State v Farley, 163 NC App 612 (03-667) 04/06/2004

Appeal by defendant from judgments entered 22 October 2002 by Judge James W. Morgan in Superior Court, Cleveland County. Heard in the Court of Appeals 22 March 2004.

Attorney General Roy Cooper, by Assistant Attorney General Anne Goco Kirby, for the State.

James L. Goldsmith, Jr. for defendant-appellant.

WYNN, Judge.

    Defendant, Tracy Deon Farley, argues the trial court erroneously denied his motion to dismiss for want of sufficient evidence. We affirm the trial court's denial.
    The State's evidence tended to show that on 31 December 2001, Defendant opened an account at the Premier Federal Credit Union in Kings Mountain, North Carolina. Bank teller, Janice Ollis, assisted Defendant in opening the account. At the time he opened the account, Defendant provided Ms. Ollis with his driver's licence. Although the license showed a Hickory address, Defendant told Ms. Ollis that he lived in Kings Mountain and provided her with a Kings Mountain address. Ms. Ollis made sure that Defendantwas the person depicted in the photograph on the driver's license he submitted, and that his signature on his driver's license matched the one on the credit union signature card. Ms. Ollis also made copies of Defendant's driver's license and what Defendant represented to be his pay stub from work. It took between 20 and 30 minutes for Defendant to open the account, and half of that time was spent exclusively with Ms. Ollis.
    Defendant initially opened the account with a minimum deposit of $25.00 on 31 December 2001, then returned on 2 January 2002 to deposit a check in the amount of $2,500.00. Ms. Ollis again assisted Defendant when he deposited the check on 2 January 2002. She recalled that he signed the back of the check before handing it to her to deposit. She also verified that Defendant's signature on the check matched the signature on his driver's license. On 2 January and 7 January 2002, $1,500.00 and $50.00, respectively, were withdrawn from Defendant's account at the credit union's service center. On 8 January 2002, the $2,500.00 check deposited by Defendant was returned to the credit union as being counterfeit. At that time, Defendant's account had a negative balance of $249.99. The account was subsequently closed, and the cash withdrawn from the account was never returned.
    Detective Corporal Shane Davis of the Kings Mountain Police Department investigated the matter, and subsequently confirmed that Defendant was the same man depicted in the photocopy of a driver's license made by the credit union and shown on a credit union videotape depositing the $2,500.00 counterfeit check. Thedetective subsequently determined that the Kings Mountain address provided on Defendant's account application was a false address.
    At the close of the State's evidence, Defendant moved to dismiss the charges based upon insufficient evidence. The trial court denied the motion, whereupon Defendant presented the following evidence: Defendant testified that he lives in Hickory and that he had never been to Kings Mountain. Defendant denied ever going to Premier Federal Credit Union, opening an account there, seeing Janice Ollis, or having written the checks in question. Defendant noted that he obtained a duplicate driver's license on 13 December 2001, because he lost his original license. Defendant noted that on 31 December 2001, he was at home all day in Hickory with his fiancé and daughter. Defendant also testified that he was at home with his fiancé and daughter until 4:00 p.m. on 2 January 2002, at which time he and a friend drove Defendant's daughter back to Charlotte. Defendant admitted to having prior felony convictions, most notably Defendant admitted to having been charged with counterfeiting checks in Gaston County. Defendant's fiancé, Heather Lail, and long-time friend, DelRay Clark, corroborated Defendant's account of his whereabouts on 31 December 2001 and 2 January 2002.
    Defendant failed to renew his motion to dismiss at the close of all evidence. The jury subsequently found Defendant guilty of forgery, uttering a forged instrument and obtaining property by false pretenses. The trial court consolidated the forgery and uttering convictions and sentenced Defendant to 8-10 monthsimprisonment. The trial court sentenced Defendant to a concurrent sentence of 11-14 months imprisonment for the obtaining property by false pretense conviction. Defendant appeals.
    Defendant's sole argument on appeal is that the trial court erred in denying his motion to dismiss based upon insufficient evidence. We note, however, that this matter was not properly preserved for appellate review, as Defendant failed to renew his motion to dismiss based upon insufficient evidence after presenting evidence, in violation of N.C.R. App. P. 10(b)(3). Moreover, even if the matter were properly before the Court, contrary to Defendant's position, there is plenary evidence to show that Defendant was the perpetrator of the offenses charged so as to submit the matter of his guilt to the jury. Indeed, Ms. Ollis testified that Defendant came into the credit union on 31 December 2001, opened the account in the name of Tracy Deon Farley, returned on 2 January 2002, and deposited a $2,500 check. The evidence indicated Ms. Ollis compared the driver's license photo with the perpetrator and determined they matched. Finally, Ms. Misoura testified Wilson Turner Packaging, L.L.C. did not issue the $2,500 check and that the check was not signed by an authorized person.
    No error.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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