 218, 560 S.E.2d 146 (2002).
    Here, the pre-trial release office told Brunson that he needed a towing receipt showing that his car had broken down in Cumberland County in order to avoid being sent to jail. Brunson then immediately told defendant that he needed a verifying towing receipt. On the next business day, defendant faxed a letter to the pre-trial release office vouching that defendant was on a business call on the night that he missed his curfew and, after the supervisor expressed doubt, orally reassured her. Defendant then obtained and submitted to the pre-trial release office a fictitious receipt to support the false business call story, a story that defendant repeated at the bond hearing. This evidence constituted substantial evidence of a conspiracy designed to keep Brunson from having to return to jail.
    Defendant argues as to the obstruction of justice charge that the evidence was insufficient to establish that he knew the towing receipt was fraudulent or that he acted with an intent to deceive. As support for this argument, defendant urges the Court to rely upon his own testimony. On a motion to dismiss, however, "[d]efendant's evidence, unless favorable to the State, is not to be taken into consideration." State v. Franklin, 327 N.C. 162, 172, 393 S.E.2d 781, 787 (1990) (emphasis added). The State's evidence that defendant went to a towing company that he knew had not towed his car and paid to have a fictitious receipt completed in order to suggest that Brunson had broken down in Cumberland County rather than in Wake County provided ample evidence tosupport the obstruction of justice charge.
II
    Defendant also contends that his trial counsel provided ineffective assistance of counsel because he failed to make a motion to dismiss and because he failed to argue that the court should find mitigating factors. "Attorney conduct that falls below an objective standard of reasonableness and prejudices the defense denies the defendant the right to effective assistance of counsel. An IAC claim must establish both that the professional assistance defendant received was unreasonable and that the trial would have had a different outcome in the absence of such assistance." State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001) (citations omitted), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
    Ineffective assistance of counsel claims are usually raised in post-conviction proceedings and not on direct appeal. Such claims may, however, be raised on direct appeal when the cold record reveals that no further factual development is necessary to resolve the issue. Id. at 166, 557 S.E.2d at 524.
    Because we have addressed the question whether the record contains sufficient evidence to support defendant's convictions, defendant has not been prejudiced by his trial counsel's failure to make a motion to dismiss at trial. With respect to the sentencing phase, defendant argues that his trial counsel should have argued for a mitigated sentence based on the evidence offered at the trial. While trial counsel did not argue for a mitigated sentence, defendant did speak on his own behalf. After defendant spoke, thetrial court announced the sentence, stating:
        [I]t appears to the Court, from the jury verdict, that you had a total disregard of our system by your original action. And then you appeared in a hearing subsequent to that, you had an opportunity to correct it. You perjured yourself. And then on top of that, the jury has found you to be totally incredible in your testimony in this courtroom. You had an opportunity to make it right at an early stage, and you chose not to in each and every step available to you.

In light of the rationale underlying the court's sentence, defendant has not demonstrated that the trial court would have decreased the 13 to 16 month sentence had his counsel pointed to his Fayetteville business, his community service organization, his military service, and his lack of a criminal record _ all facts of which the trial court was already aware. We, therefore, overrule this assignment of error.

    No Error.
    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).

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