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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