An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1727


Filed: 21 October 2003


         v.                        Haywood County
                                No. 01 CRS 52722
                                    02 CRS 259

    Appeal by defendant from judgment entered 13 August 2002 by Judge J. Marlene Hyatt in Superior Court in Haywood County. Heard in the Court of Appeals 6 October 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn Jones Cooper, for the State.

    Michael E. Casterline, for defendant-appellant.

    HUDSON, Judge.

    Defendant was found guilty of financial transaction card theft and of financial transaction card fraud. The convictions were consolidated and defendant was sentenced as a habitual felon to 107-138 months.
    The State presented evidence tending to show that on Saturday evening, 15 December 2001, as Ms. Peggy Evans left a Waynesville restaurant, she discovered her wallet was missing from her purse. Her wallet contained, inter alia, a Visa card issued by Champion Credit Union. Ms. Evans did not report the theft of this Visa card until the credit union opened for business the following Monday morning. Paulette Buchanan, an employee of Champion Credit Union,determined that several charges had been made to the card since the previous Saturday evening, including a charge for the rental of a room at the Blue Ridge Motor Lodge in Asheville. Ms. Evans reported the matter to the Waynesville Police Department, which contacted the Asheville Police Department. Officer Casey Roberts of the Asheville Police Department answered a dispatch to the Blue Ridge Motor Lodge on 17 December 2001. He saw defendant and another man, identified as John Paul Davis, seated in a vehicle outside the motel room in question. The officer also saw Ms. Catherine Jean Anderson leave the room. Officer Roberts detained Anderson and the two men. Officer Roberts searched defendant's person and found a number of cards in his pocket. These cards were identified as a Champion Visa credit card, a Citibank Mastercard, a Belk's charge card, a North Carolina driver's license and a Haywood County library card, all in the name of Peggy Evans. The cards also included a J.C. Penney charge card and an MCI/Worldcom card in the name of David Evans, Peggy Evans' husband.
    Anderson testified that on Saturday night, 15 December 2001, she accompanied Johnny Davis to defendant's apartment. Davis and defendant had a number of credit cards. Using a credit card supplied to her by defendant and issued in the name of Peggy Evans, Anderson purchased items which were exchanged for cocaine. She also rented the motel room with the card. Anderson then engaged in a cocaine consumption binge with defendant and Davis.
    Defendant presented no evidence.
    Defendant contends the court erred by denying his motion todismiss the charges. The question presented by a motion to dismiss is whether the State has presented substantial evidence to establish each element of the offense and perpetration of the offense by the accused. State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 415 (1991). In ruling upon the motion, the court must examine 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). If the evidence is sufficient to allow the jury to draw a reasonable inference of the defendant's guilt of the crime charged, the court should submit the case to the jury. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982). Defendant contends the evidence at trial was insufficient to establish that he stole Mrs. Evans' credit cards or that he used them in a fraudulent manner.
     One is guilty of financial transaction card theft in violation of N.C. Gen. Stat. § 14-113.9(a) when one does any of the following:
    (1) Takes, obtains or withholds a financial transaction card from the person, possession, custody or control of another without the cardholder's consent and with the intent to use it; or who, with knowledge that it has been so taken, obtained or withheld, receives the financial transaction card with intent to use it or to sell it, or to transfer it to a person other than the issuer or the cardholder.     

    (2) Receives a financial transaction card that he knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder, and who retains possession with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder.

    (3) Not being the issuer, sells a financial transaction card or buys a financial transaction card from a person other than the issuer.
    (4) Not being the issuer, during any 12-month period, receives financial transaction cards issued in the names of two or more persons which he has reason to know were taken or retained under circumstances which constitute a violation of G.S. 14-113.13(a)(3) and subdivision (3) of subsection (a) of this section.
    (5) With the intent to defraud any person, either (i) uses a scanning device to access, read, obtain, memorize, or store, temporarily or permanently, information encoded on another person's financial transaction card, or (ii) receives the encoded information from another person's financial transaction card.
N.C. Gen. Stat. § 14-113.9(a) (2001).
    In construing this statute, our Supreme Court has stated:
    [A]n accused may violate G.S. 14-113.9(a)(1) in four distinct ways. [Citation omitted.] He may (1) take, (2) obtain, or (3) withhold a credit card from the person, possession, custody or control of another without the cardholder's consent; or (4) he may receive a credit card with intent to use it or sell it or transfer it to some person other than the issuer or cardholder, knowing at the time that the card had been so taken, obtained or withheld. A person violating G.S. 14-113.9(a)(1) in any of the four enumerated ways is guilty of credit card theft. Of course, a person who commits the acts proscribed by G.S. 14-113.9(a)(2), (3) and (4) is also guilty of credit card theft.

State v. Springer, 283 N.C. 627, 632, 197 S.E.2d 530, 534 (1973)(original emphasis omitted). A prima facie case of violation of section 14-113.9(a) is made “when a person has in his possession or under his control financial transaction cards issued in the names of two or more other persons other than members of his immediate family . . ..” N.C. Gen. Stat. § 14-113.10(2001). A financial transaction card is defined as “any instrument or devicewhether known as a credit card, credit plate, bank services card, banking card, check guarantee card, debit card, or by any other name, issued with or without fee by an issuer for the use of the cardholder: (a) in obtaining money, goods, services or anything else of value on credit.” N.C. Gen. Stat. § 14-113.8(4)(a)(2001).
    The evidence in this case established that defendant had in his pocket financial transaction cards issued to two persons, Peggy Evans and David Evans, neither of whom is related to defendant. Pursuant to section 14-113.10, this evidence alone is sufficient to withstand the motion to dismiss the charge of financial transaction card theft.
    Financial transaction card fraud is defined by N.C. Gen. Stat. § 14-113.13(a)(1)(2001), which provides that a person violates the statute:
    when, with intent to defraud the issuer, a person or organization providing money, goods, services or anything else of value, or any other person, he
     (1) Uses for the purpose of obtaining money, goods, services or anything else of value a financial transaction card obtained or retained, or which was received with knowledge that it was obtained or retained, in violation of G.S. 14-113.9 or 14-113.11 or a financial transaction card which he knows is forged, altered, expired, revoked or was obtained as a result of a fraudulent application in violation of G.S. 14-113.13(c); or
     (2) Obtains money, goods, services, or anything else of value by:
     a. Representing without the consent of the cardholder that he is the holder of a specified card; or
     b. Presenting the financial transaction card without the authorization or permission of the cardholder; or
         c. Representing that he is the holder of a card and such card has not in fact been issued; or
. . . .

     (5) Receives money, goods, services or anything else of value as a result of a false, fictitious, forged, altered, or counterfeit check, draft, money order or any other such document having been deposited into an account via an automated banking device, knowing at the time of receipt of the money, goods, services, or item of value that the document so deposited was false, fictitious, forged, altered or counterfeit or that the above deposited item was not his lawful or legal property.

N.C. Gen. Stat. § 14-113.13(a)(2001). Defendant contends the evidence is insufficient because it did not show that defendant himself used the cards, but rather showed that Anderson exclusively used the cards. We disagree.
    Under the principle of acting in concert, “[a] person may be found guilty of committing a crime if he is at the scene acting together with another person with a common plan to commit the crime, although the other person does all the acts necessary to commit the crime.” State v. Jeffries, 333 N.C. 501, 512, 428 S.E.2d 150, 156 (1993). The evidence shows that defendant traveled with Anderson to all of the locations where she used the card. At each location, defendant handed Anderson the card to use, she used the card and returned it to defendant. Defendant went inside two of the stores with Anderson. Together they consumed cocaine obtained as a result of the use of the card. Based upon the foregoing evidence, a jury could reasonably infer that defendant acted in concert to commit the offense with Anderson.
    Defendant's final contention is that the court committed plain error by instructing the jury regarding the doctrine of recentpossession. He argues this instruction made it difficult to determine whether the jury based its verdict on the doctrine of recent possession or the prima facie case of section 14-113.
    To establish plain error, the “defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). According to the doctrine of recent possession, when the evidence shows that a defendant possessed property identified as having recently been stolen, a presumption arises of the defendant's guilt of the theft of the property. State v. Maines, 301 N.C. 669, 673, 273 S.E.2d 289, 293 (1981). The evidence here shows that Mrs. Evans' wallet containing the credit cards was stolen on Saturday night, 15 December 2001, and that within hours after the theft, defendant was seen in possession of the stolen credit cards and other items contained in the wallet. The evidence therefore supported the instruction the court gave.
    No error.
    Judges MCGEE and GEER concur.
    Report per Rule 30(e).         

*** Converted from WordPerfect ***