State v Marlow, (03-216) 11/18/2003

Appeal by defendant from judgment entered 23 October 2002 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 27 October 2003.

Attorney General Roy Cooper, by Assistant Attorney General Brent D. Kiziah, for the State.

Sue Genrich Berry, for defendant-appellant.

HUDSON, Judge.

    Defendant appeals his conviction for obtaining property by false pretenses. We find no error and affirm the trial court's judgment.
    The State's evidence tended to show that defendant contracted with complainants April and Frank Wurdock to install vinyl replacement windows in their home. Defendant came to the Wurdock's residence with a sample window, demonstrated its features and available options, and prepared a written contract quoting a total price of $3,645.00. He asked for a downpayment of one-half of the contract price in order to purchase the windows from his supplier. He told the Wurdocks he would need two weeks to obtain the windowsand install them. On 11 September 2000, the Wurdocks contacted defendant to accept his offer, and he returned to their house to collect their check for $1,822.50. Defendant asked that the check be made payable to him individually. The check cleared the Wurdock's account on 14 September 2000. However, despite leaving numerous messages for defendant with his wife and on his telephone answering machine and voice mail, the Wurdocks never heard from defendant again. They never received their windows and were unable to recover the $1,822.50 from defendant. On 20 April 2001, they received notice of defendant's filing for bankruptcy.
    Over objection, the State introduced evidence of a similar transaction between defendant and Margaret and Brian Agnew in June of 2000. As with the Wurdocks, defendant came to the Agnews' home, demonstrated the replacement windows and gave them a written estimate. He returned to their house the following day to execute a written contract and collect one-half of the contract price as down payment. The Agnews presented defendant with a check for the full amount due, $6,300.00, with the understanding that he would deliver the windows the following Thursday and install them on Tuesday. The Agnews never received their windows and heard nothing further from defendant. They subsequently learned that defendant had endorsed the check to a company called Norandex, which applied the payment to defendant's existing debt. The Agnews' numerous attempts to contact defendant and recover their money were unavailing.
    Defendant first claims the trial court erred in refusing toadmit evidence that the Wurdocks had obtained a civil judgment against him in small claims court. However, the State argues, and we agree, that evidence of the Wurdocks' civil judgment against defendant was immaterial to his criminal prosecution. Moreover, because this evidence had minimal, if any exculpatory value, defendant suffered no prejudice from its exclusion. See N.C. Gen. Stat. § 15A-1443(a) (2001).
    Defendant next claims the court erred in admitting evidence of his prior transaction with the Agnews pursuant to N.C.R. Evid. 404(b), which provides as follows:
    Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

N.C.R. Evid. 404(b). Rule 404(b) is a “rule of inclusion of relevant evidence of other crimes, wrongs, or acts which is subject to but one exception, evidence should be excluded if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.” State v. Blackwell, 133 N.C. App. 31, 34, 514 S.E.2d 116, 119, cert. denied, 350 N.C. 595, 537 S.E.2d 483 (1999) (citations omitted). In order to be admissible against a defendant, Rule 404(b) evidence must be both similar to and not too remote in time from the charged offense. See State v. Davis, 101 N.C. App. 12, 19, 398 S.E.2d 645, 649 (1990), disc. rev. denied, 328 N.C. 574, 403 S.E.2d 516 (1991)).        Defendant's dealings with the Agnews in June of 2000 was sufficiently similar and close in time to his transaction with the Wurdocks in September of 2000 to qualify for admission under Rule 404(b). In each case, defendant contracted to install vinyl replacement windows in the parties' homes, obtained a downpayment for the stated purpose of purchasing the windows, and then disappeared. Defendant's modus operandi with the two couples was nearly identical. The Agnews' experience with defendant three months before his encounter with the Wurdocks was probative of his plan and intent to deceive the Wurdocks when he obtained their check for $1,822.50 on 11 September 2000. See State v. Barfield, 127 N.C. App. 399, 404, 489 S.E.2d 905, 909 (1997). Thus, the court properly admitted this evidence.
    Defendant next challenges the denial of his motion to dismiss, arguing that the State showed only that he breached his contract with the Wurdocks, not that he intended to cheat or defraud them. For purposes of our review, we must determine if the evidence, taken in the light most favorable to the State, would permit a reasonable juror to find defendant guilty of each element of the offense beyond a reasonable doubt. The elements of obtaining property by false pretenses are as follows:
        (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. Parker, 354 N.C. 268, 284, 553 S.E.2d 885, 897 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002) (citationsomitted). The State must establish “that the defendant acted knowingly with the intent to cheat or defraud.” Id. (citing State v. Blue, 84 N.C. 807, 809 (1881)). “[W]hen a person obtains something of value by means of misrepresentations with intent to deceive the victim, the requisite intent to cheat or defraud exists.” State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 285 (1980).
    Defendant obtained a check from the Wurdocks for $1,822.50 by promising to purchase and install vinyl replacement windows in two weeks. Defendant cashed the Wurdocks' check, but the Wurdocks never received their windows and never heard from defendant again. Moreover, defendant engaged in an identical transaction with the Agnews three months earlier, with the same outcome. Viewed in the light most favorable to the State, these facts allow a reasonable inference that defendant had no intention of purchasing windows for the Wurdocks when he promised to do so and accepted their money. See Barfield, 127 N.C. App. at 402, 489 S.E.2d at 908. This assignment of error is without merit.
    In his remaining argument, defendant asserts the trial court erred at sentencing by addressing him directly to admit or deny his prior convictions. Defendant did not object to the court's inquiry at trial, and has not assigned plain error on appeal. Accordingly, he has failed to preserve this issue for our review. See N.C.R. App. P. 10(b)(1) and 10(c)(4).
    No error.
    Judges MCGEE and GEER concur.
    Report per Rule 30(e).

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