An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-168
                                          &nb sp; 

Filed: 3 February 2004


    v.                        Onslow County           & nbsp;                
                                01 CRS 056301
EBETT M. RIVERA                     01 CRS 056302
                                 01 CRS 056303
                                 01 CRS 056305

    Appeal by defendant from judgment entered 14 August 2002 by Judge Jay D. Hockenbury in Onslow County Superior Court. Heard in the Court of Appeals 1 December 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Susan R. Lundberg, for the State.

    Adrian M. Lapas for defendant.

    LEVINSON, Judge.

    Defendant (Ebbett M. Rivera) was convicted of felony obtaining property by false pretenses, pursuant to N.C.G.S. § 14-100, and misdemeanor financial transaction card fraud, pursuant to N.C.G.S. § 14-113.13(a)(1). Both charges arose from defendant's use of an ATM card belonging to Joshua Newnam to purchase $8.35 worth of merchandise from a Jim Dandy convenience store. Defendant was also convicted of several other offenses relating to the use of Newnam's card which are not relevant to the present appeal.
    At trial, defendant testified and admitted to using Newnam's ATM card to make the alleged purchases from the Jim Dandy convenience store; however, she alleged that Newnam had given herthe ATM card with permission to withdrawal funds and make purchases. Newnam testified that he had not given the card to defendant and had not authorized her to use his card.
    Defendant appeals from conviction and judgment for obtaining property by false pretenses, contending that the trial court erred by (1) denying her motion to dismiss the charge, and (2) failing to arrest or vacate judgment for the conviction. We address each argument in turn.

    Defendant first argues that the trial court erred in denying her motion to dismiss the charge of obtaining property by false pretenses because there was insufficient evidence that defendant made any representation or that the store clerk was actually deceived. We do not agree.
    The following well-established principles govern a trial court's ruling on a motion to dismiss:
        The trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.
State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (2002) (internal citations and quotation marks omitted).
    Obtaining property by false pretenses is defined as follows:
        If any person shall knowingly and designedly by means of any kind of false pretense whatsoever, whether the false pretense is of a past or subsisting fact or of a future fulfillment or event, obtain or attempt to obtain from any person within this State any money, goods, property, services, chose in action, or other thing of value with intent to cheat or defraud any person of such money, goods, property, services, chose in action or other thing of value, such person shall be guilty of a felony. . . .

N.C.G.S. § 14-100(a)(2003). Our Supreme Court has interpreted G.S. § 14-100(a) as consisting of the following 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. Parker, 354 N.C. 268, 284, 553 S.E.2d 885, 897 (2001) (quoting State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980)). The language of G.S. § 14-100(a) covers “any kind of false pretense whatsoever.” Thus, the representation which constitutes the false pretense “need not come through spoken words, but instead may be by act or conduct.” Parker, 354 N.C. at 284, 553 S.E.2d at 897.
    In the instant case, defendant testified that she purchased milk, soda, and cigarettes from a Jim Dandy convenience store and that she paid for these items by swiping the ATM card belonging to Joshua Newnam. A bank representative testified that the card was not used as a debit or check card, but rather was used as an ATMcard in that a personal identification number (PIN) was entered. Thus, to use the card to pay for the items purchased, defendant had to swipe the card and enter the card owner's PIN. We conclude that defendant's swiping of Newnam's ATM card and entering his PIN provided competent evidence from which the jury could infer that defendant made a representation that she was either the card owner or was authorized by the card owner to make payment with the card. Accord State v. Rogers, 49 N.C. App. 337, 345, 271 S.E.2d 535, 540 (1980). We also conclude that the exchange of goods by a Jim Dandy convenience store representative in return for the unauthorized payment made by defendant constituted sufficient evidence from which the jury could infer deception.
    The evidence, taken in the light most favorable to the State, was sufficient to establish (1) that a representation had been made, and (2) that the representation deceived a Jim Dandy convenience store representative. Defendant's motion to dismiss the false pretenses charge was properly denied. This assignment of error is overruled.
    Defendant next contends that the trial court erred in failing to vacate or arrest the judgment for obtaining property by false pretenses. We do not agree.
    Defendant's first argument in support of arrested judgment is that the offenses of misdemeanor financial transaction card fraud and obtaining property by false pretenses are mutually exclusive such that defendant could not be convicted of both based on asingle transaction. “Where several offenses charged allegedly arise from the same transaction, and the offenses are mutually exclusive, a defendant may not be convicted of more than one of the mutually exclusive offenses.” State v. Hall, 104 N.C. App. 375, 386, 410 S.E.2d 76, 82 (1991) (citing State v. Speckman, 326 N.C. 576, 578, 391 S.E.2d 165, 167 (1990)). Defendant would have us apply this doctrine to the instant case because “either defendant intended to defraud the Jim Dandy store or to defraud [the] Credit Union [which issued the ATM card].” We conclude, however, that the doctrine of mutual exclusivity is not applicable in the present case.
    Defendant argues in the alternative that the false pretenses judgment must be arrested because conviction of both financial transaction card fraud and obtaining property by false pretenses based on a single transaction is barred by double jeopardy concerns. We disagree.
    “'With respect to cumulative sentences imposed in a single trial, the Double Jeopardy clause does no more than prevent the sentencing court from prescribing greater punishments than the legislature intended.'” State v. Gardner, 315 N.C. 444, 453, 340 S.E.2d 701, 708 (1986) (quoting Missouri v. Hunter, 459 U.S. 359, 366, 74 L. Ed. 2d 535, 542 (1983)). In determining legislative intent, one relevant consideration is the Blockburger test: “'[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whethereach provision requires proof of a fact which the other does not.'” Id. at 454, 340 S.E.2d at 708-09 (quoting Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 309 (1932)). However, “double jeopardy does not prohibit multiple punishment for offenses when one is included within the other under the Blockburger test if both are tried at the same time and if the legislature intended for both offenses to be separately punished.” Id.
        In single prosecution situations, the presumption raised by the Blockburger test is only a federal rule for determining legislative intent as to violations of federal criminal laws and is neither binding on state courts nor conclusive. When utilized, it may be rebutted by a clear indication of legislative intent; and, when such intent is found, it must be respected, regardless of the outcome of the application of the Blockburger test. That is, even if the elements of the two statutory crimes are identical and neither requires proof of a fact that the other does not, the defendant may, in a single trial, be convicted of and punished for both crimes if it is found that the legislature so intended.

Id. at 455, 340 S.E.2d at 708-09 (emphasis added). “When each statutory offense has an element different from the other, the Blockburger test raises no presumption that the two statutes involve the same offense.” Id. Indeed, the “fact that each crime requires proof of an element, which the other does not, demonstrates the intent of the General Assembly to allow multiple punishments to be imposed for the separate crimes.” State v. Haynesworth, 146 N.C. App. 523, 531, 553 S.E.2d 103, 109 (2001); see also State v. Swann, 322 N.C. 666, 677, 370 S.E.2d 533, 539 (1988).    In the instant case, we note that the elements of financial transaction card fraud and obtaining property by false pretenses are not identical. Compare G.S. § 14-100(a) with G.S. § 14- 113.13(a)(1)(2003). Obtaining property by false pretenses requires that a person actually be deceived. G.S. § 14-100(a). Financial transaction card fraud requires use of “a financial transaction card obtained or retained, or which was received with knowledge that it was obtained or retained, [by financial transaction card] or [forgery] or a financial transaction card which [the user] knows is forged, altered, expired, revoked or was obtained as a result of a fraudulent application.” G.S. § 14-113.13(a)(1). Thus, each offense requires proof of an element which the other does not. Moreover, on the facts of this case, we do not discern a meritorious double jeopardy concern. This assignment of error is overruled.
    No error.
    Chief Judge EAGLES concurred prior to 31 January 2004.
    Judge MARTIN concurs.
    Report per Rule 30(e).

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