On appeal, defendant argues that the trial court erred (1) by
refusing to permit defendant to cross-examine an employee of the
North Carolina State Bar, and to offer evidence, with respect to
various matters relating to the authority of the State Bar to
revoke defendant's law license; (2) in denying his motion to
dismiss the charges for insufficient evidence; and (3) in
responding to an inquiry by the jury during its deliberations. We
find no error.
Defendant first argues that the trial court excluded relevant
evidence when it failed to allow him to offer evidence, and to
cross-examine the employee of the North Carolina State Bar who
testified at trial, with respect to the validity of defendant's
license to practice law and the authority of the State Bar to
revoke it. Initially, we note that although there were extensive
pretrial proceedings in this matter, defendant never attempted,
either therein or at trial, to present evidence regarding the
matters of which he now complains. It is well-settled that in
order to preserve an assignment of error to the exclusion of
evidence, the evidence must be offered either at or before trial.
State v. Anthony, 354 N.C. 372, 412, 555 S.E.2d 557, 584 (2001),
cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002);
see also N.C.
Gen. Stat. § 8C-1, Rule 103(a)(2) (2003).
Though his argument to the trial court, and to this Court in
his brief, is difficult to follow, it essentially appears to us
that defendant contends that notwithstanding his completion of law
school and passage of the bar examination, he was only permitted topractice law pursuant to some exception to the law which allowed
African American attorneys to practice law while institutional
segregation prevented them from being members of the North Carolina
Bar Association. Therefore, according to his argument, he was
never admitted to the Bar of the State of North Carolina and could
not have been disbarred. The trial court ruled that defendant
could not collaterally attack the disbarment proceeding, noting
that testimony about the contested disbarment and defendant's
arguments about racial discrimination would confuse the jury.
Defendant contends this evidence was relevant and it was error
for the trial court to exclude it. Relevant evidence makes the
existence of consequential facts more or less probable than it
would be without it. N.C. Gen. Stat. § 8C-1, Rule 401 (2003).
Evidence which is not relevant is inadmissible. N.C. Gen. Stat. §
8C-1, Rule 402. When the proffered evidence does not tend to prove
a fact in issue in the case, the evidence is not relevant.
See
State v. Cronan, 100 N.C. App. 641, 644, 397 S.E.2d 762, 764
(1990)
.
We do not consider evidence regarding defendant's alleged
exclusion from membership in the North Carolina Bar Association, a
voluntary organization, probative of any fact relating to his
admission to the Bar of the State of North Carolina, a regulatory
agency, or to the revocation of his license to practice law.
Therefore, evidence with respect to the matter was not relevant and
was properly excluded.
We note as well, that despite repeated requests from the trial
court, defendant provided no evidence that his disbarment had beenoverturned or held in abeyance nor did he offer any evidence to
show that his conduct fell within any exception to the requirements
of N.C. Gen. Stat. § 84-4 (2004).
In his next assignment of error, defendant contends the trial
court erred in denying his motion to dismiss the charges for
insufficiency of the evidence. To survive a defendant's motion to
dismiss, the State must offer substantial evidence of each element
of a criminal offense. Substantial evidence is evidence which,
when viewed in the light most favorable to the State, “a reasonable
mind might accept as adequate to support a conclusion” of
defendant's having committed each element of the offense with which
the defendant is charged.
State v. Barfield, 127 N.C. App. 399,
401, 489 S.E.2d 905, 907 (1997).
False pretense is “(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. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980).
The offense of engaging in the unauthorized practice of law, as it
arises upon the pleadings in this case, consists of holding one's
self out as competent and qualified to give legal advice and acting
as a lawyer, without being an active member of the Bar of the State
of North Carolina, having been admitted and licensed to practice as
an attorney-at-law. N.C. Gen. Stat. § 84-4 (2003).
Viewed in a light most favorable to the State, the evidence
showed that at the time defendant offered to represent Mr. Williamsas his attorney and accepted a fee for such employment, and at the
time he agreed to represent Mr. Brown and accepted three payments
for a fee for such representation, defendant was not a licensed
member of the Bar, but held himself out as able to provide legal
services. The evidence further showed that notwithstanding his
acceptance of fees upon representing that he would provide legal
services, he performed no such services on behalf of either Mr.
Williams or Mr. Brown. From such evidence, a jury could reasonably
determine that defendant made false representations as to his
ability to represent each of them to deceive the persons to whom
the statements were made in order to obtain money from them. Thus,
there was sufficient evidence to support the jury's verdicts of
guilty. This assignment of error is overruled.
In defendant's final assignment of error he argues that the
the court erroneously re-instructed the jury when answering its
question. After deliberating for thirty-five minutes, the jury
queried the trial court: “If the State does not prove something,
but the defendant admits it, can we use it as evidence?” and the
judge instructed the jury, “The burden is on the State to prove
. . . the case. But in determining . . . whether all of the
elements have been proved, it's appropriate for the jury to examine
and use any facts that are before it, regardless of where they come
from.” Defendant contends that this instruction was too broad,
arguing that since he stipulated to some facts and chose not to
present any evidence, the jury perhaps considered stricken
evidence. We disagree. “After the jury retires for deliberation, the judge may give
appropriate additional instructions to: (1) Respond to an inquiry
of the jury made in open court.” N.C. Gen. Stat. § 15A-1234(a)
(2003);
State v. Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677
(1991). These instructions need only be as explicit as needed “to
enable the jury to understand and apply the law to the evidence
bearing upon the elements of the crime charged.”
Weddington, 329
N.C. at 210
, 404 S.E.2d at 674. “The trial judge is not required
to repeat instructions correctly given during the original charge,
but may do so in his discretion.”
State v. Harper, 96 N.C. App.
36, 43, 384 S.E.2d 297, 301 (1989). Unless the original charge is
erroneous, the trial court “is in the best position to determine
whether instructions should be repeated.”
Id. Regarding stricken
testimony, “we must presume that the jury followed the
instructions” to disregard stricken testimony.
State v. Allen, 141
N.C. App. 610, 615, 541 S.E.2d 490, 494 (2000),
disc. review
denied, 353 N.C. 382, 547 S.E.2d 816 (2001).
The trial court properly reiterated the pertinent instruction
from the charge when responding to the jury's question.
Furthermore, defendant fails to cite any instances of stricken
testimony or stipulations improperly considered by the jury; a
careful review of the record reveals that the only stricken
testimony related to defendant's improper questioning of witnesses
and that defendant stipulated that he was Reginald L. Frazier and
conceded receipt of payments from Damien Brown. Additionally, in
his closing statement the
pro se defendant stated “I'm actuallyguilty of all of this.” Even if the jury's consideration of these
statements as evidence could be held erroneous, there was
sufficient other evidence to support the jury's verdict. This
assignment is overruled and we find that the defendant received a
fair trial free of prejudicial error.
No error.
Judges McCULLOUGH and GEER concur.
Report per Rule 30(e).
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